This paper examines the extent to which dispute resolvers in customary law systems provide widely understandable justifications for their decisions. The paper first examines the liberal-democratic reasons for the importance of publicity, understood to be wide accessibility of legal justification, by reviewing the uses of publicity in Habermas’ and Rawls’ accounts of the rule of law. Taking examples from Sierra Leone, the paper then argues that customary law systems would benefit from making local dispute resolution practices, such as (...) “begging” from elders, witchcraft, and customary law judgments, more widely accessible. The paper concludes that while legal pluralism is usually taken to be an analytical concept, it may have a normative thrust as well, and that publicity standards would also apply to formal courts in developing countries, which are also typically “defective” along this dimension. (shrink)

The paper presents a novel take on the character of South Africa’s governance structure. It argues that, insofar as it constitutionally recognises traditional authorities, figures who rule in accordance with idiosyncratic and localised customary laws, as well as instigate a cheek-by-jowl existence of an asymmetrical property law (where in the urban setting land is nominally bought or transferred for sale, but in traditional rural areas granted by the chief), manifest in the differentiated land laws brought about by the Communal (...) Land Rights Act of 2003, is more akin to, and necessitates a definitional alignment with, the federal system of government than a unitary one – or at least a weak “federalism with South African characteristics.”. (shrink)

When we say that we interpret customary international law, what is this thing that we actually interpret? Depending on how we answer this question, our view on interpretative methodology will change. It seems that the most promising approach is to say that interpretation of customary international law is an interpretation of certain legal practices. However, here we also encounter some problems. The dominant doctrine of customary international law requiring state practice and opinio juris assumes that only by (...) adding a psychological element to a regularity of behaviour can we speak of customary international law. That is, opinio juris performs a function of generating both legality and normativity of practices. -/- The article challenges this view by drawing on jurisprudential ideas that define practices as inherently normative. State practices are normative regardless of opinio juris, otherwise they are not practices at all. This view allows to differentiate between two instances of interpretation of customary international law. One is focused on clarification of the normative content of state practices, another is focusing on identification of these practices as legal ones. -/- Interpretation as clarification involves assessing structures of practical reasoning inherent in given practices. Drawing on Joseph Raz's theory of normativity, the article suggests that interpretation of customary rules implies establishing connections between first- and second-order reasons that form the practice and give it meaning. This entails that interpretation of customary international law focuses on dynamics of reasons, their inclusion and exclusion within an existing normative framework. That is, evolutive interpretation of customary international law is not only possible, it is inevitable. -/- Interpretation as identification does not focus on the normative content of practices, but rather involves showing that existing second-order reasons meet a threshold of legal validity. This threshold may take shape of opinio juris, but may as well be treated functionally, when legality of a practice is linked to its relevance in a broader set of legal practices. (shrink)

Demonstrating that a developing norm is not yet well established in international law is frequently thought to show that states are not bound by the norm as law. More precisely, showing that a purported international legal norm has only limited support from well-established international legal sources is normally seen as sufficient to rebut an obligation on the part of subjects to comply with the norm in virtue of its legal status. I contend that this view is mistaken. Nascent norms of (...) international law (e.g., crystallizing norms of customary law) can be binding in much the same way as better-established doctrine. This point becomes perspicuous, I argue, once we get a clear sense of the plausible options for grounding the moral authority of international law generally. -/- This result is interesting in its own right, but it also reveals two other features of the character of state responsibility under international law. First, the distinction between legislation and compliance is less pronounced compared to domestic law. Consequently, the virtues of good governance will frequently be pertinent to determining the content of states’ obligations under international law. Second, normally more powerful and influential agents will be more strongly bound by international law than other subjects. This is an attractive result, addressing a concern that motivates many international lawyers to view international law as absolutely binding. An absolutist view international legal authority is unnecessary for showing that the most powerful and dangerous states are strongly bound by the terms of much existing law. (shrink)

The primary aim of this chapter is to show that several missteps made by others in in their thinking about law as an artefact are due to misconceptions about the role of intentions in understanding law as an artefact. I first briefly recap my own contention that law is a genre of institutionalized abstract artefacts (put forth in The Functions of Law (OUP 2016) and subsequent papers), mostly following Searle’s understanding of institutions and Thomasson’s understanding of public artefacts. I highlight (...) the central place that this theory affords law’s functions, without requiring the theorist to say that possession or performance of the function is either necessary or sufficient for inclusion in the class of law. Some of the most common misunderstandings are exemplified in Brian Leiter’s paper ‘Legal Positivism about the Artifact Law’. He thinks that holding an intentionalist view of artefacts commits the theorist to privileging drafters’ intentions when interpreting law. (It doesn’t.) He also has confusions about the differences between artefact tokens and artefact types leading him to a problematically broad understanding of artefacts. Another problem can be seen in thinking that functional understandings of artefacts are vulnerable to the same problems that arise in functional explanations for biological systems. I go on to consider the work of Luka Burazin and Corrado Roversi, addressing worries that making intentionality central to artefacts implies too much conscious thought is required to make one, noting that several theories of intentionality do not require conscious thought in the execution of intentional action. While those who think a central place for intentionality threatens to leave us unable to explain customary law, this can be dealt with by noting the important distinction between customary rules and customary laws (where the latter requires a decision to enlist public aid in redressing violations). I claim that authors’ intentions are communicated requests for the artefacts’ audiences to see the artefacts as members of their putative kinds. Finally, I address the question of whether or not legal systems are themselves artefacts and institutions, given that they may or may not have been intentionally created. An early lawgiver might have created a legal system by accident in the process of handing down the first laws. I raise the possibility that we might want to impute intentionality to necessary by-products of artefact creation, seeing those by-products as artefacts as well. (shrink)

An ongoing mystery in sensory science is how sensation magnitude F(I), such as loudness, increases with increasing stimulus intensity I. No credible, direct experimental measures exist. Nonetheless, F(I) can be inferred algebraically. Differences in sensation have empirical (but non-quantifiable) minimum sizes called just-noticeable sensation differences, ∆F, which correspond to empirically-measurable just-noticeable intensity differences, ∆I. The ∆Is presumably cumulate from an empirical stimulus-detection threshold I_th up to the intensity of interest, I. Likewise, corresponding ∆Fs cumulate from the sensation at the stimulus-detection (...) threshold, F(I_th ), up to F(I). Regarding the ∆Is, however, it is unlikely that all of them will be known experimentally; the procedures are too lengthy. The customary approach, then, is to find ∆I at a few widely-spaced intensities, and then use those ∆Is to interpolate all ∆Is using some smooth continuous function. The most popular of those functions is Weber’s Law, ∆I⁄I=K. But that is often not even a credible approximation to the data. However, there are other equations for ∆I⁄I. Any such equation for ∆I⁄I can be combined with any equation for ∆F, through calculus, to altogether obtain F(I). Here, two assumptions for ∆F are considered: ∆F=B (Fechner’s Law) and (∆F⁄F)=g (Ekman’s Law). The respective integrals involve lower bounds I_th and F(I_th ). This stands in broad contrast to the literature, which heavily favors non-bounded integrals. We, hence, obtain 24 new, alternative equations for sensation magnitude F(I) (12 equations for (∆I⁄I) × 2 equations for ∆F). (shrink)

There is an old and powerful argument for the claim that divine foreknowledge is incompatible with the freedom to do otherwise. A recent response to this argument, sometimes called the “dependence response,” centers around the claim that God’s relevant past beliefs depend on the relevant agent’s current or future behavior in a certain way. This paper offers a new argument for the dependence response, one that revolves around different cases of time travel. Somewhat serendipitously, the argument also paves the way (...) for a new reply to a compelling objection to the dependence response, the challenge from prepunishment. But perhaps not so serendipitously, the argument also renders the dependence response incompatible with certain views of providence. (shrink)

Suppose Molinism is true and God placed Adam in the garden because God knew Adam would freely eat of the fruit. Suppose further that, had it not been true that Adam would freely eat of the fruit, were he placed in the garden, God would have placed someone else there instead. When Adam freely eats of the fruit, is he free to do otherwise? This paper argues that there is a strong case for both a positive and a negative answer. (...) Assuming such cases are possible under Molinism, we are left with a puzzling question: if Molinism is true, what can you do? (shrink)

Let (leeway) incompatibilism be the thesis that causal determinism is incompatible with the freedom to do otherwise. Several prominent authors have claimed that incompatibilism alone can capture, or at least best captures, the intuitive appeal behind Jorge Luis Borges's famous “Garden of Forking Paths” metaphor. The thought, briefly, is this: the “single path” leading up to one's present decision represents the past; the forking paths that one must decide between represent those possible futures consistent with the past and the laws (...) of nature. But if determinism is true, there is only one possible future consistent with the past and the laws and, hence, only one path to choose from. That is, if determinism is true, then we are not free to do otherwise. In this paper, I argue that this understanding of the Garden of Forking Paths faces a number of problems and ought to be rejected even by incompatibilists. I then present an alternative understanding that not only avoids these problems but still supports incompatibilism. Finally, I consider how various versions of (leeway) compatibilism fit with the Garden of Forking Paths as well as the broader question of whether metaphors, however intuitive, have any dialectical force in the debates over freedom. (shrink)

Is the virtue of the good citizen the same as the virtue of the good man? Aristotle addresses this in Politics 3.4. His answer is twofold. On the one hand, (the account for Difference) they are not the same both because what the citizen’s virtue is depends on the constitution, on what preserves it, and on the role the citizen plays in it, and because the good citizens in the best constitution cannot all be good men, whereas the good man’s (...) virtue is uniform. On the other hand, (the account for Identity) the two virtues are identical in the good men in the best constitution, in which all are good citizens, each possessing the ability for ruling and for being ruled. This nuanced answer can be seen as Aristotle’s synthesis of a Periclean view (contribution to state blots out personal wrongs) and a Socratic view (no good citizen is without justice). Its nuances reflect the extent to which Aristotle’s conceptions of good citizenship and the best constitution accommodate deviations of what is probable from the human ideal set out in his ethical writings. In the present chapter, I will first address three puzzles regarding the nuances of Aristotle’s answer. Second, I will consider one question about its implication: Does Aristotle’s account for Difference turn out to entail something ultra-Periclean: that no one can simultaneously be a good man and a good citizen in any constitution other than the best? I shall argue the negative. (shrink)

Libertarian views of freedom claim that, although determinism would rule out our freedom, we are nevertheless free on some occasions. An odd implication of such views (to put it mildly) seems to be that indeterminism somehow enhances or contributes to our agency. But how could that be? What does indeterminism have to offer agency? This paper develops a novel answer, one that is centred around the notion of explanation. In short, it is argued that, if indeterminism holds in the right (...) places, then the best explanation of the history of the world necessarily cites facts about our agency. Along the way, alternative proposals regarding the significance of indeterminism are considered and, ultimately, rejected in favour of the one developed in this paper. (shrink)

Recently, several authors have utilized the notion of dependence to respond to the traditional argument for the incompatibility of freedom and divine foreknowledge. However, proponents of this response have not always been so clear in specifying where the incompatibility argument goes wrong, which has led to some unfounded objections to the response. We remedy this dialectical confusion by clarifying both the dependence response itself and its interaction with the standard incompatibility argument. Once these clarifications are made, it becomes clear both (...) (1.) that the dependence response does not beg the question against the proponent of the incompatibility argument and (2.) that the dependence response advances the dialectic whether it is developed as a version of Ockhamism or as a version of multiple-pasts compatibilism. (shrink)

This chapter provides an explanation of precedent as a kind of artefact, in keeping with broader accounts of law that do so, specifically the author’s account of law as a genre of institutionalized abstract artefact. The chapter develops its explanation by responding to an argument by Dan Priel against seeing the common law as an artefact when understood to be a form of custom. The chapter shows that customs can themselves be artefacts but also that the precedential elements of common (...) law are not necessarily quite as customary as sometimes considered, showing that the common law built from precedents fits within a distributed design model of artefacts and that stare decisis has a wider systemic function of upholding certain rule of law principles. It ends with some considerations about the institutional nature of precedents, specifically that judicial decisions are most often both applications and developments of legal norms, but also determinations of legal validity. (shrink)

Review of Causation and Free Will by Carolina Sartorio, Oxford University Press, 2016. viii + 188 pp. £35.00.

In the TACITUS project for using commonsense knowledge in the understanding of texts about mechanical devices and their failures, we have been developing various commonsense theories that are needed to mediate between the way we talk about the behavior of such devices and causal models of their operation. Of central importance in this effort is the axiomatization of what might be called commonsense metaphysics. This includes a number of areas that figure in virtually every domain of discourse, such as granularity, (...) scales, time, space, material, physical objects, shape, causality, functionality, and force. Our effort has been to construct core theories of each of these areas, and then to define, or at least characterize, a large number of lexical items in terms provided by the core theories. In this paper we discuss our methodological principles and describe the key ideas in the various domains we are investigating. (shrink)

Much of the debate about post-secularism has presumed a background of Western countries and the sort of statutory law that legislatures should make, and how they should make it, in the light of residents’ religious attitudes and practices. In this chapter I address a fresh context, namely, that of South Africa and the way that courts have interpreted, and should interpret, law in the face of African traditional religions. Specifically, I explicate the fact that, by South Africa's famously progressive Constitution, (...) religious customs already count as law, and I illustrate how such customary law could work with three court cases related to indigenous African spirituality. Then, I lay out and evaluate the two central arguments that jurists have made in favour of South Africa's Constitutional practice of deeming long-standing religious ways of life to be sources of law. I contend that these influential arguments for customary law, which are substantially individualist, are weak, and also sketch more promising rationales, which invoke more communitarian considerations. My aim is not so much to convince the reader that South Africa’s approach to post-secularism is justified as to identify some argumentative strategies that particularly promise to justify it. (shrink)

This paper focuses on evaluating Odera Oruka’s role as an expert witness in customary law for the Luo community during the Nairobi, Kenya-based trial in 1987 to decide on the place of the burial of S.M. Otieno. During that trial, an understanding of Luo burial and widow guardianship (ter) practices was essential. Odera Oruka described the practices carefully and defended them against misunderstanding and stereotype. He revisited related topics in several delivered papers, published articles, and even interviews and columns (...) in the Kenyan newspapers. The paper will raise the questions: How does Odera Oruka’s role as expert on Luo customs fit in with his sage philosophy project? In his testimony at the trial and subsequent public addresses and published work, does he accomplish two important goals, the first being defending African traditions against prejudice and anti-African bias, and secondly, does he champion reform of traditions when reform is needed? And, can Odera Oruka’s participation in the famous trial avoid seeming ethnic chauvinism and marginalization of women? My conclusion is that he achieves the first goal, but some problems remain in the achievement of the other goals. While he often asserted the need to evaluate traditions and to jettison those that have become unhelpful, in this context he evaluated traditions so strongly that the need for evaluation and possible change was muted. (shrink)

Quantum Theory has created new perspectives on reality in the human mind. The fact that the micro-world has different identities than the macro-world, as it emerges with Quantum Theory, has made the subject of reality, which underlies everything, more complex. Quantum Theory has demolished the deterministic world view drawn by classical physics, revealing a reality of reality. In addition, it has brought up new questions about customary laws to date, including logic rules because of the peculiarities of the electrons, (...) which appear to have multiple characteristics at the same time. Absurdism is the philosophical view based on the confrontation between the human's aspirations and the desire for happiness and the indifference of the world. The absurdism considered in existentialism that emphasizes subjectivity, although it is based on Sören Kierkegaard, was identified with Albert Camus. The absurdity of Albert Camus was the basis of his philosophy. In this study, it will be examined whether the characteristics of quantum theory, which are evaluated as strange, support absurdity. For this purpose, firstly Quantum Theory and its scientific results, which were evaluated as strange, were revealed. Later, existentialism, absurdity of Albert Camus, and the absurdity of Jean Paul Sartre, explained the relationship of Quantum Theory with these views. (shrink)

"This essay focuses on the third play in the Oresteia trilogy, the Eumenides. Telech provides a compelling reinterpretation of Nietzsche’s reading of Aeschylus's masterpiece, saving the reading from the complaint that it oversimplifies and sentimentalizes the Oresteia by celebrating the triumph of a modern and liberal understanding of law's rationalist virtues over customary and traditional forms. Telech provides an alternative Nietzschean reading that is consistent with Nietzsche's own, that reintroduces passion and irrationality into the trial and sentencing of Orestes, (...) refrains from romanticizing law, and along the way makes a case for institutionalizing a role for mercy in contemporary legal processes." (OUP abstract). (shrink)

This paper uses the evolutionary frame provided by the Victorian jurist Henry Sumner Maine to describe the process by which trust can be seen as the product of a gradual development that starts with small-scale communities and later allows market exchanges to develop themselves. I also argue, using the work of Elinor Ostrom (1990), that trust emerges first within small-scale communities, where first- and second-degree collective action problems need to be resolved. The development of a social disposition to trust is (...) closely linked with an institutional context that encourages individuals to take the externalities of their actions into account. This is made possible by customary mechanisms, as the development of social trust at this stage cannot rely on a mighty “Leviathan”. Therefore, this paper questions the claim that social trust is the product of market exchanges. Market exchanges might favor the further growth of social trust, hands in hands with the right institutional frame. However, this growth is not just the transposition of a previously acquired disposition to trust. The work of Henry Sumner Maine interestingly underlines the importance of the co-development of institutions and trust, from its origin in small communities to its expansion to market exchanges. Both Ostrom’s and Maine’s perspectives underline the fact that trust and trustworthiness are complementary and question a-rational perspectives on trust. This paper also elaborates on the claim, coming from the literature on contract law, that focusing on sanctioning mechanisms can be highly counterproductive. (shrink)

This essay proposes an ontological model in which a legal person such as a polity possesses natural unity from group properties that emerge in the self-organization of the human population. Also, analysis of customary legal persons and property indicates noncontradictory paradoxes that include Aristotelian essence of an entity, relative identity over time, ubiquitous authority, coinciding authorities, and identical entities. Mathematical modeling helps to explain the logic of the paradoxes.

How should liberal democratic states respond to cultural practices and arrangements that run afoul of liberal norms and laws? This article argues for a reframing of the challenges posed by traditional or nonliberal cultural minorities. The author suggests that viewed from up close, such dilemmas are revealed to be primarily intracultural rather than intercultural conflicts, and reflect the political and practical interests of factions of communities much more than deep moral differences. Using the example of the reform of customary (...) marriage laws in post-apartheid South Africa, this article makes the case for a more pragmatic, politically focused approach to resolving conflicts of culture that it is argued is both more democratic and effective than alternatives recently advanced by liberals and deliberative democracy theorists. (shrink)

Under the UDHR, all persons have the right to "seek and to enjoy . . . asylum from persecution." From this designation as fundamental followed codification of the right in the 1951 Convention relating to the Status of Refugees and the 1967 Protocol Relating (collectively 'the Convention'), the "centrepiece" of treaties and customary norms that make up international refugee law. It defines and regulates the status and rights of refugees; its purpose is to safeguard the basic rights of persons (...) "outside their country of origin," who have fled due to a legitimate fear of persecution. Fundamentally, it guarantees that asylees and refugees enjoy rights without discrimination; without penalization for illegal territorial entry; and, without expulsion or return to "territories where . . . life or freedom would be threatened on account of . . . race, religion, nationality, membership of a particular social group or political opinion," —or 'non-refoulement'. What follows is background on development of the principle of non-refoulement, evasive US Asylum Cooperative Agreements ('ACAs') and implementing legislation, and the resulting erosion to the right to asylum. (shrink)

The paper examines the justification of warfare. The main thesis is that war is very difficult to justify, and justification by invoking “justice” is not the way to succeed it. Justification and justness (“justice”) are very different venues: while the first attempts to explain the nature of war and offer possible schemes of resolution (through adequate definitions), the second aims to endorse a specific type of warfare as correct and hence allowed – which is the crucial part of “just war (...) theory.” However, “just war theory,” somewhat Manichean in its nature, has very deep flaws. Its final result is criminalization of war, which reduces warfare to police action, and finally implies a very strange proviso that one side has a right to win. All that endangers the distinction between ius ad bellum and ius in bello, and destroys the collective character of warfare (reducing it to an incomprehensible individual level, as if a group of people entered a battle in hopes of finding another group of people willing to respond). Justification of war is actually quite different – it starts from the definition of war as a kind of conflict which cannot be solved peacefully, but for which there is mutual understanding that it cannot remain unresolved. The aim of war is not justice, but peace, i.e. either a new articulation of peace, or a restoration of the status quo ante. Additionally, unlike police actions, the result of war cannot be known or assumed in advance, giving war its main feature: the lack of control over the future. Control over the future, predictability (obtained through laws), is a feature of peace. This might imply that war is a consequence of failed peace, or inability to maintain peace. The explanation of this inability (which could simply be incompetence, or because peace, as a specific articulation of distribution of social power, is not tenable anymore) forms the justification of war. Justice is always an important part of it, but justification cannot be reduced to it. The logic contained here refers to ius ad bellum, while ius in bello is relative to various parameters of sensitivity prevalent in a particular time (and expressed in customary and legal rules of warfare), with the purpose to make warfare more humane and less expensive. (shrink)

The Church is facing a dilemma in how to apply and live out its message in a postmodern world. For many in the Church an understanding and application of morals and ethics has become bewildering. This assignment attempts to develop a Christian vocabulary and conceptual framework for morality. This is done by firstly elucidating the milieu out of which postmodernism arose. Modernism, through universal claims of reason and instrumental rationality, believed in the ultimate mastery of the world. The failure of (...) the Enlightenment project to develop universal morality and law led to a new perspective on reason and reality and new reflection on life, morality and meaning. Thus, I reflect on the parturition and value of postmodernism through offering an evaluation and critique of the ideology of postmodernism. Next, I propose the need for Christian ideology to be firstly separated from cultural interpretations so as to avoid ethnocentrism and cultural imperialism. After exploring the development and purpose of worldviews I argue for the building of cultural bridges and for the Gospel and Biblical worldview to be suitably encoded. After learning about God's nature as reflected in the narrative of the Prodigal Son I posit an understanding of what postmodern ethics entails and how then to define and respond to ethical issues. Through case studies I apply the key principles identified in the study. These are that moderation is a virtue; that many timeless truths are customary truths that arise in a specific historical/cultural situations; that many problems are not ethical issues but are rather a comprehension and/or a misinterpretation of the Scriptures regarding what it means to be a Christian and how we are to live our Christian profession to mention a few. I reason and plead for a Christian ethical system of incarnational engaged compassion in a postmodern world. I hope this academic paper stimulates critical theological reflection whilst hopefully illuminating and enlightening the reader. (shrink)

This is Part 1 of a four part paper, intended to redress some of the most fundamental confusions in the subject of physical time directionality, and represent the concepts accurately. There are widespread fallacies in the subject that need to be corrected in introductory courses for physics students and philosophers. We start in Part 1 by analysing the time reversal symmetry of quantum probability laws. Time reversal symmetry is defined as the property of invariance under the time reversal transformation, T: (...) t --> -t. It is shown that quantum mechanics (classical or relativistic) is strongly time asymmetric in its probability laws. This contradicts the orthodox analysis, found throughout the conventional literature on physical time, which claims that quantum mechanics is time symmetric or reversible. This is widely claimed as settled scientific fact, and large philosophical and scientific conclusions are drawn from it. But it is an error. The fact is that while quantum mechanics is widely claimed to be reversible on the basis of two formal mathematical properties (that it does have), these properties do not represent invariance under the time reversal transformation. A recent experiment (Batalhão at alia, 2015) showing irreversibility of quantum thermodynamics is discussed as an illustration of this result. Most physicists remain unaware of the errors, decades after they were first demonstrated. Orthodox specialists in the philosophy of time who are aware of the error continue to refer to the ‘time symmetry’ or ‘reversibility’ of quantum mechanics anyway – and exploit the ambiguity to claim false implications about physical time reversal symmetry in nature. The excuse for perpetrating the confusion is that, since it is has now become customary to refer to the formal properties of quantum mechanics as ‘reversibility’ or ‘time reversal symmetry’, we should just keep referring to them by this name, even though they are not time reversal symmetry. This causes endless confusion, in attempts to explain the physical irreversibility of our universe, and in philosophical discussions of implications of physics for the nature of time. The failure of genuine time reversal symmetry in quantum mechanics changes the interpretation of modern physics in a deep way. It changes the problem of explaining the real irreversibility found throughout nature. (shrink)

The standard of proof in criminal trials in many liberal democracies is proof beyond a reasonable doubt, the BARD standard. It is customary to describe it, when putting a number on it, as requiring that the fact finder be at least 90% certain, after considering the evidence, that the defendant is guilty. Strikingly, no good reason has yet been offered in defense of using that standard. A number of non-consequentialist justifications that aim to support an even higher standard have (...) been offered; all are morally unsound. Meanwhile, consequentialist arguments plausibly support a substantially lower standard — in some cases so low as to undermine the idea that punishment is what is at stake. In this paper, I offer a new retributive justification that supports excluding the instrumental benefits of punishment from the balance that sets the standard. The resulting balance supports a standard arguably in the ballpark of the customary understanding of BARD: a standard requiring that the fact finder have a high, though not maximally high, degree of confidence that the defendant is guilty. (shrink)

Properties have an important role in specifying different views on laws of nature: virtually any position on laws will make some reference to properties, and some of the leading views even reduce laws to properties. This chapter will first outline what laws of nature are typically taken to be and then specify their connection to properties in more detail. We then move on to consider three different accounts of properties: natural, essential, and dispositional properties, and we shall see that different (...) conceptions of properties also result in different views of the modal status of laws, such as the question of whether laws are metaphysically necessary or contingent. Finally, there are also important links specifically between properties, natural kinds, and laws of nature that deserve our attention. (shrink)

We can evaluate laws as better or worse relative to different normative standards. One might lament the fact that a law violates human rights or, in a different register, marvel at its ease of application. A question in legal philosophy is whether some standards for evaluating laws are fixed by—or grounded in—the very nature of law. I take Raz’s discussion of the distinctively legal virtues, those that fall under the rubric of the “Rule of Law” such as clarity, generality, and (...) non-retroactivity, as my starting point for exploring a very general puzzle about the relationship between law’s essence and its virtue. -/- The claim that there are some virtues that laws have qua laws invites a comparison between law and other “goodness-fixing kinds.” A kind is goodness-fixing if what it is to be a member of the kind fixes a standard for evaluating instances as better or worse. For example, if an object belongs to the kind CLOCK, whether it keeps time accurately provides a basis for evaluating it as better or worse as a clock. Furthermore, the relevant normative fact—if a clock does not keep time accurately, it is a bad clock—is at least partly explainable in terms of the nature of clocks (clocks are things that are supposed to be keep time accurately). Hence, for any goodness-fixing kind, K, that sets a standard, S, for evaluating Ks as Ks, we can ask: (1) How does the nature of Ks explain S? (2) Does being a K depend on meeting a minimum threshold of S-relative goodness? In the case of law and its constitutive standard defined by the Rule-of-Law virtues, these questions lack settled answers. Although Raz offers some discussion, I argue that his answers have the surprising upshot of rendering law sui generis relative to other goodness-fixing kinds, and that preserving continuity with other goodness-fixing kinds involves revising the general picture. (shrink)

In the modern period, the most original and influential theories about law and politics were developed in connection with a set of far-reaching, interrelated questions about the definition of law, the purpose of law, the relationship between law and morality, and the existence of natural law and natural rights. In this entry I summarize the contributions of Charles-Louis de Secondat, Baron de La Brède et de Montesquieu; William Blackstone; Jeremy Bentham; and Immanuel Kant as exemplars of the history of modern (...) thought on law and politics. (shrink)

Many assume that whenever government is entitled to make a law, it is entitled to enforce that law coercively. I argue that the justification of legal authority and the justification of governmental coercion come apart. Both in ideal theory and in actual human societies, governments are sometimes entitled to make laws that they are not entitled to enforce coercively.

The goals of this paper are two-fold: I wish to clarify the Aristotelian conception of the law of non-contradiction as a metaphysical rather than a semantic or logical principle, and to defend the truth of the principle in this sense. First I will explain what it in fact means that the law of non-contradiction is a metaphysical principle. The core idea is that the law of non-contradiction is a general principle derived from how things are in the world. For example, (...) there are certain constraints as to what kind of properties an object can have, and especially: some of these properties are mutually exclusive. Given this characterisation, I will advance to examine what kind of challenges the law of non-contradiction faces; the main opponent here is Graham Priest. I will consider these challenges and conclude that they do not threaten the truth of the law of non-contradiction understood as a metaphysical principle. (shrink)

One of the main challenges confronting Humean accounts of natural law is that Humean laws appear to be unable to play the explanatory role of laws in scientific practice. The worry is roughly that if the laws are just regularities in the particular matters of fact (as the Humean would have it), then they cannot also explain the particular matters of fact, on pain of circularity. Loewer (2012) has defended Humeanism, arguing that this worry only arises if we fail to (...) distinguish between scientific and metaphysical explanations. However, Lange (2013, 2018) has argued that scientific and metaphysical explanations are linked by a transitivity principle, which would undercut Loewer's defense and re-ignite the circularity worry for the Humean. I argue here that the Humean has antecedent reasons to doubt that there are any systematic connections between scientific and metaphysical explanations. The reason is that the Humean should think that scientific and metaphysical explanation have disparate aims, and therefore that neither form of explanation is beholden to the other in its pronouncements about what explains what. Consequently, the Humean has every reason to doubt that Lange's transitivity principle obtains. (shrink)

Joseph Raz argues that legal authority includes a claim by the law to replace subjects’ contrary reasons. I reply that this cannot be squared with the existence of choice-of-evils defenses to criminal prosecutions, nor with the view that the law has gaps (which Raz shares). If the function of authority is to get individuals to comply better with reason than they would do if left to their own devices, it would not make sense for law to claim both to pre-empt (...) our contrary reasons and to leave open spaces or catch-all exceptions which we must use our own devices to fill. (shrink)

Non-Humean accounts of the metaphysics of nature posit either laws or powers in order to account for natural necessity and world-order. We argue that such monistic views face fundamental problems. On the one hand, neo-Aristotelians cannot give unproblematic power-based accounts of the functional laws among quantities offered by physical theories, as well as of the place of conservation laws and symmetries in a lawless ontology; in order to capture these characteristics, commitment to governing laws is indispensable. On the other hand, (...) ontologies that entirely exclude some kind of power ascription to worldly entities face what we call the Governing Problem: such ontologies do not have the resources to give an adequate account of how laws play their governing role. We propose a novel dualist model, which, we argue, has the resources to solve the difficulties encountered by its two dominant competitors, without inheriting the problems of either view. According to the dualist model, both laws and powers are equally fundamental and irreducible to each other, and both are needed in order to give a satisfactory account of the nomological structure of the world. The dualist model constitutes thus a promising alternative to current monistic views in the metaphysics of science. (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)

In this paper I argue that there is a structural parallelism between law and physics in Leibniz since his early years, which has significant influence on the formation of his views. I start by examining Leibniz's early physical system and an analogy with juridical laws that he uses to explain the structure of physical laws. Then, I argue that this analogy stems from an envisioned parallelism between law and physics. Finally, I illustrate the significance of this legal-physical parallelism by arguing (...) that it underlies some of Leibniz's mature views. Most importantly, I argue that the parallelism explains the origin of architectonic principles or optimality principles in Leibniz's mature physics. (shrink)

A number of writers have drawn on Hayek’s epistemic defence of market institutions to argue that free-markets and tort law are best placed to overcome the knowledge problems associated with the environmental sphere. This paper argues to the contrary, that this Austrian School approach itself suffers from significant knowledge problems. The first of these relates to the ability of Austrian economics to assign victim compensation and the second to the difficulty of establishing causation in complex environmental problems. The paper will (...) also show how alternative approaches may not suffer from these epistemic challenges and are better placed to overcome them. (shrink)

Any explanation of one fact in terms of another will appeal to some sort of connection between the two. In a causal explanation, the connection might be a causal mechanism or law. But not all explanations are causal, and neither are all explanatory connections. For example, in explaining the fact that a given barn is red in terms of the fact that it is crimson, we might appeal to a non-causal connection between things’ being crimson and their being red. Many (...) such connections, like this one, are general rather than particular. I call these general non-causal explanatory connections 'laws of metaphysics'. In this paper I argue that some of these laws are to be found in the world at its most fundamental level, forming a bridge between fundamental reality and everything else. It is only by admitting fundamental laws, I suggest, that we can do justice to the explanatory relationship between what is fundamental and what is not. And once these laws are admitted, we are able to provide a nice resolution of the puzzle of why there are any non-fundamental facts in the first place. (shrink)

In this paper we discuss how Causal Decision Theory should be modified to handle a class of problematic cases involving deterministic laws. Causal Decision Theory, as it stands, is problematically biased against your endorsing deterministic propositions (for example it tells you to deny Newtonian physics, regardless of how confident you are of its truth). Our response is that this is not a problem for Causal Decision Theory per se, but arises because of the standard method for assessing the truth of (...) certain counterfactuals. The truth of deterministic laws is `modally fragile' on the standard semantics for counterfactuals: if determinism is true and you were to do otherwise, the laws would be different. We provide two ways of avoiding this problem: 1) supplement the standard semantics for counterfactuals with impossible worlds, or 2) introduce rigid designators into the description of problematic decision situations. We argue that both of these approaches are well-motivated and can be readily incorporated into Lewisian Causal Decision Theory. (shrink)

Physical laws are strikingly simple, although there is no a priori reason they must be so. I propose that nomic realists of all types (Humeans and non-Humeans) should accept that simplicity is a fundamental epistemic guide for discovering and evaluating candidate physical laws. This principle of simplicity clarifies and addresses several problems of nomic realism and simplicity. A consequence is that the oft-cited epistemic advantage of Humeanism over non-Humeanism disappears, undercutting an influential epistemological argument for Humeanism. Moreover, simplicity is shown (...) to be more tightly connected to lawhood than to mere truth. (shrink)

D. M. Armstrong famously claims that deterministic laws of nature are contingent relations between universals and that his account can also be straightforwardly extended to irreducibly probabilistic laws of nature. For the most part, philosophers have neglected to scrutinize Armstrong’s account of probabilistic laws. This is surprising precisely because his own claims about probabilistic laws make it unclear just what he takes them to be. We offer three interpretations of what Armstrong-style probabilistic laws are, and argue that all three interpretations (...) are incompatible either with some feature of Armstrong’s broader metaphysics or with essential features of his account of laws (or both). (shrink)

Discovering laws of nature was a way to worship a law-giving God, during the Scientific Revolution. So why should we consider it worthwhile now, in our own more secularized science? For historical perspective, I examine two competing early modern theological traditions that related laws of nature to different divine attributes, and their secular legacy in views ranging from Kant and Nietzsche to Humean and ‘governing’ accounts in recent analytic metaphysics. Tracing these branching offshoots of ethically charged God-concepts sheds light on (...) how our ethical ideals and ideas of natural order can still be valuably integrated. Early modern intellectualists valued the law-governed order of nature as a sign of divine Reason. In turn, Reason traditionally ascribed to God has now been partly reclaimed for humans, reframing the value of natural order anthropocentrically, in terms of the value of our own intelligence. Alternatively, Reason may be reclaimed for nature itself, as in an ‘objective’ idealism or metaphysical rationalism. However, beyond divine Reason, an influential voluntarist tradition in theology stressed a connection between laws of nature and God’s Power or free Will. Tracking how divine Power has been reinvested in human beings provides a broader context for instrumentalism and related lineages of empiricism. But secularization can also transfer Power from God to the impersonal natural world. In this light, current scientific interest in lawlike order may also reflect the inherent value of brute necessity or inhuman causal power in nature: this is a deeper way to reject anthropocentrism and to show our respect for the environment. (shrink)

The central aim of this paper is to use a particular view about how the laws of nature govern the evolution of our universe in order to develop and evaluate the two main competing options in the metaphysics of persistence, namely endurantism and perdurantism. We begin by motivating the view that our laws of nature dictate not only qualitative facts about the future, but also which objects will instantiate which qualitative properties. We then show that both traditional doctrines in the (...) metaphysics of persistence must take on surprising further commitments in order to vindicate our universe being law-governed in this strong sense. For example, we argue that endurantists should adopt a particular version of monism, and that perdurantists should adopt a qualitativist doctrine that dispenses with all individuals at the fundamental level. (shrink)

We are living through an era of increased robotisation. Some authors have already begun to explore the impact of this robotisation on legal rules and practice. In doing so, many highlight potential liability gaps that might arise through robot misbehaviour. Although these gaps are interesting and socially significant, they do not exhaust the possible gaps that might be created by increased robotisation. In this article, I make the case for one of those alternative gaps: the retribution gap. This gap arises (...) from a mismatch between the human desire for retribution and the absence of appropriate subjects of retributive blame. I argue for the potential existence of this gap in an era of increased robotisation; suggest that it is much harder to plug this gap than it is to plug those thus far explored in the literature; and then highlight three important social implications of this gap. (shrink)

The paper compares dispositionalism about laws of nature with primitivism. It argues that while the distinction between these two positions can be drawn in a clear-cut manner in classical mechanics, it is less clear in quantum mechanics, due to quantum non-locality. Nonetheless, the paper points out advantages for dispositionalism in comparison to primitivism also in the area of quantum mechanics, and of contemporary physics in general.

It is widely agreed that Aristotle holds that the best moral education involves habituation in the proper pleasures of virtuous action. But it is rarely acknowledged that Aristotle repeatedly emphasizes the social and political sources of good habits, and strongly suggests that the correct law‐ordained education in proper pleasures is very rare or non‐existent. A careful look at the Nicomachean Ethics along with parallel discussions in the Eudemian Ethics and Politics suggests that Aristotle divided public moral education or law‐ordained habituation (...) into two types. One type is a defective form practiced by the Spartans, producing civic courage and similar defective virtue‐ like states motivated by external incentives. By contrast Aristotle endorses the law‐ordained musical education described in Politics 8. The chapter argues that Aristotle considers the well‐habituated state of proper pleasures in virtue to be best cultivated by this kind of musical education; and that this explains both his emphasis on good laws and on their scarcity. (shrink)

Consonant with the ongoing “aesthetic turn” in legal scholarship, this article pursues a new conception of law as poetry. Gestures in this law-as-poetry direction appear in all three main schools in the philosophy of law’s history, as follows. First, natural law sees law as divinely-inspired prophetic poetry. Second, positive law sees the law as a creative human positing (from poetry’s poesis). And third, critical legal theory sees these posited laws as calcified prose prisons, vulnerable to poetic liberation. My first two (...) sections interpret two texts at the intersections among these three theories, namely Percy Bysshe Shelley’s “A Defense of Poetry” and Alexis de Tocqueville’s Democracy in America. Shelley identifies a poetic rebirth in the ruins of natural law, suggesting a philosophy of law as “natural poesis.” And Tocqueville names several figurative aristocracies capable of redeploying aristocratic law against democratic despotism, suggesting a philosophy of law as “aristo-poetic counterforce.” Finally, I propose a new theory of law as poetry bridging these two theories, “natural aristo-poetic counterforce.”. (shrink)

Humean reductionism about laws of nature is the view that the laws reduce to the total distribution of non-modal or categorical properties in spacetime. A worry about Humean reductionism is that it cannot motivate the characteristic modal resilience of laws under counterfactual suppositions and that it thus generates wrong verdicts about certain nested counterfactuals. In this paper, we defend Humean reductionism by motivating an account of the modal resilience of Humean laws that gets nested counterfactuals right.

This paper shows how a niche account of the metaphysics of laws of nature and physical properties—the Powers-BSA—can underpin both a sense in which the laws are metaphysically necessary and a sense in which it is true that the laws could have been different. The ability to reconcile entrenched disagreement should count in favour of a philosophical theory, so this paper constitutes a novel argument for the Powers-BSA by showing how it can reconcile disagreement about the laws’ modal status. This (...) paper also constitutes a defence of modal necessitarianism, the interesting and controversial view according to which all worlds are nomologically identical, because it shows how the modal necessitarian can appease the orthodox contingentist about laws. (shrink)