David Hume’s legal theory has normally been interpreted as bearing close affinities to the English common law theory of jurisprudence. I argue that this is not accurate. For Hume, it is the nature and functioning of a country’s legal system, not the provenance of that system, that provides the foundation of its authority. He judges government by its ability to protect property in a reliable and equitable way. His positions on the role of equity in the law, on artificial (...) reason and the esoteric nature of the law, and on the role of judges in the legal system are all at odds with those of the common lawyers. (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)

When he gave his first political work the title The Elements of Law Natural and Politic, Hobbes signalled an agenda to revise and incorporate continental Roman and Natural Law traditions for use in Great Britain, and from first to last he remained faithful to this agenda, which it took his entire corpus to complete. The success of his project is registered in the impact Hobbes had upon the continental legal system in turn, specific aspects of his theory, as for instance (...) the right to punish, entering the European civil code through Pufendorf, and remaining to this day. This is a topic of considerable importance at a time at which the UK is considering scrapping the European Union, with all the attendant the legal ramifications. But strangely, despite some acknowledgement of Hobbes’s contribution to European civil law, and specifically the German civil code, the larger legal context for his thought has not thus far been systematically addressed. -/- Key words: Hobbes, civil law, common law, jurisprudence, ‘artificial reason’, natural law, sovereignty,. (shrink)

This article makes a moral argument for universal access to health care and for the legitimate function of government to guarantee that access. Constructed as a reply to the libertarian argument against universal access, this article utilizes the moral and political theory of John Locke, favored by libertarianism, to develop a Lockean argument for a view contrary to the libertarian philosophy. In particular, the argument here shows how libertarianism’s neglect of a crucial element of the natural-law tradition, to which Locke (...) adhered, not only undercuts the libertarian objection to universal access to health care but also underwrites an alternative argument in favor of such. (shrink)

The legalization of physician-assisted suicide (PAS) in several states in the U.S. and the growing social approval of euthanasia have created confusion, pastoral challenges, and conflicts between Catholic and non-Catholic healthcare institutions. For many of its supporters, the legal and moral legitimacy of PAS is grounded on the right to autonomy. I concur with Callahan that the right to autonomy, while may be pertinent when it comes to moral debate on suicide, does not justify PAS. Unlike suicide, PAS is not (...) a private matter. It involves the medical institution represented by the physician who is given authority to legitimize the termination of human life, and the society that will give it an imprimatur. If autonomy per se is the basis of this so-called dignity of PAS from the viewpoint of its proponents, they will not hesitate to declare suicide as more dignified than any other way of dying. But current laws in the U.S. on PAS are silent with regard to legal rights to suicide or assisted suicide in general. According to the U.S. Supreme Court, the legislature is the venue for the legalization of PAS, not the court, for PAS is about social approval of assisted suicide. Therefore, the debate concerning the legalization of PAS should shift from individual rights to common good, from autonomy to collective harms and benefits, and from justifying individual cases of PAS to legitimizing it as a social policy. (shrink)

Many wrongly believe that emotion plays little or no role in legal reasoning. Unfortunately, Langdell and his “scientific” case method encourage this error. A careful review of analysis in the real world, however, belies this common belief. Emotion can be cognitive, and cognition can be emotional. Additionally, modern neuroscience underscores the “co-dependence” of reason and emotion. Thus, even if law were a certain science of appellate cases (which it is not), emotion could not be torn from such “science.” -/- (...) As we reform legal education, we must recognize the role of cognitive emotion in law and legal analysis. If we fail to do this, we shortchange law schools, students, and the bar in grievous ways. We shortchange the very basics of true and best legal analysis. We shortchange at least half the universe of expression (the affective half). We shortchange the importance of watching and guarding the true interests of our clients, which interests are inextricably intertwined with affective experience. We shortchange the importance of motivation in law, life, and legal education. How can lawyers understand the motives of clients and other relevant parties without understanding the emotions that motivate them? How can lawyers hope to persuade judges, other advocates, or parties across the table in a transaction without grasping affective experience that motivates them? How can law professors fully engage students while ignoring affective experience that motivates students? Finally, we shortchange matters of life and death: emotions affect health and thus the very vigor of the bar. -/- Using insights from practice, modern neuroscience, and philosophy, I therefore explore emotion and other affective experience through a lawyer’s lens. In doing this, I reject claims that emotion and other affective experience are mere feeling (though I do not discount the importance of feeling). I also reject claims that emotion and other affective experience are necessarily irrational or beyond our control. Instead, such experience is often intentional and quite rational and controllable. After exploring law and affective experience at more “macro” levels, I consider three more specific examples of the interaction of law and emotion: (i) emotion, expression, and the first amendment, (ii) emotion in legal elements and exceptions, and (iii) emotion and lawyer mental health. To provide lawyers and legal scholars with a “one-source” overview of emotion and the law, I have also included an Appendix addressing a number of particular emotions. -/- Keywords: Emotion, Cognitive Emotion, Reason, Logos, Pathos, Legal Analysis, Legal Reasoning, Neuroscience, Philosophy, Persuasion, Rhetoric, Expression, First Amendment, Free Speech, Common Law Murder, Mental Health, NAACP v. McCrory, Anger, Contempt, Disgust, Hate, Malice. (shrink)

The text offers a comprehensive introduction to business law and the Jordanian legal system. The textbook provides for key concepts and terms, contract basics, corporate structures, legal aspects of buying and selling, common pitfalls, international business issues and more. The text is comprehensive, in that there are chapters that cover what one would expect a business law text to cover, including intellectual property, real property, insurance, and bankruptcy.

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)

This paper is about why voluntary associations, such as churches, unions and political parties, are subject to natural justice requirements in common law: in other words, why they are required to treat their members fairly. These requirements are typically imposed (under the name of procedural fairness) by public law on exercises of state authority, but voluntary associations do not exercise state authority. Voluntary associations are set up in private law, as structures of property and contract, but property and contract (...) law do not ordinarily require rights to be exercised in accordance with natural justice. What is needed is an account which locates voluntary associations within private law while adverting to what they have in common with the state: that they make and apply rules to facilitate human interaction. I propose such an account, drawing on an idea from Lon Fuller. Natural justice requirements on voluntary associations are grounded in the rule of law. (shrink)

Humeanism about laws of nature is, roughly, the view that the laws of nature are just patterns, or ways of describing patterns, in the mosaic of events. In this paper I survey some of the (many!) objections that have been raised to Humeanism, considering how the Humean might respond. And I consider how we might make a positive case for Humeanism. The common thread running through all this is that the viability of the Humean view relies on the Humean (...) having an importantly different conception of explanation to the anti-Humean. (shrink)

W NINIEJSZYM opracowaniu analizuję klauzulę dobra wspólnego zawartą w art. 1 Konstytucji Rzeczypospolitej Polskiej z 2 kwietnia 1997 r., zmierzając do uwyraźnienia, w jakim sensie można mówić o jej prawnonaturalnym charakterze (zatem i do zarysowania możliwych znaczeń zwrotu "prawnonaturalny charakter klauzuli dobra wspólnego") oraz do ujawnienia „momentów" prawnonaturalnych, które mogą wchodzić w grę przy interpretacji tej klauzuli.

Resources for Feminist Research, Vol. 3, No. 4, pp. 44-45, 1985 In this brief article, written in 1984 and published the following year, Lucinda Vandervort sets out a comprehensive agenda for enforcement of sexual assault laws in Canada. Those familiar with her subsequent writing are aware that the legal implications of the distinction between the “social” and “legal” definitions of sexual assault, identified here as crucial for interpretation and implementation of the law of sexual assault, are analyzed at length in (...) “Mistake of Law and Sexual Assault: Consent and Mens Rea” (1986), published at (1987-88) 2(2) Canadian Journal of Women and the Law, 233 309. In that article the author argued that most mistakes about consent are not mistakes about a “fact” that may sometimes negative mens rea, but are actually mistakes about the law that afford accused no excuse under either Canadian common law or statutory criminal law. She argued further that consent must be interpreted as “voluntary agreement” and must be affirmatively and unequivocally communicated in order to operate as an effective waiver of a person’s legal right to be free from interference with his or her bodily integrity. That article was a central reference point in the consultations leading to the 1992 amendments to the sexual assault provisions in the Canadian Criminal Code and in some key decisions by the Supreme Court of Canada in sexual assault cases in the 1990’s. As a result of a gradual transformation of theoretical analysis of the law of mens rea and consent in Canada, culpable awareness is now understood by many jurists and criminal law theorists quite differently than it was twenty-five years ago. As Vandervort acknowledged in her 1984 Agenda for Action, however, clarity in legal theory and legal doctrine is no guarantee of how sexual assault laws will operate in practice. Theory and practice, doctrine and its implementation, often diverge. This phenomenon is still seen in some decisions taken at the trial, pre-trial, and pre-charge stages in sexual assault cases. Police, prosecutors, and many trial judges, like accused, may often be influenced by traditional attitudes about sexual consent and mistaken about the law of consent. Accordingly, in her recent work Vandervort re-visits and re-examines the exercise of discretion by police, prosecutors, and the judiciary. An example is her 2009 article “Legal Subversion of the Criminal Justice Process? Judicial, Prosecutorial and Police Discretion in R. v. Edmondson, Kindrat and Brown” in Sexual Assault Law, Practice & Activism in a Post-Jane Doe Era, edited by Elizabeth Sheehy (Ottawa: University of Ottawa Press, 2012). In this and some of her other recent work, the distinctions between social and legal norms and questions of fact and law, previously analyzed with the objective of clarifying the law, are used to control the effects of social ignorance and partiality in the handling of sexual assault complaints by decision-makers in the criminal justice system at trial and pre-trial. Lucinda Vandervort’s published and unpublished legal and philosophical writings on sexual assault and sexual assault law illustrate the development of a socio-legal scholar’s “Agenda for Action” into a principled, pragmatic, open-ended exercise in “institutional design.” Across two centuries, from the revolutionary era of the 18th century to the present, other radical egalitarians would recognize both the impetus for the project and many features of the political and cultural resistance to it. (shrink)

In 1985, German sociologist Niklas Luhmann published a monograph on ecology, which appeared in English translation in 1989 as Ecological Communication. It contained many original insights for ecological thinking and, despite being well-reviewed upon publication, has had a relatively minor impact on Anglophone environmental discourse. This inattention is also present in environmental law, which has recently seen an increase in legal theories that challenge its mainstream. This contribution first investigates why Ecological Communication has received scant attention, pointing to changes in (...) the climatic context in which it first appeared and the reactionary nature of its arguments. Recognising that the work nevertheless contains critical theoretical insights for environmental law scholarship, the second aim of the article is to spotlight what from Ecological Communication remains relevant at the hand of three common claims progressive researchers level against mainstream environmental law: The critique of law's marriage to Cartesian dualism, that law should be better informed by climate science,of and law's anthropocentrism. Finally, environmental lawyers are called upon not to ignore Ecological Communication but to engage with it fruitfully. (shrink)

Some think that logic concerns the “laws of truth”; others that logic concerns the “laws of thought.” This paper presents a way to reconcile both views by building a bridge between truth-maker theory, à la Fine, and normative bilateralism, à la Restall and Ripley. The paper suggests a novel way of understanding consequence in truth-maker theory and shows that this allows us to identify a common structure shared by truth-maker theory and normative bilateralism. We can thus transfer ideas from (...) normative bilateralism to truth-maker theory, such as non-transitive solutions to paradox, and vice versa, such as notions of factual equivalence and containment. (shrink)

The common view that Hume is a regularity theorist about laws of nature isn’t textually well grounded. The texts show that he thinks of them as objective governing principles that could conceivably be violated while still counting as a law of nature. This is a standard view at the time, and Hume borrows it from others. He implies that the best evidence for rational religion is the exceptionless workings of the laws of nature, he argues that suicide isn’t incompatible (...) with the will of God by identifying his will with the laws of nature, and he has Philo argue for the existence of God from the simplicity of the laws governing the world. He sheds some of the theological baggage that laws of nature carry at the time, but not all of it. (shrink)

Certain results, most famously in classical statistical mechanics and complex systems, but also in quantum mechanics and high-energy physics, yield a coarse-grained stable statistical pattern in the long run. The explanation of these results shares a common structure: the results hold for a 'typical' dynamics, that is, for most of the underlying dynamics. In this paper I argue that the structure of the explanation of these results might shed some light --a different light-- on philosophical debates on the laws (...) of nature. In the explanation of such patterns, the specific form of the underlying dynamics is almost irrelevant. The conditions required, given a free state-space evolution, suffice to account for the coarse-grained lawful behaviour. An analysis of such conditions might thus provide a different account of how regular behaviour can occur. This paper focuses on drawing attention to this type of explanation, outlining it in the diverse areas of physics in which it appears, and discussing its limitations and significance in the tractable setting of classical statistical mechanics. (shrink)

A common feature of all standard theories of the laws of nature is that they are "absolutist": They take laws to be either all metaphysically necessary or all contingent. Science, however, gives us reason to think that there are laws of both kinds, suggesting that standard theories should make way for "non-absolutist" alternatives: theories which accommodate laws of both modal statuses. In this paper, we set out three explanatory challenges for any candidate non-absolutist theory and discuss the prospects of (...) the two extant candidates in light of these challenges. We then develop our own non-absolutist theory, the essentialist DTA account, which combines the nomic-necessitation or DTA account with an essentialist approach to metaphysical modality in order to meet the three explanatory challenges. Finally, we argue that the distinction between kinematical and dynamical laws found in physical theories supports both non-absolutism in general and our proposed essentialist DTA view in particular. (shrink)

The object of this paper is to elaborate an understanding of Islamic law and legal theory in terms of the conceptual framework provided by Legal Positivism. The study is not based on denying or contesting the claim of Islamic law to being of divine origin; rather, it is based on the historical reality of Islamic law as part of a (once) living legal tradition, with structure, method, and theory, regardless of claims of origin. It will be suggested that Ash‘arism may (...) be taken as providing an Islamic version of Legal Positivism, and that the objections which Mu‘tazilism raised in the face of Ash‘arism were not different in substance from some of the objections that have been directed at contemporary Legal Positivism. It will also be suggested that the Ash‘arites and the Mu‘tazilites were not opposed to each other in the way they are commonly supposed to have been. Rather, they were preoccupied with different notions of what it is to be obliged (to have an obligation) to do something. (shrink)

ABSTRACTThe question of how common usage could be constitutive for the meaning of linguistic expressions has been discussed by Renaissance philosophers such as Lorenzo Valla, and it also played an important role in Renaissance theories of juridical interpretation. An aspect of the analysis of common usage in Renaissance theories of juridical interpretation that concerns the role of presumption has not yet found much attention. Renaissance jurists such as Simone de Praetis, Nicolaus Everardus, and Aimone de Cravetta saw that (...) both the usage of Latin by practitioners of law and the vernacular common usage of ordinary people often differed from the technical definition of legal concepts as laid down by ancient jurists or modern legislators. In some cases, they ascribed both to Latin and to vernacular common usage the power of changing the meaning of juridical terms. Still, they were aware of the fact that matters of common usage involve always a degree of uncertainty. The methodological notion of presumption is one of the concepts that figured most prominently in Renaissance approaches to the problem of uncertainty, and, in particular, it was applied in the analysis of meaning-change of legal concepts through common usage. (shrink)

This Essay discusses whether U.S. law is ready for artificial intelligence (“AI”) which is headed down the road of blurring the line between human and machine minds. Perhaps the most high-profile and recent examples of AI are Large Language Models (“LLMs”) such as ChatGPT and Google Gemini that can generate written text, reason and analyze in a manner that seems to mimic human capabilities. U.S. law is based on English common law, which in turn incorporates Christian principles that assume (...) the dominance and uniqueness of humankind. U.S. law assumes human communication skills are accompanied by attributes such as consciousness and Free Will (“FW”) that, in turn, underpin critical legal concepts such as mens rea – i.e., intent. Philosophers and others generally agree that consciousness is necessary for FW. On the assumption that human beings possess consciousness that supports FW, the law thereafter deems human beings capable of acting with legal consequences, from entering into contracts to committing crimes. With a focus on LLMs, the Essay suggests that U.S. law may struggle to respond to AI because the technology disrupts the law’s assumptions regarding the uniqueness of human traits and abilities such as consciousness, FW, written communications and reasoning. (shrink)

In general, Confucians have taken a dim view of the law. They have felt warranted in this view by a reading of Confucius’ Analects 2.3 in which the Master apparently disparages law-centered governance. Two great Confucian philosophers, however, Zhu Xi and Jeong Yakyong (widely known by his pen name, Dasan), view the role of law in society differently. Like all Confucians, they teach the cultivation of virtue, but alongside building social harmony through ritual and good character, these two philosophers perceive (...) that social order also requires the penal law. In this paper, I argue that Zhu Xi and Dasan, and Dasan in particular, follow the evidentiary lead of the classical Chinese philosopher Mozi to support their legal philosophy. Mozi offered three standards for establishing truth claims: empirical evidence from common life, authoritative evidence, and evidence of outcomes. Mozi’s empirical standard takes evidence of common life from what ordinary people have seen. Zhu Xi and Dasan take the evidence of common life, not from what the people have seen, but from common understandings contained in the written language. They use this approach to arrive at a different understanding of Analects 2.3 than other Confucians, one that relates the content of that passage to Analects 12.17. They interpret the passage on a philological basis that supports the presence of penal law from a perspective of ordinary life. For authoritative evidence, Zhu Xi and Dasan like Mozi appeal to the authority of the ancient sages, who register their support for penal law. Dasan also follows Mozi’s evidentiary lead in the evidence of outcomes by fully developing a consequential picture of how the absence of law detrimentally affects society. On this point, Dasan establishes a new and revolutionary legal outlook that differs from that of Zhu Xi. I show Dasan taking lessons from the classical Legalists to arrive at this position warranted by the evidence of outcomes. Having satisfied the three evidentiary standards, Dasan thus establishes the importance of the penal law from a Confucian perspective. (shrink)

We argue that common knowledge, of the kind used in reasoning in law and computing is best analyzed using a dialogue model of argumentation (Walton & Krabbe 1995). In this model, implicit premises resting on common knowledge are analyzed as endoxa or widely accepted opinions and generalizations (Tardini 2005). We argue that, in this sense, common knowledge is not really knowledge of the kind represent by belief and/or knowledge of the epistemic kind studied in current epistemology. This (...) paper takes a different approach, defining it in relation to a common commitment store of two participants in a rule-governed dialogue in which two parties engage in rational argumentation (Jackson & Jacobs 1980; van Eemeren & Grootendorst 2004). A theme of the paper is how arguments containing common knowledge premises can be studied with the help of argumentation schemes for arguments from generally accepted opinion and expert opinion. It is argued that common knowledge is a species of provi- sional acceptance of a premise that is not in dispute at a given point in a dia- logue, but may later be defeated as the discussion proceeds . (shrink)

According to an influential and intuitively appealing argument, morality is usually continuous, namely, a gradual change in one morally significant factor triggers a gradual change in another; the law should usually track morality; therefore, the law should often be continuous. This argument is illustrated by cases such as the following example: since the moral difference between a defensive action that is reasonable and one that is just short of being reasonable is small, the law should not impose a severe punishment (...) when the action is almost reasonable and no punishment at all when the action is reasonable. In this Article, I consider two doubts regarding this argument. First, the premise that morality is continuous in such cases is incompatible with the common view that the moral status of actions is not continuous since there is an important difference between actions that are permissible and actions that are wrong— even if this difference is due to a difference that is very small, such as the one between an action whose consequences are the best and an action whose consequences are just slightly less good. This view extends also to the overall moral status of agents given the common assumption that it depends on the moral status of their actions. This is an important challenge that the Continuity Argument should confront. However, I argue that the best account of morality is more scalar than the common view in these respects. Therefore, I conclude that the first premise of the Continuity Argument is correct in this regard, although it is based on a minority view. The second doubt concerns the scope of the second premise: since there are reasons both in favor and against legal continuity, and the applicability and force of these reasons depend not only on various moral propositions but also on contingent non-moral facts, we often lack the evidence to determine the degree to which the law, at a certain place and time, should be continuous, and specifically that it should often be continuous. (shrink)

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

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

In a recent paper (Bird 2001), Alexander Bird argues that the law that common salt dissolves in water is metaphysically necessary - and he does so without presupposing dispositionalism about properties. If his argument were sound, it would thus show that at least one law of nature is meta- physically necessary, and it would do so without illicitly presupposing a position (dispositionalism) that is already committed to a necessitarian view of laws. I shall argue that Bird's argument is unsuccesful.

A common theme from certain circles during the Yugoslav wars was that the seceding republics lacked a right to secede, but that if a right were accorded them by the EC or international community, it would have to be granted to the Serbian minorities in these republics, especially in Bosnia and Herzegovina, on pain of inconsistency. This microcosm argument is in fact unsound. On a reasonable conception of a right of self-determination and secession elaborated here, the Republic of Bosnia (...) and Herzegovina enjoyed a right of secession, while Bosnian Serbs did not. Nor did Bosnian Serbs restrict their claim to such a right to territories in which they held a majority; rather, they demanded "secession" for a whole swathe of lands which lacked even a Serb plurality before their brutal "ethnic cleansing". Either voluntarist or ethnicist conceptions of a right of secession might have been construed as supporting the microcosm argument, but both of those are terrible conceptions of the right of self-determination and secession. (shrink)

The author discusses natural law reasoning, from the 1960s in the context of Pope Paul VI’s Humanae vitae, to recent cultural and intellectual currents and their influence on the tradition. The challenges that have skewed acceptance of a common human nature and the existence of natural law are addressed. The author shows how the debate on contraception initiated this challenge against natural law reasoning and led to a more evolutive concept of human nature. Attention is drawn to a need (...) for natural law theorists trained in both modern science and Thomistic philosophy to engage the different scientific fields to clarify, adapt, rethink, and even modify the natural law language in accord with the latest discoveries compatitible with evolutionary findings. (shrink)

George Boole emerged from the British tradition of the “New Analytic”, known for the view that the laws of logic are laws of thought. Logicians in the New Analytic tradition were influenced by the work of Immanuel Kant, and by the German logicians Wilhelm Traugott Krug and Wilhelm Esser, among others. In his 1854 work An Investigation of the Laws of Thought on Which are Founded the Mathematical Theories of Logic and Probabilities, Boole argues that the laws of thought acquire (...) normative force when constrained to mathematical reasoning. Boole’s motivation is, first, to address issues in the foundations of mathematics, including the relationship between arithmetic and algebra, and the study and application of differential equations (Durand-Richard, van Evra, Panteki). Second, Boole intended to derive the laws of logic from the laws of the operation of the human mind, and to show that these laws were valid of algebra and of logic both, when applied to a restricted domain. Boole’s thorough and flexible work in these areas influenced the development of model theory (see Hodges, forthcoming), and has much in common with contemporary inferentialist approaches to logic (found in, e.g., Peregrin and Resnik). (shrink)

This introduction explains the reasons behind this Special issue and discuss the organization and content of it. The difficulty of a genuine dialogue and understanding between economics, law and humanities, seems to be due not only to the fragmentation of reflections on man, but to a real ‘conflict of anthropologies’. What kind of conceptions of man and human values are presupposed by and / or privileged by economics, law, economic approaches to law and social sciences? How and when do these (...) conceptions come into conflict within and between disciplines? How do these conceptions of man and his values influence the conceptions of economics, law and institutions, and vice versa, how do these last conceptions influence the former? What are the normative, regulatory and practical implications of assuming an anthropological and / or axiological perspective instead of another? This Special issue aims at exploring the possibility of finding a common ground for discussion between economics, law and humanities, through the analysis and comparison of both the conceptions of man, human action and values assumed by economics, law and humanities, and their normative implications. The contributions to this Special issue and its organization are outlined at the end of this introduction. (shrink)

We argue that legal argumentation, as the subject matter as well as a special subfield of Argumentation Studies (AS), has to be examined by making skilled use of the full panoply of tools such as argumentation and story schemes which are at the forefront of current work in AS. In reviewing the literature, we make explicit our own methodological choices (particularly regarding the place of normative deliberation in practical reasoning) and then illustrate the implications of such an approach through the (...) analysis of a case study in the English law of evidence. We argue that a clear distinction must be drawn between practical argumentation and stories. Because of the institutional separation between legal judgment and fact-finding in common-law jury trials, we argue for the combination of argument and story-based analysis. (shrink)

How to make robots safe for humans is intensely debated, within academia as well as in industry, media and on the political arena. Hardly any discussion of the subject fails to mention Isaac Asimov’s three laws of Robotics. We find it curious that a set of fictional laws can have such a strong impact on discussions about a real-world problem and we think this needs to be looked into. The probably most common phrase in connection with robotic and AI (...) ethics, second to “The Three Laws of Robotics”, is “The Trolley Problem”. Asimov’s laws and the Trolley Problem are usually discussed separately but there is a connection in that the Trolley Problem poses a seemingly unsolvable problem for Asimov’s First Law, that states: A robot may not injure a human being or, through inaction, allow a human being to come to harm. That is, it contains an active and a passive clause and obliges the robot to obey both, while the Trolley Problem forces us to choose between these two options. The object of this paper is therefore to investigate if and how Asimov’s First Law of Robotics can handle a situation where we are forced to choose between the active and the passive clauses of the law. We discuss four possible solutions to the challenge explicitly or implicitly used by Asimov. We conclude that all four suggestions would solve the problem but in different ways and with different implications for other dilemmas in robot ethics. We also conclude that considering the urgency of finding ways to secure a safe coexistence between humans and robots, we should not let the Trolley Problem stand in the way of using the First Law of robotics for this purpose. If we want to use Asimov’s laws for this purpose, we also recommend discarding the active clause of the First Law. (shrink)

Ethics and responsibility would be a vexing or awesome topic that the contemporary citizen more likely wishes to avoid giving his or her views or opinions. That is perhaps because the society transforms rapidly and turns to become more diverse from the past decades. These concepts, on the other, comes not in the ancient or middle era classics, but from the near modern context in 18th England and French land. In dealing with the nature and relationship between the two concepts, (...) another notion of morality also comes into a comparative context. Morality, if often interchangeably used with the ethics, could be seen in some differences that ethics is a dimension one step removed from action. So we used to preach our dependents or subjects to conform their conduct to the kind of moral demand, "Exert your best to the interest of nations or society," "Practice a love and humiliation with brothers, sisters and neighbors," "Never be drunken while driving," "Do not commit an adultery or do not steal other’s property," and the likes. Law, then, would be a minimal of morality which prescribes a prohibited conduct and corresponding criminal sanctions proportionally with the gravity of culpability or social harms. Those concepts might share a common element in a great extent, but could be made distinguished in some of subtleties. (shrink)

The law maintains, rather than challenges, the powers that be – or so it is commonly thought. In ‘Rackets and Spirit,’ a little known and untranslated essay, Max Horkheimer complicates this notion by attributing to law a ‘force of resistance’. He contends that, under certain conditions, the legal process develops a logic of its own, one that can become disjointed from the rationale of power. In this Critical Reflection, I look closely at the paragraph in which Horkheimer introduces the notion (...) of a ‘force of resistance’. I argue that Horkheimer develops a theme that he and Theodor W. Adorno return to in the Dialectic of Enlightenment: the spiritual instruments of domination, among them law, have the potential to turn against domination. At the same time, Horkheimer is clear that law does not resist automatically: it takes human agents to put the legal sphere into opposition to the political sphere. I illustrate this thought with respect to the recent history of federal abortion rights in the United States. (shrink)

[This download includes the table of contents and chapter 1.] -/- When we praise, blame, punish, or reward people for their actions, we are holding them responsible for what they have done. Common sense tells us that what makes human beings responsible has to do with their minds and, in particular, the relationship between their minds and their actions. Yet the empirical connection is not necessarily obvious. The “guilty mind” is a core concept of criminal law, but if a (...) defendant on trial for murder were found to have serious brain damage, which brain parts or processes would have to be damaged for him to be considered not responsible, or less responsible, for the crime? The authors argue that evidence from neuroscience and the other cognitive sciences can illuminate the nature of responsibility and agency. They go on to offer a novel and comprehensive neuroscientific theory of human responsibility. (shrink)

This critical edition is the first ever publication of Hale's Of the Law of Nature, which previously existed only in manuscript form. After discussing and defining the law in general, Hale examines the natural law in particular, its discovery and divine origin, and how it relates to both biblical and human laws. Hale's treatise, which was likely written as part of his personal meditations, and was circulated among English lawyers after his death, reveals not only the close relationship between law (...) and theology in his thought, but also the importance of natural law to early modern legal thought. (shrink)

In the Laws, Plato argues that the legislator should attempt to persuade people to voluntarily obey the laws. This persuasion is accomplished through use of legislative preludes. Preludes (also called preambles) are short arguments written into the legal code, which precede laws and give reasons to follow them. In this paper, I argue that Plato’s use of persuasive preludes shows that he endorses the core features of a public reason theory of political justification. Many philosophers argue that Plato’s political philosophy (...) is deeply at odds with contemporary liberal political philosophy. While Plato certainly does not affirm (and even rejects) some of the main features of liberalism, if it could be shown that he endorses some account of public reason (which is a liberal idea to its core), this would suggest that there is more in common between Plato and liberalism than many philosophers think. Furthermore, if combined with the work of philosophers, like C.C.W. Taylor, this could form a cumulative case against those who argue that there is little in common between Plato’s political philosophy and liberalism. In short, by showing that Plato endorses the core features of public reason, I endeavor to show that there is more in common between Plato and liberalism than is often thought. (shrink)

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

I am interested in the use Kant makes of the pure intuition of space, and of properties and principles of space and spaces (i.e. figures, like spheres and lines), in the special metaphysical project of MAN. This is a large topic, so I will focus here on an aspect of it: the role of these things in his treatment of some of the laws of matter treated in the Dynamics and Mechanics Chapters. In MAN and other texts, Kant speaks of (...) space as the “ground,” “condition,” and “basis” of various laws, including the inverse-square and inverse-cube laws of attractive and repulsive force, and the Third Law of Mechanics. Moreover, in his proofs of all the laws just mentioned, the language of “construction” figures prominently, which suggests that Kant’s proofs (somehow) rest on or involve mathematical construction in his technical sense. Such claims give rise to a number of questions. How do properties and principles of space and spaces serve to ground this particular set of laws? Which spatial properties and principles is Kant appealing to? What, if anything, does the spatial grounding of the inverse-square and inverse-cube laws of diffusion (treated in the Dynamics Chapter) have in common with that of the Third treated in the Mechanics Chapter)? What role—if any—does mathematical construction play in Kant’s proofs of these laws? Finally, how if at all, are Kant’s grounding claims consistent with his other commitments—for example, how are they consistent with his notorious denial in Prolegomena §38 that there are any laws that “lie in space” (Prol 4:321)? I offer answers to these questions. (shrink)

Aquinas's account of law as an ordering of reason for the common good of a community depends on the mereology that covered his theory of parthood relations, including the relations of parts to parts and parts to wholes. Aquinas argued that 'all who are included in a community stand in relation to that community as parts to a whole', and 'every individual person is compared to the whole community as part to whole'. Aquinas held that the perfection of wholes (...) through the proper ordering of their parts does not entail the elimination of diversity, but in many cases requires diversity. Aquinas argued that there are two ways of ordering parts within a whole. Firstly, the parts are ordered with respect to one another, and secondly, the parts are ordered toward an end. The ordering of a whole's parts to one another is always for the sake of the ordering of the whole to its extrinsic end. Aquinas argued that the good toward which the law directs a community is called the 'common good' of that community. The common good or common end toward which members of a community are ordered can be the sort of end that the agents bring into existence through their own actions such as justice within a community, or the sort of end that can exist apart from the actions of the agents. (shrink)

In the Principles of Philosophy, Descartes attempts to explicate the well-known phenomena of varying bodily size through an appeal to the concept of "solidity," a notion that roughly corresponds to our present-day concept of density. Descartes' interest in these issues can be partially traced to the need to define clearly the role of matter in his natural laws, a problem particularly acute for the application of his conservation principle. Specifically, since Descartes insists that a body's "quantity of motion," defined as (...) the product of its "size" and speed, is conserved in all material interactions, it is imperative that he explain how solidity influences the magnitude of this force. As a means of resolving this problem, Descartes postulated an idealized condition of "perfect solidity" which correlates a body's "agitation" force (a forerunner of Newton's concept of non-accelerating, or "inertial" motion) with the interplay of its volume, surface area, and composition of minute particles. This essay explores this often misunderstood aspect of Descartes' physics, as well as the special function of idealized conditions in his collision rules. Contrary to those commentators who regard "perfect solidity" as a stipulation on bodily impact, this notion, it will be argued, is primarily concerned with the internal composition of macroscopic bodies, and only indirectly with their collision characteristics. Along the way, many of Descartes' hypotheses will be shown to display a level of sophistication and intricacy that, despite their essential incompatibility, belie several of the common misconceptions of Cartesian science. (shrink)

Could it be right to convict and punish defendants using only statistical evidence? In this paper, I argue that it is not and explain why it would be wrong. This is difficult to do because there is a powerful argument for thinking that we should convict and punish defendants using statistical evidence. It looks as if the relevant cases are cases of decision under risk and it seems we know what we should do in such cases (i.e., maximize expected value). (...) Given some standard assumptions about the values at stake, the case for convicting and punishing using statistical evidence seems solid. In trying to show where this argument goes wrong, I shall argue (against Lockeans, reliabilists, and others) that beliefs supported only by statistical evidence are epistemically defective and (against Enoch, Fisher, and Spectre) that these epistemic considerations should matter to the law. To solve the puzzle about the role of statistical evidence in the law, we need to revise some commonly held assumptions about epistemic value and defend the relevance of epistemology to this practical question. (shrink)

Certain results, most famously in classical statistical mechanics and complex systems, but also in quantum mechanics and high-energy physics, yield a coarse-grained stable statistical pattern in the long run. The explanation of these results shares a common structure: the results hold for a ‘typical’ dynamics, that is, for most of the underlying dynamics. In this paper I argue that the structure of the explanation of these results might shed some light—a different light—on philosophical debates on the laws of nature. (...) In the explanation of such patterns, the specific form of the underlying dynamics is almost irrelevant. The constraints required, given a free state-space evolution, suffice to account for the coarse-grained lawful behaviour. An analysis of such constraints might thus provide a different account of how regular behaviour can occur. This paper focuses on drawing attention to this type of explanation, outlining it in the diverse areas of physics in which it appears, and discussing its limitations and significance in the tractable setting of classical statistical mechanics. (shrink)

This paper explores two ideas in Aristotle: the idea that a just person is necessarily a lawful and law-abiding citizen, and second, the idea that the virtuous person necessarily cares about the common good. In this paper, I show that justice and its concern for the common good is central to Aristotle’s conception of the virtuous agent, and that justice, in turn, cannot be understood apart from the various laws that states devise for the common benefit.

One of the best-known members of the United Nations Commission which drafted the 1948 "Universal Declaration of Human Rights," Jacques Maritain, famously held that the "natural rights" or "human rights" possessed by every human being are grounded and justified by reference to the natural law.' In many quarters today, the notion of the natural law, and arguments for a set of natural rights grounded in the natural law, have come under fierce attack. One common line of attack is illustrated (...) by the arguments of some utilitarians, for whom "natural law thinking" is mistaken insofar as it implies that there is an absolute moral prohibition against violating any human being's "natural rights." Even if there is such a thing as "natural rights," these utilitarians argue, such rights - including even the natural "right to life" - are necessarily relational, and thus have meaning only within the context of a larger social whole. As a result, the argument goes, the supposed "natural rights" possessed by individual human beings are never inviolable or unconditional, but instead always negotiable and subject to being "traded away" for the sake of greater social utility. Consider just one alleged counter-example to the notion that there are inviolable or unconditional "natural rights": it is well-known that approximately 36,000 people in the United States die every year as a result of influenza infections or influenza-related complications.' There is little doubt that hundreds, and probably even thousands, of human lives would be saved every year if local governments were to pass laws requiring flu vaccinations for all members of at-risk populations (e.g., the very young and the very elderly). It would seem that there would be broad support for mandated flu vaccinations- no matter what the expense - if human lives would be saved and if the natural "right to life" is inviolable or unconditional.' And yet no such life-saving laws exist, apparently because citizens and legislators believe that the social costs and inconveniences would be too great. According to the utilitarian position, this demonstrates - contrary to what Ronald Dworkin and others say about rights' - that rights do not trump utility, but in fact are quite regularly and reasonably trumped by utility. In light of such contemporary understandings and policies, can natural law thinking about natural rights be made credible? In what follows, I shall argue that utilitarian thinkers are correct to hold that rights are intrinsically relational; but they are wrong to conclude that the relational character of rights entails that "natural rights" are not inviolable or not unconditional. (shrink)

While contemporary accounts understand esteem and self-esteem as essentially competitive phenomena, early modern natural law theorists developed a conception of justified esteem and self-esteem based on naturally good character traits. This article explores how such a normative conception of esteem and self-esteem is developed in the work of Christian Wolff. Two features make Wolff’s approach distinctive: He uses the analysis of common notions that are expressed in everyday language to provide a foundation for the aspects of natural law on (...) which his conception of natural duties of esteem depends. He develops a non-competitive conception of esteem and self-esteem into a cooperative conception, according to which enhancing the esteem in which others are held is seen as a tool for promoting self-perfection. Wolff’s ideas offer a solution to the well-known problems connected with competitive life-styles, and at the same time assign a central role in moral motivation to the desire of being esteemed and of having high self-esteem. Moreover, due to his emphasis on presenting a philosophical analysis based on common notions, he offers a solution that is meant to be persuasive from the perspective of everyday morality. (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 (...) class='Hi'>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)

This chapter focuses on the dispute between necessitarians and contingentists, mainly addressing the issue as to whether laws of nature are metaphysically necessary or metaphysically contingent with a weaker kind of necessity, commonly referred to as natural, nomological, or nomic necessity. It is assumed here that all fundamental properties are dispositional or role properties, making the dispute a strictly verbal one. The existence of categorical intrinsic properties as well as dispositional properties is also assumed and the relationship between them examined. (...) Finally, the chapter concludes by returning to the debate between necessitarians and contingentists under the assumption that both dispositional and categorical fundamental properties exist. It is argued here that necessitarian positions can be recast as contingentist, but that there are unequivocally contingentist positions preferred because they are less mysterious despite being ontologically more complex. (shrink)

The author poses a question: which of the two fundamental, constitutional values – common good or human dignity – can be considered to be the cornerstone, the unifying value in the Constitution of the Republic of Poland from 1997. The paper shows the crucial reasons for accepting each of these values as primary and also presents the underlying relationships between these values . The prominence of a given value for defining the aim of the constitution and the legal order (...) based on it was accepted as the most important aspect for determining the order of primacy. In respect of the direct aims of activities of public authorities and more broadly – of the aims of subjects whose activities are defined by the constitution – the primary value should be common good understood as certain social conditions of life which support human development. It defines the space in which other constitutional values, also human dignity, are integrated. Human dignity, however, the primary value defining human being, gives the reason why human development is a first and autonomous aim of the constitutional order. In this respect dignity has priority before common good. -/- Autor stawia pytanie o to, którą z fundamentalnych wartości konstytucyjnych – dobro wspólne czy godność człowieka – można uznać za wartość pierwszą i stanowiącą podstawę spójności aksjologicznej Konstytucji RP z 2 kwietnia 1997 roku. Wskazane są zasadnicze racje przemawiające za uznaniem każdej z tych wartości za wartość pierwszą i identyfikowane są zasadnicze relacje zachodzące między tymi wartościami. Za aspekt najistotniejszy dla ustalenia pierwszeństwa którejś z tych wartości uznana jest doniosłość danej wartości dla określenia celu konstytucji i opartego na niej porządku prawnego. Z punktu widzenia bezpośredniego celu działań władzy publicznej i szerzej – podmiotów, których działanie wyznaczone jest porządkiem konstytucyjnym, wartością tą jest dobro wspólne wyznaczające przestrzeń, w której integrowane są inne wartości konstytucyjne, z godnością włącznie. Dobro wspólne jest celem porządku konstytucyjnego ze względu na godność człowieka, która czyni jego rozwój pierwszym i szczególnym – autotelicznym dobrem. W tej perspektywie godność ma pierwszeństwo przed dobrem wspólnym. (shrink)