This paper proposes a critical analysis of the essential criteria to define the concept of the political as presented by German jurist and philosopher, Carl Schmitt. Based on the essence of the political -i.e. the friend-enemy duality-, the objective is to explore the practical implications resulting from the actual possibilities of confrontation, the key scope being the analysis of a totalitarian potential from a Schmittian´s perspective. In Schmitt´s thought, this distinction is the fundamental reason for the definition of the political. (...) Not every opponent is necessarily the enemy --the other one, the unknown- and likely to be physically destroyed and exterminated but only a public enemy (hostis). Given its indeterminate nature, the enemy may be prescribed according to the sovereign design or, in the context of Nazi Germany where Carl Schmitt lived, in accordance with the President of the Reich´s designs. A hypothetical-deductive methodology is used in this work based on bibliographical research, in particular regarding Carl Schmitt´s theoretical constructions. (shrink)

Nazi ideology was premised on a belief in the superiority of the Germanic race. However, the idea of a superior Germanic race was not invented by the Nazis. By the beginning of the 20th century this idea had already gained not only popular but also mainstream scientific support in England, Germany, the U.S., Scandinavia, and other parts of the world in which people claimed Germanic origins (p. xiii). Yet how could this idea, which is now recognised as ideology of (...) the most dangerous kind, be given the appearance of scientific legitimacy by some of the leading physical anthropologists of the day? (shrink)

It is beyond doubt that the legal system established by the Nazi government in Germany between 1933-1945 represented a gross departure from the rule of law: the Nazis eradicated legal security and certainty; allowed for judicial and state arbitrariness; blocked epistemic access to what the law requires; issued unpredictable legal requirements; and so on. This introduction outlines the distorted nature of the Nazi legal system and looks at the main factors that contributed to this grave divergence.

Several authors have recently questioned whether dehumanization is a psychological prerequisite of mass violence. This paper argues that the significance of dehumanization in the context of National Socialism can be understood only if its ideological dimension is taken into account. The author concentrates on Alfred Rosenberg’s racist doctrine and shows that Nazi ideology can be read as a political anthropology that grounds both the belief in the German privilege and the dehumanization of the Jews. This anthropological framework combines biological, cultural (...) and metaphysical aspects. Therefore, it cannot be reduced to biologism. This new reading of Nazi ideology supports three general conclusions: First, the author reveals a complex strategy of dehumanization which is not considered in the current psychological debate. Second, the analysis of the ideological mechanism suggests a model of dehumanization that is more plausible than other psychological models. Third, the author provides evidence that this kind of dehumanization had psychological consequences and hence was an important feature of Nazi reality. (shrink)

This chapter explores the ideological dimension of dehumanization in the context of National Socialism, focusing on the connection between concepts of humanity and dehumanizing images. NS regarded itself as a political revolution, realizing a new concept of humanity. Nazi ideologues undergirded the self-understanding of NS by developing racist anthropologies. I examine two major strands of Nazi ideology, focusing on their diverging strategies of dehumanization, and arguing that they were dependent on different anthropological frameworks. Richard Walther Darré held a naturalistic concept (...) of humanity and advanced biologistic forms of dehumanization. Alfred Rosenberg developed a dualistic anthropology that combined metaphysical and natural features. He dehumanized certain groups of people by reducing them to being human in a natural sense only. Moreover, I aim to show that the key motifs of these racist worldviews were prevalent in the scientific and philosophical debates on anthropology in early-twentieth-century Germany. I thus explore the general orientation of both the naturalistic and the anti-naturalistic strand in anthropological thought, unfold the animalizing tendencies of these views, and emphasize their conformity with the key motifs of Nazi ideology. The case of NS should thus exemplify the dehumanizing potential of anthropological theories. (shrink)

I examine the blameworthiness of the resistance for Nazi reprisals in three morally disturbing cases which occurred in Nazi occupied Europe. I have organized my argument in the following way. After describing the cases, I propose a set of criteria for assessing the degree to which actors are blameworthy for the deaths of innocents. Using these criteria, I then explore the blameworthiness of the resistance members in these cases. I follow this analysis with an application of the doctrine of double (...) effect. My conclusion that some resistance members are blameworthy using my criteria is confirmed by the application of the doctrine of double effect. (shrink)

Kant’s example of lying to the murderer at the door has been a cherished source of scorn for thinkers with little sympathy for Kant’s philosophy and a source of deep puzzlement for those more favorably inclined. The problem is that Kant seems to say that it’s always wrong to lie – even if necessary to prevent a murderer from reaching his victim – and that if one does lie, one becomes partially responsible for the killing of the victim. If this (...) is correct, then Kant’s account seems not only to require us to respect the murderer more than the victim, but also that we somehow can become responsible for the consequences that ultimately result from someone else’s wrongdoing. After World War II our spontaneous negative reaction to this apparently absurd line of argument is brought out even more starkly by making the murderer at the door a Nazi officer looking for Jews hidden in people’s homes. This paper argues that Kant’s discussion of lying to the murderer at the door has been seriously misinterpreted. The suggested root of the problem is that the Doctrine of Right has been given insufficient attention in Kant interpretation. It is in this work we find many of the arguments needed to understand Kant’s analysis of lying to the murderer in “On a Supposed Right to Lie from Philanthropy”. When we interpret this essay in light of Kant’s discussion in the Doctrine of Right, we can make sense of why lying to the murderer isn’t to wrong the murderer, why we nevertheless become responsible for the consequences of the lie and why choosing to lie to do wrong ‘in the highest degree’. Finally, the Doctrine of Right account of rightful relations makes it possible for us to analyze the example when we make the murderer at the door a Nazi officer. (shrink)

Fact/value holism has become commonplace in philosophy of science, especially in feminist literature. However, that facts are bearers of empirical content, while values are not, remains a firmly-held distinction. I support a more thorough-going holism: both facts and values can function as empirical claims, related in a seamless, semantic web. I address a counterexample from Kourany where facts and values seem importantly discontinuous, namely, the simultaneous support by the Nazis of scientifically sound cancer research and morally unsound political policies. (...) I conclude that even by the criteria available at the time, Nazi cancer research was empirically weak, and the weaknesses in their research are continuous with their moral failures in just the ways predicted by the holism I support. (shrink)

In 1935, the Nazi government introduced what came to be known as the abrogation of the pro- hibition of analogy. This measure, a feature of the new penal law, required judges to stray from the letter of the written law and to consider instead whether an action was worthy of pun- ishment according to the ‘sound perception of the people’ and the ‘underlying principle’ of existing criminal statutes. In discussions of Nazi law, an almost unanimous conclusion is that a system (...) of criminal law ought not to contain legislation of this sort. This conclusion is often based on how the abro- gation relates to the normative claim that the law ought to be predictable. In particular, it has been argued that since the law ought to be predictable, and since this type of analogy legis- lation implied, caused or contributed to the diminution of the law’s predictability, this type of legislation ought to be prohibited. In this paper, we argue that this argument is not entirely correct. While we believe that the law ought to be predictable and that there is evidence for the claim that the Nazis’ intro- duction of analogical reasoning implied, caused, or contributed to a diminution of predictability, this fact is logically too weak to ground the conclusion that necessarily a penal system ought not to contain legislation of this kind. Despite the undeniable wickedness of the Nazi penal system, this type of analogical reasoning can be made consistent with the pre- dictability of the law. We argue that consistency of this sort depends on whether the use of analogy is supplemented by certain contextual background conditions. The occurrence of these conditions blocks an inference from the fact that the law ought to be predictable to the conclusion that a penal system ought not to allow for this type of analogical reasoning. (shrink)

Since the spread of Islam in Transoxiana (Mā-warāʾ al-Nahr), religious understandings based on the opinions of Abū Ḥanīfa (d. 150/767) have always been dominant in the region. Therefore, it was not possible for other understandings, which may seem to be opposite to Abū Ḥanīfa’s opinions, to be influential in the region. That Najjāriyya and Karrāmiyya could not be perennial in the region may be an example of this case. Similarly, Māturīdiyya, which benefited from Abū Ḥanīfa’s treatises of creed and his (...) rational method, could not adequately get the support of people at the time of Abū Manṣūr al-Māturīdī (d. 333/944) and Abū l-Muʿīn al-Nasafī (d. 508/1114) because the school was seen as an opposite approach to the prevailing imaginations about Abū Ḥanīfa. Moreover, the Ḥanafī jurists (Ḥanafī fuqahāʾ), who were influential in not only people but also bureaucracy, and the Ḥanafī theologians (Ḥanafī mutakallimūn), who followed al-Māturīdī’s theological method , did not come to terms on their interpretations of Abū Ḥanīfa. The Ḥanafī jurists who benefited mostly from juridical sources and manāqibworks were thinking different from the Ḥanafī theologians who relied on the treatises of Abū Ḥanīfa on such issues as the legitimacy of Kalām as a scholarly discipline, the responsibility of people of fatra(ahl al-fatra: people having no access to the message of Islam), and the creation of faith (īmān). The Ḥanafī jurists took different stance on various issues and argued that faith is not created; the informative (khabarī) attributes of God (ṣifāt Allāh) mentioned in the Qurʾān cannot be interpreted (taʾwīl); no one can be held accountable for faith only based on the intellect unless the message of the Prophet reaches to her or him; the people of fatracannot be responsible for faith. They also stated that Abū Ḥanīfa broke his relationship with the theological (kalāmī) issues in the last years of his life. Although these jurists accepted Abū Ḥanīfa’s distinction between faith and deeds and his view of the stability of one’s faith without increasing or decreasing they condemned theological discussions on these issues by going beyond the limits of the treatise of creed. While the Ḥanafī theologians known as the Ḥanafī scholars of Samarqand who adopted the religious views of Imām al-Māturīdī of Samarqand acknowledged the intellect and considered it as an independent source in religion, the Ḥanafī jurists known as the Ḥanafī scholars of Bukhārāauthorized the intellect only in understanding the transmission (naql) and its interpretation. The different opinions of the two groups can be seen clearly on the question of the religious responsibility of the people of fatra. When we look at the debates regarding Kalām and the Islamic law, we can see that the difference between these two cities (Samarqand and Bukhārā) stems from their methodological views on the epistemological values of the reason (ʿaql) and the transmission (tradition). Māturīdiyya is a school of theology established by the Ḥanafī theologians who upheld the necessity and significance of Kalām. It is possible to say that the Ḥanafī jurists did not contribute to the establishment and systematisation of this school; rather, they tried to prevent it. Our findings show that the Ḥanafī jurists who lived in Transoxiana differ from each other because of their different understandings of Abū Ḥanīfa. In the historical process extending today it is evident that the religious views of the Ḥanafī jurists and their interpretation of Abū Ḥanīfa have been prominent and effective, not that of Māturīdiyya, which is the understanding of the Ḥanafī theologians. (shrink)

This essay is my review of Erwin Leiser’s excellent documentary film Germany Awake. This classic film first aired in Germany in 1968, and remains to this day one of the best surveys of major Nazi-era movies and exactly what messages they were meant to convey. The film underscores the emphasis the regime put on film as one of the premier mechanisms of propaganda, though Leiser’s film points out that most of the cinema produced by the Nazi regime was not pure (...) propaganda, but mainly entertainment. In the review, I put forward a list of criteria for evaluating the degree of the deceptiveness of propaganda, and why cinema is so apt to exploit those criteria. (shrink)

Artikel ini bertujuan untuk memperlihatkan pentingnya prinsip penghargaan atas subjek dalam penelitian ilmiah. Dengan menjadikan kasus hipotermia Nazi sebagai contoh, artikel ini akan menunjukkan masalah yang terjadi saat prinsip penghargaan atas subjek absen dalam andaian aksiologis penelitian. Metode yang digunakan dalam artikel ini adalah evaluasi kritis dalam tataran prinsip dan kerangka riset. Hasil evaluasi menunjukkan bahwa ketidakhadiran prinsip penghargaan atas subjek adalah konsekuensi logis atas lemahnya kerangka riset yang dijalankan Nazi dalam penelitian hipotermianya. Dengan kata lain, problem non-epistemik yang tidak (...) tepat dapat memengaruhi keoptimalan pertimbangan epistemik. Berdasarkan hal tersebut, artikel ini merekomendasikan usaha penuh untuk mengafirmasi prinsip penghargaan terhadap subjek dalam segala bentuk kondisi dan penelitian. (shrink)

Commentary of texts from Nieztsche to show he was the father of nazism. ISBN 978 84 686 6177 3 Published by Bubok Publishing S.L., 2015.

Dans cet article, il sera fait un bref rappel du modèle traditionnel d’interprétation des lois, toujours prescrit dans la doctrine, sinon épousé verbalement dans les tribunaux canadiens. Il sera démontré que ce modèle ne peut pas représenter toute la réalité du travail d’interprétation des juristes canadiens, pour plusieurs raisons. L’herméneutique, la sociologie critique, l’analyse du discours, prenant pour objet les textes législatifs, les jugements rendus, les arguments pratiques entendus, ont montré l’étendue du comportement réflexif réel, l’étendue du champ interprétatif visant (...) les circonstances d’une cause. Les textes législatifs donnent de fait de plus en plus de place à l’interprétation des circonstances pertinentes à l’encadrement de l’action des justiciables. Sur un plan empirique, l’analyse des jugements, de même que les prises de position de juges lorsqu’ils s’expriment en dehors du forum judiciaire, mettent en évidence la variété des motifs effectivement pris en considération, l’espace considérable de délibération éthique impliquant de fait tous les interprètes, qu’ils soient simples citoyens d’une communauté, inspirés par l’un ou l’autre des ordres sociaux, ou acteurs spécialisés de l’ordre juridique. Cet article se propose d’examiner comment se produit actuellement, en droit canadien ou québécois, l’interprétation des juristes, dans des processus décisionnels réflexifs, en situations complexes, voire même dans la perspective du développement des institutions. (shrink)

Recension de la traduction française de l'ouvrage de F. Schauer, Penser en Juriste, Dalloz, 2018.

In this essay, I explore a documentary about the curious case of Charlie and his Orchestra. While swing music was outlawed in Nazi Germany as “degenerate,” the Nazi regime created a radio program called “Charlie and his Orchestra” for foreign consumption. The propaganda lay in the changes to the original lyrics of the songs played, making them convey the anti-Semitic and other themes of the Nazi ideology. The review discusses just how good the musicians were, and how popular the program (...) was. (shrink)

In this essay, I review in great detail Ian Garden’s outstanding book, The Third Reich’s Celluloid War. Garden begins by discussing propaganda theory and then discusses not just Nazi feature films and documentaries, but television as well. (The Nazis had the earliest TV network). All in all, the regime produced over 1,300 feature films during its time in power. Garden also compares Nazi propaganda films to British and American ones.

If Jewish Bolsheviks could put an end to the imperial rule of the Romanovs, could they pose a threat to the vision of a Third Reigh? A question the German National Socialists are likely to have asked themselves before and on the eve of plotting the rise of the Nazi regime. After all, Europe had had a long-standing relationship with blaming the Jews for the world’s miseries. A relationship Germany was ready to refuel, as indicated by German Field Marshal Walter (...) von Reichenau, when he stated that ‘the most essential aim of war against the Jewish-bolshevistic system is a complete destruction of their means of power and the elimination of Asiatic influence from the European culture.’ But the German fears of Jewish interference with their great scheme for Europe’s future, must surely have been inspired by more than just the age-old conspiratorial allegation that Jews were the main forces behind world politics. As such, this essay will seek to inspect the apparent rise of antisemitic fears at the time, and put a case forward to show how religion played into all this. (shrink)

En este trabajo intentamos hacer una aproximación a la problemática de la llamada singularidad del Holocausto. Tomamos como disparador inicial un suceso alusivo relativamente reciente que acaba de causar revuelo en la opinión pública, en el que una política Africana (Helen Zille) se declaró defensora de la singularidad del genocidio perpetrado por el régimen nazi. Desde allí intentamos aproximarnos a distintas articulaciones en favor y en contra de la tesis singularista ¿Fue el Holocausto un hecho único, sin precedentes, o apenas (...) otra manifestación de la violencia occidental, o quizás un poco las dos cosas? ¿Tiene la discusión sólo un sentido “objetivo” o también uno “subjetivo”, y en este último caso, cuál de los dos es más fundamental? En este sentido abordamos de manera sucinta las articulaciones elaboradas tanto por los defensores de la formulación extrema de la tesis singularista (específicamente Goldhagen, Katz, y Genwarth) como de sus objetores relativos (como, a nuestro entender, E. Traverso) y absolutos (por ejemplo Stannard). Intentamos mostrar que la aproximación a la problemática no resiste satisfactoriamente la adopción de posturas binarias a diferencia de lo que ocurre con acercamientos más tendientes a la conciliación como el de E. Traverso, cuyo acento en el estatus doble del Holocausto (como emergente histórico en el plano fáctico-objetivo e irrupción sin precedentes en términos del proceso de comprensión y auto-comprensión occidental del ejercicio de violencia) podría suponer antes que una resignificación del debate reciente, la inauguración, casi, de todo un nuevo horizonte de investigación. (shrink)

Many philosophers and jurists believe that individuals should sometimes be granted religiouslygrounded exemptions from laws or rules. To determine whether an exemption is merited in a particular case, the religious claim must be weighed against the countervailing values that favour the uniform application of the law or rule. This paper develops and applies a framework for assessing the weight of religious claims to exemption, across two dimensions. First, the importance of the burdened religious practice, which is determined by its (...) level of obligatoriness and centrality, according to the beliefs of the individual claimant. Second, the extent of the burden on the practice, which depends on the cost the individual bears if she both undertakes the religious practice and obeys the law or rule, where costs are assessed using an impartial account of individual interests. Exemptions should be granted when claims are weighty on either of these dimensions and the countervailing value is relatively weak. The final section of the paper responds to an important objection to this approach, which concerns administrability. (shrink)

Das Thema dieser Überlegungen ist die deutsche Philosophie und sind deutsche Philoso­phen im Nationalsozialismus. (Für unsere politisch korrekten Ohrenspitzer(innen): es war keine Frau dabei.)1 Vorweg sei gesagt, verbrecherische Schurken finden wir unter ihnen nicht, anders als bei z. B. Juristen und Medizinern. ,,Auschwitz" wurde nicht von Philoso­phen betrieben. Die Praxisferne der Philosophie hat manchmal eben auch Vorteile. Teil I beschäftigt sich mit Philosophie und Philosophen im „Dritten Reich" im allgemei­nen. Teil II stellt eine Fallstudie (Oskar Becker) vor, während der dritte (...) Teil ansatzweise eine noch skizzenhafte und vielleicht kontroverse Antwort auf die Frage versucht, welche philosophischen Umstände es begünstigt haben, daß Philosophen zu Naziphilosophen wurden, und welche dies vielleicht eher verhindert haben. (shrink)

Could a Nazi soldier or terrorist be courageous? The Courage Problem asks us to answer this sort of question, and then to explain why people are reluctant to give this answer. The present paper sheds new light on the Courage Problem by examining a controversy sparked by Bill Maher, who claimed that the 9/11 terrorists’ acts were ‘not cowardly.’ It is shown that Maher's controversy is fundamentally related to the Courage Problem. Then, a unified solution to both problems is provided. (...) This solution entails that gutsy people who lack good ends are not courageous. (shrink)

: The Islamic jurists utilized the discipline of maqāṣid al-sharīʿah,in its capacity as the philosophy of Islamic law, in their legal and ethicalinterpretations, with added interest in addressing the issues of modern times.Aphoristically subsuming the major themes of the Sharīʿah, maqāṣid play apivotal role in the domain of decision-making and deduction of rulings onunprecedented ethical discourses. Ethics represent the infrastructure of Islamiclaw and the whole science of Islamic jurisprudence operates in the lightof maqāṣid to realize the ethics in people’s (...) lives. Scrutinizing the key themesof maqāṣid-based ijtihād and scope of ethics in maqāṣid, this article delvesinto the discourse on the application of maqāṣid to medical ethics. As a casestudy, this research analyses the extent of medical confidentiality in the light ofmaqāṣid and arrives at the conclusion that limited confidentiality goes more inline with the maxims of maqāṣid. (shrink)

L’analyse des juristes médiévaux nous montre comment la manipulation des contradictions déontiques prima facie est associée, dans l’argumentation interprétative, à la théorie de la légitimité de la hiérarchie normative, entendue non seulement comme instrument politique mais aussi et essentiellement comme un instrument de rationalité au sein d’une science juridique orientée vers une théologie politique. La notion de droit naturel telle qu’elle apparaît dans certains documents emblématiques dont le Decretum de Gratien du XIIe s., ne peut être réduite au modèle intellectualiste (...) aristotélo-thomiste du XIIIe s. Il y a plusieurs façons de penser le droit naturel dans le monde médiéval chrétien et latin ; elles se maintiennent sur plusieurs siècles et l’une d’elles au moins a des points de contacts et de désaccord avec les traditions juives et musulmanes. Ces courants de pensée qui s’écartent du modèle intellectualiste aristotélo-thomiste peuvent être regroupés au sein d’une famille (au sens wittgensteinien) de modèles volontaristes : les contradictions déontiques peuvent être plus fortes que des contradictions prima facie, elles peuvent être d’authentiques contradictions renvoyant à un nouvel acte de volonté comme la seule façon d’éliminer la contradiction déontique. La théorie de Duns Scot peut être utilisée comme illustrant le problème d’une approche ontologique volontariste extrême. | Une autre version de cette contribution a été publiée dans Parisoli (2008d : 124–141). (shrink)

In this article I examine language used to define, express, and exploit “National Socialism”. These different uses vary in time and purpose, and need to be understood in context. The Nazis did not create much of the language most closely associated with National Socialism, but their use of certain language, symbols, and images has been so firmly established that we immediately recognize them even when partially spoken or indirectly referenced. This easy recognition, combined with the emotional charge of anger (...) and horror, lends itself to commercial and political exploitation. I discuss this with examples from scholarly publishing and current events, and also discuss possibilities for crowd manipulation made possible by political use of interactive social networks. (shrink)

This is an anthology that is coming out in Farsi. -/- Table of Contents (in English): -/- 1. (2021). “On a Supposed Right to Lie from Philanthropy.” The Cambridge Kant Lexicon, ed. Julian Wuerth, Cambridge: Cambridge University Press, pp. 691-695. 2. (2010). “Kant and Lying to the Murderer at the Door . . . One More Time: Kant’s Legal Philosophy and Lies to Murderers and Nazis.” The Journal of Social Philosophy, Vol. 41(4), pp. 403-421. 3. (2006). “Kant and Dependency (...) Relations: Kant on the State’s Right to Redistribute Resources to Protect the Rights of Dependents.” Dialogue – Canadian Philosophical Review, Vol. 45, pp. 257-284. 4. (2011). “A Kantian Conception of Global Justice.” Review of International Studies, Vol. 37(5), pp. 2043-2057. 5. (2010). “Kant’s Non-Absolutist Conception of Political Legitimacy: How Public Right ‘Concludes’ Private Right in ‘The Doctrine of Right.’”Kant-Studien, Vol. 3, pp. 331-351. 6. (2008). “Kant’s Non-Voluntarist Conception of Political Obligations: Why Justice Is Impossible in the State of Nature.” Kantian Review, Vol. 13(2), pp. 1-45. 7. (2021). “Kant and Arendt on Barbaric and Totalitarian Evil.” Proceedings of the Aristotelian Society, Vol. 121 (2), pp. 221-248. 8. (2020). “Kantian Care.” Caring for Liberalism: Dependency and Political Theory, ed. Asha L. Bhandary and Amy Baehr, New York: Routledge, pp. 50-74. 9. (2020). “Kant and Moral Responsibility for Animals.” Kant & Animals, ed. Lucy Allais and John Callanan, Oxford: Oxford University Press, pp. 157-175. -/- Thanks to all the original publishers of these articles for permitting them to be reprinted in translation here. Photo cover: pluspointsphere(.com). (shrink)

In this chapter I argue that there are three different senses of 'lie' in Kant's moral philosophy: the lie in the ethical sense (the broadest sense, which includes lies to oneself), the lie in the 'juristic' sense (the narrowest sense, which only includes lies that specifically harm particular others), and the lie in the sense of right (or justice), which is narrower than the ethical sense, but broader than the juristic sense, since it includes all lies told to others, including (...) those who are bent on harming innocent others. (shrink)

Theorists of public reason such as John Rawls often idealize constitutional courts as exemplars of public reason. This paper raises questions about the seduction and limits of analogies between theorists’ account of public reason and actual constitutional jurisprudence. Examining the work product of the United States Supreme Court, the paper argues that while it does engage in reason-giving to support its decisions—as the public reason strategy suggests— those reasons are (largely) legalistic and specifically juristic reasons—not the theorists’ idealized moral-political reasons (...) on matters of fundamental principle. But if constitutional courts do not engage on matters of fundamental principle, then a public reason strategy for assuaging democratic worries about judicial review would no longer be open: prominent liberal and deliberative democratic theorists could no longer point to the alleged superiority of constitutional courts to speak in the name of, and for, the people’s shared political principles. The paper extends beyond the U.S. case study by pointing to three institutional factors explaining the disanalogy between what some constitutional courts do and what public reason theories require them to do. It concludes with considerations about whether the public reason strategy might be more successfully applied to international courts. (shrink)

Hannah Arendt's rich and varied political thought is more influential today than ever before, due in part to the collapse of communism and the need for ideas that move beyond the old ideologies of the Cold War. As Dana Villa shows, however, Arendt's thought is often poorly understood, both because of its complexity and because her fame has made it easy for critics to write about what she is reputed to have said rather than what she actually wrote. Villa sets (...) out to change that here, explaining clearly, carefully, and forcefully Arendt's major contributions to our understanding of politics, modernity, and the nature of political evil in our century.Villa begins by focusing on some of the most controversial aspects of Arendt's political thought. He shows that Arendt's famous idea of the banality of evil--inspired by the trial of Adolf Eichmann--does not, as some have maintained, lessen the guilt of war criminals by suggesting that they are mere cogs in a bureaucratic machine. He examines what she meant when she wrote that terror was the essence of totalitarianism, explaining that she believed Nazi and Soviet terror served above all to reinforce the totalitarian idea that humans are expendable units, subordinate to the all-determining laws of Nature or History. Villa clarifies the personal and philosophical relationship between Arendt and Heidegger, showing how her work drew on his thought while providing a firm repudiation of Heidegger's political idiocy under the Nazis. Less controversially, but as importantly, Villa also engages with Arendt's ideas about the relationship between political thought and political action. He explores her views about the roles of theatricality, philosophical reflection, and public-spiritedness in political life. And he explores what relationship, if any, Arendt saw between totalitarianism and the "great tradition" of Western political thought. Throughout, Villa shows how Arendt's ideas illuminate contemporary debates about the nature of modernity and democracy and how they deepen our understanding of philosophers ranging from Socrates and Plato to Habermas and Leo Strauss.Direct, lucid, and powerfully argued, this is a much-needed analysis of the central ideas of one of the most influential political theorists of the twentieth century. (shrink)

The article focuses on the history of the conflict between analytic and continental tradition, which dominated the philosophy of the 20th century. Although both traditions originated from the same intellectual environment and were heavily influenced by Neo-Kantianism, their mutual lack of understanding progressed over time and, on several occasions, the situation grew into open hostility. The article describes the ten most serious conflicts: Russell vs. Bergson, Schlick vs. Husserl, Carnap vs. Heidegger, Ryle vs. Heidegger, Popper's critique of pseudoscience, conference in (...) Royaumont, Searle vs. Derrida, the revelation of Heidegger's Nazi past, Derrida's Honorary Doctorate from Cambridge, and Sokal's scam. At the beginning of the 21st century it turns out that the conflict between analytic and continental philosophy has been exhausted. What is more substantial is the dispute over the philosophical methodology, which is reflected in the division into naturalistic and anti-naturalistic thinkers. (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)

Legal theorists seek to persuade other jurists of certain theories: Textualism or purposivism; formalism or realism; natural law theory or positivism; prison reform or abolition; universal or particular human rights? Despite voluminous literature about these debates, tremendous uncertainty remains about which views experts endorse. This Article presents the first-ever empirical study of American law professors about legal theory questions. A novel dataset of over six hundred law professors reveals expert consensus and dissensus about dozens of longstanding legal theory debates. (...) -/- Law professors also debate questions about the nature of the legal academy. Descriptively, which subjects (e.g. constitutional law) and methods (e.g. law & economics) are most central within the legal academy today? And prescriptively, should today’s legal academy prioritize additional areas (e.g. legislation) or methods (e.g. critical race theory)? There is great interest in these questions but no empirical dataset of experts’ views; this results in uncertainty about which views experts endorse. This Article’s empirical study also clarifies these questions, documenting law professors’ evaluation of over one-hundred areas of law. -/- The legal theory and legal academy findings support implications for legal scholarship, education, and practice. Clearly, debates about law and the legal academy’s evolution should not be settled by a survey. Nevertheless, insofar as law professors are experts about these issues, it is instructive to discover and carefully examine what views those experts hold, so as to help determine which views are most likely to be true and how the legal academy ought to develop. (shrink)

In this article, I introduce and examine the novel concept of bench representation. Jurists and scholars have extensively examined whether judges are or ought to be considered symbolic representatives of abstract concepts (for instance, the law, equality, or justice), representatives of society as a whole, or descriptive representatives of the social groups from which they hail. However, little attention has been paid to the question whether judges act as representatives for the parties before them through their everyday work on (...) the bench. This article examines that question. Bench representation occurs when a judge, through statements or actions undertaken during the performance of official duties, speaks or acts for a party to the proceeding before them. I argue that serving as a bench representative is a common and valuable feature of what it is to be a judge and, despite appearances, usually undermines neither impartiality nor fairness. (shrink)

_La Peste_, originally published in 1947 by the Nobel Prize-winning writer Albert Camus, chronicles the progression of deadly bubonic plague as it spreads through the quarantined Algerian city of Oran. While most discussions of fictional examples within aesthetics are either historical or hypothetical, Camus offers an example of "pestilence fiction." Camus chose fiction to convey facts--about plagues in the past, his own bout with tuberculosis at age seventeen, living under quarantine away from home for several years, and forced separation from (...) his wife who remained in Algiers while he was abroad in Nazi-occupied France. His own lived experiences undergird an imaginative account of shared human realities with which we can identify: vulnerability to the disease, isolation, fear, and finally humanitarianism. _The Plague_ teaches us to neither covet nor expect what we so casually took for granted. This collection of original essays on philosophical themes in _The Plague_ is of special relevance during and in the aftermath of Covid-19 but also provides reflections that will be of lasting value to those interested in this classic work of literature. The novel explores questions of enduring importance. Do we collectively meet the threshold of ethical behavior posed by Camus who wrote, "What's true of all the evils in the world is true of plague as well. It helps men to rise above themselves"? Or does the absurd undermine the compassionate? Do "heroes" dutifully fight a plague with "common decency," or does human nature resign itself to the normalization of uncontrollable suffering and death? There are myriad ways to approach the novel and this volume encourages readers to ponder human dilemmas in fictional Oran informed by our current pandemic. Series editor forward by Richard Eldridge. List of Contributors includes Steven G. Kellman, Jane E. Schultz, Andrew Edgar, Kathleen Higgins, Edward B. Weiser, Cynthia A. Freeland, and Margaret E. Gray; see "Introduction" by Peg Brand Weiser below. (shrink)

This dissertation explores how antiquity and some of its early modern admirers understand the notion of certainty, especially as it is theorized in Quintilian's Institutio Oratoria, a first-century educational manual for the aspiring orator that defines certainty in terms of consensus. As part of a larger discussion of argumentative strategies, Quintilian turns to the “nature of all arguments,” which he defines as “reasoning which lends credence to what is doubtful by means of what is certain” (ratio per ea quae certa (...) sunt fidem dubiis adferens: quae natura est omnium argumentorum, V.10.8). These certainties, he later specifies, include not matters of scientific demonstration or objective fact, but the agreements of various communities: the laws of cities, local customs, and other forms of consensus. As the foundation of persuasive rhetoric, these consensus-based certainties situate argumentation as the practice of crafting agreements rather than demonstrating necessary conclusions. Taking as its point of departure Quintilian's novel understanding of certainty, this study looks to some of Quintilian's intellectual forebears as well as his later readers to show how his work is both a nexus of earlier intellectual developments as well as an important inspiration for later accounts of certainty, even into the early modern period. After illustrating in the first chapters of this dissertation how Quintilian's manual incorporates elements from Aristotelian notions of dialectic and rhetoric as well as from Ciceronian skeptical approaches to epistemology, I show how Quintilian's curriculum for the orator shapes the thought of Italian humanists, especially that of Lorenzo Valla (1406–1457), a reformer of scholastic logic and dialectic, and Giambattista Vico (1668–1744), an influential Neapolitan jurist. Adopting Quintilian's rendering of certainty as a matter of agreements and conventions, these later authors elaborate their own novel approaches to various fields—including law, language, and logic—through this ancient understanding of certum. Contrary to modern notions of certainty as objective or scientific fact, Quintilian's humanist readers continue to root this concept in consensus, both within the courtroom and without. (shrink)

Despite the Nazi horrors, in 1953 the new eugenics was founded, when Watson and Crick postulated the double helix of DNA as the basis of chemical heredity. In 1961, scientists have deciphered the genetic code of DNA, laying the groundwork for code manipulation and the potential building of new life forms. After thirty years from the discovery of the DNA structure, the experimenters began to carry out the first clinical studies of human somatic cell therapy. The practice of prenatal genetic (...) tests identifies genes or unwanted genetic markers. Parents can choose to continue pregnancy or give up the fetus. Once the preimplantation genetic diagnosis occurs, potential parents can choose to use in vitro fertilization and then test early embryonic cells to identify embryos with genes they prefer or avoid. Because of concerns about eugenics, genetic counseling is based on a "non-directive" policy to ensure respect for reproductive autonomy. The argument for this counseling service is that we should balance parental autonomy with child's autonomy in the future. Specialists have not yet given a clear answer to the question of whether these practices should be considered eugenic practices, or if they are moral practices. DOI: 10.13140/RG.2.2.28777.95849. (shrink)

A current focus of legal debate is the proper role of the courts in the interpretation of statutes and the Constitution. Are judges to look solely to the naked language of an enactment, then logically deduce its application in simple syllogistic fashion, as legal formalists had purported to do? Or may the inquiry into meaning be informed by perhaps unbridled and unaccountable judicial notions of public policy, using legal realism to best promote the general welfare? Judge Posner considers the concepts (...) of formalism and realism to be meaningful and useful in common law reasoning but in interpretation to be useless and, worse, forbidden. He analogizes unclear "orders" from a legislature to garbled battlefield communications, and argues that the duty of the recipient of those orders (the judge) is to advance as best he can the enterprise set on foot by the superiors. Case studies elaborate this thesis. Judicial decisions interpreting fixed texts, Judge Posner concludes, can be neither logically correct or incorrect, philosophically sound or unsound, until the ultimate jurist, time, has adjudged their results. (shrink)

One of the most detailed early modern discussions of the morality of esteem can be found in the work of the reformed jurist and historian Marquard Freher (1565–1614). Since the question of how much esteem others deserve is fraught with a high degree of uncertainty, Freher relied on the work of other legal humanists, who discussed questions of esteem from the perspective of arguments from the presumption of goodness. The humanist approach to the presumption of goodness integrated considerations about presumed (...) non-delinquency with considerations concerning natural needs, natural rights and natural duties grounded in natural rational capacities common to all (grown-up, healthy) human beings. It advised us to fulfill natural duties that derive from the natural need of being held in good esteem by others, and to develop socially valuable attitudes such as trust and positive emotions toward others. At the same time, this approach was responsive to considerations of prudence, both in grounding the presumption of goodness in considerations concerning causal powers and in balancing the presumption of goodness against a variety of presumptions of badness. Freher applied this understanding of the presumption of goodness to political practice in his role as an advisor to the Palatinate. (shrink)

Does the idea of justice make sense only in the human world? Can it make sense also in the world of non-human animals? Put another way, is there scope for justice in the animal world, or is it simply a “might is right” world? Starting from recent research of ethologists, philosophers, psychologists, and jurists, we will reflect on the hypothesis of the existence of an “animal justice” through the identification of three possible contexts of justice in the animal world (...) (distributive justice, ludic fairness, retributive justice) and the analysis of a famous experiment on justice among monkeys. This research allows us to explore the axiological dimension of the hypothetical deontic world of non human animals. (shrink)

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

This paper explores the relationship between eugenics, disability, and dehumanization, with a focus on forms of eugenics beyond Nazi eugenics.

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)

There is a particular ressonance between the thinking of Walter Benjamin and that of the German jurist Carl Schmitt, including the fact that both analyse the 16th and 17th centuries in order to understand the 20th. Regarding this fact, the article attempts to clarify some themes that lead Schmitt’s work, i.e that of State of Exception, that of theologization of politics, the critique of parliamentarism as support of the Modern State, the tension between democracy and dictatorship, to explain how the (...) dialog between the two thinkers occurs, seeking thus for a better understanding of key works of Benjamin, specially The Origin of German Tragic Drama. (shrink)

‘Attempted negligence’ is a category of criminal offense that many jurists and philosophers have law have deemed conceptually incoherent. In his Attempts: In the Philosophy of Action and the Criminal Law, Gideon Yaffe challenges this dismissal, anchoring his argument in cases of what he calls ‘mental self-management’ in which agents plan to bring about that they perform unintentional actions at a later time. He plausibly argues that mental self-management-type attempted negligence is possible. However, his account raises the question whether (...) such attempts can be successful: whether, in other words, attempts to perform unintentional actions at a later time could issue in actions that are, indeed, unintentional. Intuitively, at least, it would seem that we should answer in the affirmative. However, that answer poses problems for a plausible and widely-held account of intentional action. Al Mele, responding to Yaffe’s account, has pointed out this problem without, I think, providing a satisfactory resolution. I propose another way of vindicating the possibility of successful attempted negligence with small, if significant, revision to the standard view of intentional action. In these cases, I argue, agents fail to act intentionally because they render themselves, through their acts of self-management, unaware that they are successfully executing their intentions. Moreover, I argue that these agents’ intentions to bring about that they perform unintentional actions do not commit them to acting intentionally because of the nature of intentions to bring about actions. I offer an account of the intention to bring about that one A’s and defend it against some objections. (shrink)

In this paper, I argue that businesses bear a pro tanto, negative, moral obligation to refuse to engage in economic relationships with representatives of intolerable ideologies. For example, restaurants should refuse to serve those displaying Nazi symbols. The crux of this argument is the claim that normal economic activity is not a morally neutral activity but rather an exercise of political power. When a business refuses to engage with someone because of their membership in some group, e.g., Black Americans, this (...) is a use of political power to signal that Black Americans are other. Conversely, when businesses engage with someone who is clearly representing an intolerable ideology, this is a use of political power that signals the acceptability of that ideology. Businesses should not do this. (shrink)

There has been much recent debate concerning how Hannah Arendt's concepts of radical evil and the banality of evil `fit together', if at all. I argue that the first of these concepts deals with a certain type of evil, in particular the evil that occurred in the Nazi death camps. The second deals with a certain type of perpetrator of evil, in particular the banal `nobody', Eichmann. As such, bar a localized incompatibility in regard to Arendt's early account of the (...) motivation of perpetrators of radical evil, these two concepts are independent but nonetheless highly complementary. Key Words: Hannah Arendt • banality of evil • Adolf Eichmann • evil • forgiveness • Immanuel Kant • punishment • radical evil. (shrink)

This paper begins by saying enough about eugenics to explain why disability is central to eugenics (section 2), then elaborates on why cognitive disability has played and continues to play a special role in eugenics and in thinking about moral status (section 3) before identifying three reasons why eugenics remains a live issue in contemporary bioethics (section 4). After a reminder of the connections between Nazi eugenics, medicine, and bioethics (section 5), it returns to take up two more specific clusters (...) of issues at the intersection of eugenics, disability, and bioethics. These concern questions of life, death, and reproductive value (section 6) and the value of standpoint theory and epistemology for understanding some of the tensions between bioethics and disability in light of a shared eugenic past (section 7). (shrink)

Lisa Tessman (2016: 164) recounts the case of a Jewish mother, running from Nazis, who faced a terrible choice. She could (a) drown her infant, or (b) accept the virtual certainty that her baby’s cries would doom the refugee group she was fleeing with. Given those options, (b) is worse. If the whole group is discovered, many will die, including the infant. Still, preemptively drowning a baby—indeed one’s own baby—is a terrible act. To make sense of cases like this, (...) Tessman turns to the concept of moral failure: an act that violates an important moral value such that the loss cannot be fully redeemed by gains elsewhere. I will argue that criminal justice needs a moral framework like Tessman’s. It needs to make sense of the fact that some options are genuinely better than others, without letting honorifics like ‘justice’ obscure the equally important fact the best available option might be terrible. More specifically, I will argue that when punishment involves prison, as it often does, it is a moral failure. It can be justified only in the sense that preemptively drowning an infant can be justified: like the fleeing mother, society might on some terrible occasions find itself with no better alternative. (shrink)