This article maintains that the so-called theory-practice divide in legal education is not only factually false but semantically impossible. -/- As to the divide's falsity, practitioners have of course performed excellent scholarship and academics have excelled in practice. As to the divide's semantic impossibility, this article examines, among other things: -/- (1) the essential role of experience in meaning, -/- (2) the resulting inseparability of theory and practice in the world of experience, -/- (3) problems the divide shares (...) in common with debunked Cartesian dualism, and -/- (4) modern cognitive psychology’s notions of embodied meaning which further underscore the semantic impossibility of separating theory from practice in the world of experience. -/- Using insights from such examinations, this article also explores implications of a debunked theory-practice divide for, among other things, law school curriculums and law school faculty hiring standards. -/- Keywords: legal education, legal writing, semantics, theory, practice, experience, Charles Sanders Peirce, embodied meaning, cognitive psychology, Cartesian dualism, affordance knowledge, metaphor, George Lakoff, category, humanities, Langdell, pragmatism, semiotics, philosophy. (shrink)

Note: This draft was updated on November 10, 2020. Discussing federal statutes, Justice Scalia tells us that “[t]he stark reality is that the only thing that one can say for sure was agreed to by both houses and the president (on signing the bill) is the text of the statute. The rest is legal fiction." How should we take this claim? If we take "text" to mean the printed text, that text without more is just a series of marks. (...) If instead we take "text" (as we must) to refer to something off the page such as the "meaning" of the series of marks at issue, what is that meaning and how do we know that all the legislators "agreed" on that "meaning"? In seeking answers here, we necessarily delve into semiotics (i.e., the “general theory of signs”) by noting that meaningful ink marks ("signifiers) signify a meaning beyond themselves (the "signified.") Thus, understanding how signs function is integral to lawyers' textual and linguistic analysis. Additionally, as this article demonstrates, legal analysis and rhetoric are much impoverished if lawyers ignore nonverbal signs such as icons, indices, and nonverbal symbols. In providing a broad overview of semiotics for lawyers, this article thus (1) begins with a general definition of signs and the related notion of intentionality. It then turns to, among other things, (2) the structure and concomitants of signs in more detail (including the signifier and the signified), (3) the possible correlations of the signifier and the signified that generate signs of interest to lawyers such as the index, the icon, and the symbol; (5) the expansion of legal rhetoric through use of the index, the icon, and the non-verbal as well as the verbal symbol, (6) the nature of various semiotic acts in public and private law (including assertives, commissives, directives, and verdictives); (7) the interpretation and construction of semiotic acts (including contracts as commissives and legislation as directives); (8) the role of speaker or reader meaning in the interpretation and construction of semiotic acts; (9) the semiotics of meaning, time, and the fixation of meaning debate; (10) the impact of signifier drift; (11) the distinction between sense and understanding; and (12) some brief reflections on semiotics and the First Amendment. This article also provides an Appendix of further terms and concepts useful to lawyers in their explorations of semiotics. (shrink)

Christopher Columbus Langdell has not only damaged the study of law with his three follies: his legal formalism, his redacted appellate case method, and his notion that legal practice taints the professor of law. His three follies have also impaired character development critical for legal actors. This Article focuses on four such critical character traits and virtues impaired by Langdell: (i) imagination, (ii) empathy, (ii) balance, and (iv) integrity. -/- This Article also calls out potential (...) character issues with two professor types inspired by Langdell: (v) the hazing professor who confuses intellectual rigor with intense discomfort and who uses the redacted appellate case method to inflict such discomfort at the expense of better pedagogy, and (vi) the professor without substantial practice experience who is substantially paid to teach what she has never practiced. -/- Agreeing with C.S. Pierce that the best argument is a cable rather than a chain, I end by weaving in a Langdell villanelle. I hope such a cable can help lift Langdell and his follies from legal education and the world. (shrink)

The twentieth century in legal education began with Dean Roscoe Pound of Harvard Law School demanding that law take broader perspectives. The time had arrived for sweeping changes in how judges judged, law professors taught, and lawyers practiced. For thirty years Roscoe Pound labored tirelessly in the design of a "Sociological Jurisprudence." Toward the end of Pound's twenty years as Dean of Harvard Law School, Karl Llewellyn of Columbia Law School crafted a second perspective on law, which he (...) called "Legal Realism". Pound retired from his role as Dean in 1936. In 1935 the German Scholar Ludwig Fleck published a work which studied the nature of science, and articulated important precepts and maxims about how the structure of science precluded innovation and creative design. By 1963 Thomas Kuhn published a sequel to Fleck's work titled "The Structure of Scientific Revolutions." Kuhn endeavored to set the contours of science which could be identified as constraints to the formation of new knowledge. ;Roscoe Pound and Karl Llewellyn set out to bring the American legal process forward by monumental steps in how law was taught and practiced. American legal education up to the late nineteenth century was a system of apprenticeships. Young men paid law firms to gain experience in the law. Their time was sold for more than they were paid, and law firms enjoyed the benefits of the apprenticeship system. Today, law schools approved by the American Bar Association prepare and graduate candidates for licensing exams. Thirty percent of those are not prepared to be examined, and fail the state bar exams. ;This thesis explores the process used by Pound to create his "Sociological Jurisprudence," examines Pound's biographical and personal history, studies his design process, then articulates qualitative design questions and policy recommendations for improvements in the construction of new legal paradigms and academic policy for law school graduates. By comprehending how difficult change is in design though understanding Fleck and Kuhn's constructions of paradigmatic constraints, a path is carved to forward new scholarship representative of Pound and Llewellyn's skills and abilities. (shrink)

The ‘community of inquiry’ as formulated by CS Peirce is grounded in the notion of communities of disciplinary-based inquiry engaged in the construction of knowledge. The phrase ‘converting the classroom into a community of inquiry’ is commonly understood as a pedagogical activity with a philosophical focus to guide classroom discussion. But it has a broader application, to transform the classroom into a community of inquiry. The literature is not clear on what this means for reconstructing education and how it (...) translates into schooling practices. Integral to the method of the community of inquiry is the ability of the classroom teacher to actively engage in the theories and practices of discipline-based communities of inquiry so as to become informed by the norms of the disciplines, not only to aspire to competence within the disciplines, but to develop habits of self-correction for reconstructing those same norms when faced with novel problems and solutions, including those in the classroom. (shrink)

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

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)

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

Is the family subject to principles of justice? In "A Theory of Justice", John Rawls includes the (monogamous) family along with the market and the government as among the, "basic institutions of society", to which principles of justice apply. Justice, he famously insists, is primary in politics as truth is in science: the only excuse for tolerating injustice is that no lesser injustice is possible. The point of the present paper is that Rawls doesn't actually mean this. When it comes (...) to the family, and in particular its impact on fair equal opportunity, (the first part of the Difference Principle, Rawls' second principle of justice), he abandons the priority of justice. I also argue that he is right to do so. -/- The central argument is simple. As Rawls admits, what family one is raised by profoundly affects one's life chances: a child raised by a family has far greater life chances on every dimension than one raised in a poorer family that may lack books, education, and time to give the child attention. But the prevailing family arrangements in the industrialized West, assigning children to be raised by their biological parents, is guaranteed to perpetuate this injustice. While Rawls says an unjust institution in the basic structure of society, in which he includes the family, must be, "reformed or abolished," he refrains from calling for the reform or abolition of the family. We must simply work around it to compensate for the injustices he admits it involves. And this despite the fact that alternative arrangements involving communal child-rearing (Plato) or assigning children to those best qualified to raise them (Rousseau) are common in the philosophical literature. Moreover, the practice of having children raised by their biological parents is a relatively recent one, at least in the West, where, before the late 18th century, fostering-out or apprenticeship arrangements were normal and expected for both rich and poor for centuries. -/- Much of the paper is devoted to fine-grained textual analysis of Rawls' attempts to avoid the devastating implications of this argument for his theory of justice -- much of which are stated only in the original edition of "A Theory of Justice" and simply deleted, without substitution by anything better, in the second edition. In the end, Rawls has no way out. He cannot keep the priority of justice, fair equality of opportunity, and the monogamous family in which children are raised by their biological parents. As he admits, these are mutually inconsistent. -/- In the final part of the paper, I argue that Rawls should give up on the priority of justice. While child-rearing by the biological parents is a historical anomaly, in the real modern world it would be politically unfeasible to institute Platonic, Rousseauean, or similar legislation that purportedly assigned children to those best able to raise them, regardless of biological relationship. Since Rawls is committed to principles of political stability and feasibility, as he should be, and since ought implies can, such proposals are off the table. I concur with Rawls that we must work around this injustice, even those there are more just arrangements available in principle. But the cost of this -- less high than Rawls suggests -- is abandoning the principle of the priority of justice. Justice is one of a number of considerations that we must or may balance in deciding on the best attainable social relations. It is not a trump. However, this comes a great cost for Rawls: he must also abandon the lexical ordering of principles of justice or, in general, right or good principles of social order, in favor of the messy intuitionist balancing that his theory is designed to avoid. -/- One feature of the paper that is worth independent attention is a discussion of Marx's rejection of justice in the Critique of the Gotha Program, which I explicate, and urge, without adopting it, that it has a great deal more force than is widely understood. (shrink)

The hermeneutic pragmatism explored in this article timely examines how “post-truth” claims over-estimate semantic freedoms while at the same time underestimating semantic and pre-semantic restraints. Such pragmatism also timely examines how formalists err by committing the reverse errors. Drawing on insights from James, Peirce, Putnam, Rorty, Gadamer, Derrida, and others, such hermeneutic pragmatism explores (1) the necessary role of both internal and objective experience in meaning, (2) the resulting instrumental nature of concepts required to deal with such experience, (3) the (...) related need for workability to apply to the “the collectivity of experience’s demands, nothing being omitted,” (4) the inherent role of morality and other norms in measuring such workability, (5) the semantic as well as experiential nature of our workable realities, (6) the semantic freedoms involved in constructing, framing, and retaining our workable realities and concepts, and (7) the semantic, pre-semantic, and other restraints on constructing, framing, and retaining our workable realities and concepts. -/- Such hermeneutic pragmatism also introduces Eunomia, a real-world alternative to Dworkin’s superhuman judge Hercules. Named after the Greek goddess of good order, the human Eunomia represents the reasonable judge excellently versed in (among other things) legal theory, legal practice, linguistics, and philosophy of language. Additionally, in its appendices, this article surveys the pragmatic restraints of “implementives” and provides a detailed overview of pragmatic “workability” restraints for both law and fact. -/- (By “sense” the title of this article means not only “meaning conveyed or intended” but also “capacity for effective application of the powers of the mind as a basis for action or response.” See Sense, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2014) “Workable” has the broad meaning discussed in Sections II, IV, and Appendix C of the Article, and "good" is further explored in the section on Eunomia, namesake of the Greek goddess of good order.) -/- Keywords: Pragmatism, Hermeneutic, Truth, Rule of Law, William James, C.S. Peirce, Hilary Putnam, Richard Rorty, Gadamer, Habermas, Derrida, Lon Fuller, H.L.A. Hart, Post-truth, Postmodernism, Trump, Rhetoric, Meaning, Interpretation, Metaphor, Category, Lifeworld, Formalism, Framing, Deconstruction. (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)

Clinical Legal Education programmes now take place in most law schools in England and Wales. However, legal education continues to be predominantly focused on the analysis and application of rules, doctrines, and theories to hypothetical scenarios or essay questions. This form of pedagogy either minimises or ignores the role of the client in terms of supplying lawyers with knowledge pertinent to their case. In other words, it overlooks the fact that the lawyer’s acquisition of knowledge is (...) not confined to technical rationality. This article seeks to achieve three broad aims. First, to contribute to the debate concerning the epistemology of reflective practice. Second, to develop a theoretical reflective cycle, informed by Kant’s transcendental idealism, which seeks to maximise knowledge acquisition in legal education, namely knowledge supplied by the client. Third, to address implicit bias using the proposed reflective cycle. An optimal pedagogy for using this cycle is Clinical Legal Education, namely live client clinics. (shrink)

As a practicing life scientist, Descartes must have a theory of what it means to be a living being. In this paper, I provide an account of what his theoretical conception of living bodies must be. I then show that this conception might well run afoul of his rejection of final causal explanations in natural philosophy. Nonetheless, I show how Descartes might have made use of such explanations as merely hypothetical, even though he explicitly blocks this move. I conclude by (...) suggesting that there is no reason for him to have blocked the use of hypothetical final causes in this way. (shrink)

David McCarthy has recently suggested that our compensation and liability practices may be interpreted as reflecting a fundamental norm to hold people liable for imposing risk of harm on others. Independently, closely related ideas have been criticised by Stephen R. Perry and Arthur Ripstein as incompatible with central features of negligence law. We aim to show that these objections are unsuccessful against McCarthy’s Risk–liability theory, and that such an approach is a promising means both for understanding the moral basis of (...) liability for negligence and for reasoning about possible reforms of the institution of negligence law. (shrink)

Writing strategic documents is a major practice of many actors striving to see their educational ideas realised in the curriculum. In these documents, arguments are systematically developed to create the legitimacy of a new educational goal and competence to make claims about it. Through a qualitative analysis of the writing strategies used in these texts, I show how two of the main actors in the Czech educational discourse have developed a proof that a new educational goal is needed. I draw (...) on the connection of the relational approach in the sociology of education with Lyotard’s analytical semantics of instances in the event. The comparison of the writing strategies in the two documents reveals differences in the formation of a particular pattern of justification. In one case the texts function as a herald of pure reality, and in the other case as a messenger of other witnesses. This reveals different regimens of proof, although both of them were written as prescriptive directives – normative models of the educational world. (shrink)

Criminal law practices in the US, including policing and incarceration, have drawn heavy criticism for their disproportionate impact on black people, particularly black men. At the same time, some feminist scholars and activists advocate for increases in criminal law responses to sexual assault, including expanding criminal statutes to cover more instances of sexual assault and increasing sentencing guidelines. These reforms are often justified by claims that criminal law should express more feminist values and reject sexist social schemas. This paper makes (...) the case that criminal legal interventions aimed at changing sexist social schemas, such as ‘rape culture,’ are unlikely to be successful because criminal law is effective at maintaining existing social norms, but bad at introducing novel ones. Similarly, in the US, criminality has been ideologically linked to blackness, so attempts to use the stigma of criminality to combat sexual violence are likely to reinforce anti-black racism. The very meaning of a criminal law depends on related social schemas, and the racist social schemas associated with criminality undermine the ability of criminal legal responses to present anti-sexist values. At best, criminal legal reforms aimed at expressing the equal dignity of women will be ambiguous because their meaning is negotiated by existing sexist and racist social schemas. Thus, penal expressivism cannot offer a justification for using criminal law to combat sexual assault. (shrink)

Legal philosophers distinguish between a static and a dynamic interpretation of law. The former assumes that the meaning of the words used in a legal text is set at the moment of its enactment and does not change with time. The latter allows the interpreters to update the meaning and apply a contemporary understanding to the text. The dispute between these competing theories has significant ramifications for social and political life. To take an example, depending on the approach, (...) the term “cruel punishment” used in the US Constitution will be given an 18th century meaning or a contemporary one. -/- The philosophy of language seems to provide greater support to the static approach to legal interpretation. Within this approach the lawmaker is perceived as a speaker and legal texts are interpreted as utterances. As a consequence, interpretation is a quest for the speaker/lawmaker’s intention or the public meaning that prevailed at the time of enactment. Neither the intention nor the public meaning are considered to have changed in time. -/- In this paper I argue that the philosophy of language provides the dynamic approach with an equally robust support as the static one. This support comes from an externalist perspective in semantics, rooted in philosophical pragmatism and supported by Ruth Millikan’s concept of meaning as proper function. Grounding the dynamic approach in a well-founded linguistic philosophy rises to the challenge presented by the originalists’ declaration that “it takes a theory to beat a theory”. (shrink)

Interpretations of Peirce’s development after 1898 often mix three kinds of arguments: one argument about belief, one argument about philosophy and practice, and one argument about the causal role of James’s writings on Peirce’s development. I shall focus here on the last two points: theory and practice and the alleged role of James. James’s role in Peirce’s development is somewhat overestimated and one can doubt Peirce’s worries about the dogmatic use of the scientific method and of philosophy in morals are (...) conditioned by James’s writings only. Peirce’s re-readings and refinements of his Illustrations started no later than the early 1880s, at a time when James was not as central a reference as it became after 1900 for the philosophic stage. To support that claim, I wish to focus here on one particular point: the distrust towards those who try to “mingle” philosophy and practice is by no means a new theme in the 1890s. One of the most telling examples of such a claim is the 1885 review of Royce’s The Religious Aspect of Philosophy, some thirteen years before the quarrel over pragmatism started. (shrink)

There is a fundamental incompatibility between a developmental orientation to education and instrumental and scientistic conceptions of rationality that dominate educational inquiry. An expanded conception of rationality is provided in the critical theory of Jurgen Habermas. This study draws on Habermas' work to present a theory of inquiry that is consistent with a developmental perspective. I distinguish three interdependent realms of experience--the objective world of nature, the intersubjective world of society and the subjective world of each individual. Then, I (...) argue that current conceptions of rationality tend to reduce personal and interpersonal experience to the objective material realm. Under prevailing conceptions, human action is rational when it pursues valued ends guided by knowledge about the world and effective means-ends relationships. Both theories of knowledge and theories of value in these conceptions are inadequate for a developmental orientation. -/- First, knowledge is defined as justified true belief. Theories of truth are based on the correspondence of beliefs with an external world; theories of justification are based on perceptual certainty. These conceptions objectify experience by making experience an object of natural science and instrumental action separate from and external to the person. Such conceptions reduce experience to the objective material dimension and cannot adequately account for the personal and interpersonal dimensions of human experience and understanding. -/- Second, because value claims are not capable of justification by these standards, they are considered ultimately irrational and treated as subjectively held empirical properties of individuals. The only standard of rationality is efficiency and economy in the selection of means. Ethics is reduced to empirical science. But the removal of practical questions from public discourse divests action of ethical significance. With its strict separation of descriptive and normative domains, empirical-analytic inquiry can neither acknowledge its standard of instrumental efficiency nor reach into the practical arena to guide the selection of values and ends that orient and gude human action. Practical questions that cannot be framed in terms of technical problems cannot be taken seriously. -/- Whereas these conceptions of rationality are generally derived from theories of experienced based on individual consciousness, Habermas looks to language for a more adequate account of the intersubjective nature of experience. This account provides an expanded conception of rationality with theories for justifying beliefs and actions that incorporate the personal and interpersonal dimensions of experience so critical to a developmental perspective. Through an analysis of the universal pragmatic structure of language directed to the resolution of problematic truth claims and moral claims, this study presents a consensus theory of truth (for a more adequate theory of knowledge) and a communicative theory of ethics (based on a more adequate theory of human values). -/- The concept of truth refers to a universal pragmatic convention of the unforced agreement of an ideal community of inquirers. Ethical conduct is guided by norms that reflect a rational general will and that regulate genuine human needs. Problematic truth claims and moral claims are discursively justified by the force of the better argument under the conditions of an anticipated "ideal speech situation" inherent in the very structure of communication. Furthermore, a theory of inquiry is developed in which inquiry processes are represented as historically evolved extensions of developmental process in the three realms of experience. Three interrelated forms of inquiry are derived--empirical-analytic, hermeneutic and critical. I derive each from its respective experiential realm, and indicate the logic of inquiry, object domain, and kind of knowledge gained from each. -/- An exploration of the relationship between inquiry and development provides a foundation for a developmental orientation to education. Finally, the theory is contrasted with prevailing inquiry approaches in education and illustrated with an application to a particular educational problem. (shrink)

Learner autonomy has gained particular attention in Vietnamese higher education since a major education reform launched in 2005. Although a number of studies have been conducted to investigate the concept in the Vietnamese higher education context, most of them have focused on exploring teachers’ and students’ perceptions and beliefs around the concept of autonomy (T. V. Nguyen, 2011; Dang, 2012; Humphreys & Wyatt, 2013; T. N. Nguyen, 2014), and on the possibility of promoting it in Vietnamese universities (...) (Trinh, 2005; L. T. C. Nguyen, 2009; Q. X. Le, 2013; Phan, 2015). There appear to be no studies on the demonstration of learner autonomy and the potential factors, including factors relating to assessment practice, that support or inhibit its demonstration in the Vietnamese higher education context. Building on a social constructivist paradigm and sociocultural theories of learning, this qualitative case study aims to investigate the demonstration of learner autonomy in the context of assessment in English as a foreign language (EFL) classes in a university in Vietnam, and the (potential) factors in assessment that facilitate or constrain the demonstration of learner autonomy in that context. The data were collected through participant observation of teachers’ and students’ practices in three EFL classes at the university during a complete semester, one-on-one semi-structured interviews with three teachers and sixteen students, and post-observation interviews with the three teachers and their students. Additional data which characterised the context of the study were gathered and included documents at the researched university relating to higher education policies, assessment policies, English teaching and learning policies, EFL curriculum and syllabus, test samples, and English teaching textbooks. The study found that students generally demonstrated a low level of autonomy in the classroom despite their positive attitude towards the concept and their awareness of its role in English learning. Primary contributing factors included negative washback of current assessment systems on teaching and learning practices, prescribed assessment practices in the class, teachers’ and learners’ limited and divergent understanding about the concept of learner autonomy, and their limited understanding about the role of assessment in learning in general and in learner autonomy promotion and development in particular. The study also found that students who stated that English was relevant to their personal needs were generally more autonomous outside of the classroom than inside it. Findings from this study support the view that learner autonomy reflects the relationship between learners and the learning environment, and is an emergent product of the interaction between learners and contextual factors including their teacher, their peers, the learning task, class rules and values, and university values and regulations. The study’s findings are significant, as they highlight the social dimension of learner autonomy and the importance of facilitating favourable conditions for teachers to provide learner autonomy and for learners to manifest it. The study also highlights the need to reconsider assessment practices to promote learner autonomy. (shrink)

This paper expands on another which focussed on Socrates’s question: ‘How should one live?’. The present paper also focusses on the ‘meaning of life’ and ‘meaning in life’ issues, and more on rights. To fully rationally answer Socrates’s question, we need to answer the epistemic question: ‘How can one know how one should live?’. This paper attempts to answer both. And knowing how one should live fundamentally involves knowing what values one should live by. This includes which rights one should (...) have and which rights others should have. So one’s values include how one should treat all persons (and (other) animals, the environment and so on.) All this relates to what one finds meaningful in life and the meaning or point of one’s life. In sum, all the notions in this paper’s title are interrelated. The issue of rationality is crucial here. Just one example here (qualified later) is that our rationality gives us cognitively meaningful notions. ‘Rationality’ here only concerns knowledge, e.g., ways to acquire scientific knowledge, and meta-knowledge concerning values. No values or rights as such are rational or knowledge. However:- Many factors are required for human rationality to exist and develop, e.g., life, mental health and evidence-based education. Human rationality’s need for those factors, hence their value to rationality, is rationally-unquestionable – and that applies to the practised values prescribing the prescribable factors. With this, there are rationally-unquestionable rights to those factors. Those prescribable factors require certain interrelated epistemic, moral, social, political, legal, educational and other values/rights to be practised. This implies a pro-rationality values-theory with one obligatory, general end – a uniquely rationally-unquestionable end. This end provides the basis for answering Socrates’s question as rationally (correctly) as is possible for values/rights. That end is fundamentally epistemic, namely ‘Be pro-rationality’, yet the theory has deeply-humanly-meaningful, universal applications. It has implications for current and all possible moral, social, political, legal, educational, environmental etc issues. E.g., the theory shows that human rationality crucially requires love and certain other emotions, health-care, education and upbringing. These require certain right to be respected and practised. With this, the paper discusses affection, free speech, journalism, psychotherapy, political and sexual consent, responsibilities, freedom and government. The theory’s general sub-values prescribe much prescribed by some other theories, e.g., broad and deep knowledge-acquisition (in certain areas), rationally-critical thinking, non-sexism, non-racism, general types of liberalism, holistic flourishing, happiness, unselfishness and fairness. However, all other values-theories lack pro-rationality theory’s maximum possible rational-unquestionability, internal coherence and coherence with rationality. The theory encourages (the right to) total freedom in a-rationality areas, areas irrelevant to its obligatory end. The theory inherently requires its advocates to be (self )critical, rationally viewing the theory’s necessarily human-suggested specifics as often fallible or unavoidably approximate. So the theory is a work-in-progress. (shrink)

How do we care well for a human being: ourselves or another? Non-Kantian scholars rarely identify the philosophy of Kant as a particularly useful resource with which to understand the full complexity of human care. Kant’s philosophy is often taken to presuppose that a philosophical analysis of good human life needs to attend only to how autonomous, rational agents—sprung up like mushrooms out of nowhere, without a childhood, never sick, always independent—ought to act respectfully, and how they can be forced (...) to interact rightfully. Questions involving aspects of human life captured by what Eva Kittay aptly phrased “the fact of dependency” (1999) —such as our vulnerable, fragile, and embodied social natures, asymmetrical care relations, and deep systemic injustices—are therefore commonly thought to be beyond the grasp of Kant and of Kantian philosophy. Against this historically prominent understanding of Kant’s practical philosophy, below I engage and draw upon recent Kant scholarship which shows both the inadequacy of such rationalist readings and the fruitfulness of using Kant’s practical philosophy to enhance our understanding of human care relations. After situating my approach in the existing, relevant secondary literature on Kant’s human agent, I explore key features of Kant’s accounts of human nature and the highest good. I pay special attention to his proposal that our human nature comprises reflective and unreflective aspects and patterns that we (ought to) strive to develop, transform, and integrate in wise ways through our faculty of desire. In addition, I emphasize the dangers that our ineradicable propensity to do bad things (evil) poses for our projects of self- and other- care. I proceed by outlining how Kant’s account of moral (ethical and legal) responsibility for self and others is developed through his theories of freedom, that is, through his theory of virtue (virtuous internal freedom with its account of perfect and imperfect duties) and his theory of right (rightful external freedom with its account of innate, private, and public right). On the conception I am advancing, we are pretty messy, fragile, and vulnerable beings whose projects of caring are difficult, ongoing, and complex. On the one hand, we (should) strive to care for ourselves (by striving to manage and heal badly functioning parts and by developing, transforming, and integrating immature or distinct parts of ourselves into good wholes) and for others (assisting them in their projects of management and healing and of developing, transforming, and integrating themselves into good wholes) in ways that are both respectful and attentive to the particular people we are—people with lives of our own to live—and the kinds of relationships we share. On the other hand, we should, and can, be forced to interact rightfully, meaning interaction consistent with one another’s basic (innate, private, and public) rights and, hence, contribute to reform projects that improve our inherited, imperfect legal-political systems with regard to care relations. Bringing Kant’s philosophy into dialogue with care theorists, I conclude, advances the insights of both traditions by showing one way to arrive at a multifaceted, yet unified account of human care relations where our embodied, social as well as our rational natures are given due consideration. (shrink)

A close reading of Peirce’s pragmatic maxim shows a correlation between meaning and purpose. If the meaning of a concept, proposition or hypothesis is clarified by formulating its practical effects, those also can be articulated as practical maxims. To the extent that the hypotheses or propositions upon which they are based are true, practical maxims recommend reliable courses of action. This can be translated into a broader claim of an integral relation between semiosis and goal-directed or teleological systems. Any goal-directed (...) system, to be propagating, must be capable of coordinating the information in its internal or endergonic processes with exergonic information found in its environment. Signs are critical links between these two sources of information and must also serve as steering mechanisms for that system as well. If signs detected or represented information in the environments without using that information to steer the system, it would have no practical effect on the system; conversely, if a system could steer itself, but had no representation of exergonic information, it would fail to be propagating. Obviously, to get food, it must not only find it, but must also use that information to direct its behavior in a manner that makes use of that food. Using concepts found in complex systems and modern information theory, it is argued that this analysis requires a distinction between information and meaning. The result of this investigation is the claim that meaning can be understood as the propagating work of information. The remainder of the paper follows some of the ramification of this analysis for Peirce’s semiotic theory. (shrink)

The investigation into logical form and structure of natural sciences and mathematics covers a significant part of contemporary philosophy. In contrast to this, the metatheory of normative theories is a slowly developing research area in spite of its great predecessors, such as Aristotle, who discovered the sui generis character of practical logic, or Hume, who posed the “is-ought” problem. The intrinsic reason for this situation lies in the complex nature of practical logic. The metatheory of normative educational philosophy and theory (...) inherits all the difficulties inherent in the general metatheory but has also significantly contributed to its advancement. In particular, the discussion on its mixed normative-descriptive character and complex composition has remained an important part of research in educational philosophy and theory. The two points seem to be indisputable. First, the content of educational philosophy and theory is a complex one, connecting different disciplines. Second, these disciplines are integrated within the logical form of practical inference or means-end reasoning. On the other hand, the character of consequence relation in this field, although generally recognized as specific, represents an unresolved prob- lem, a solution of which requires a sophisticated logical theory and promises to influence the self- understanding of educational philosophy and theory. (shrink)

Nyerere’s philosophy of education is one of the most influential and widely studied theories of education. Policy-makers have continued to draw from it for policy re-engineering. In this paper, the Nigerian educational system is examined in the light of the philosophy. This approach is predicated on the informed belief that there are social and historical commonalities between Nigeria and the target-society of Nyerere’s philosophy. To this end, it argues that the philosophy holds some important lessons for Nigeria’s (...) class='Hi'>education. For this reason, there is need to inject some doses of its principles into the body polity of Nigeria’s education. The article identifies three areas – school financing, curricula development and entrepreneurial education – where the principles of the philosophy can be practically invaluable for Nigeria. In the final analysis, the paper identifies the linkage between national philosophy of education and national developmental ideology; and argues that a national philosophy of education of any country must be embedded in the national development ideology of that country of which the country’s philosophy of education must drive. (shrink)

Necessity is a touchstone issue in the thought of Charles Peirce, not least because his pragmatist account of meaning relies upon modal terms. We here offer an overview of Peirce’s highly original and multi-faceted take on the matter. We begin by considering how a self-avowed pragmatist and fallibilist can even talk about necessary truth. We then outline the source of Peirce’s theory of representation in his three categories of Firstness, Secondness and Thirdness, (monadic, dyadic and triadic relations). These have modal (...) purport insofar as the first category corresponds to possibility, the second to mechanical necessity and the third to a kind of semantic or intentional necessity. We then turn to Peirce’s explicit modal epistemology and show how it began as information-relative, with different modalities (e.g. logical, physical, practical) distinguished in terms of respective ‘designated states of information’, and shifted later in his life towards a more robust realism founded in direct perception of ideas in their relations. We then turn to Peirce’s formal logic, focusing on his diagrammatic system of Existential Graphs where he did his most serious logical research. Finally we discuss Peirce’s modal metaphysics and its implications for determinism and realism about universals. (shrink)

A SECOND COMPLETELY REVISED EDITION OF THIS TEXTBOOK ON INTERDISCIPLINARY RESEARCH WAS PUBLISHED WITH AMSTERDAM UNIVERSITY PRESS IN 2022. Check out that version here and a PDF of its ToC and Introduction, as this first edition (AUP 2016) is no longer available. [This book (128 pp.) serves as an introduction and manual to guide students through the interdisciplinary research process. We are becoming increasingly aware that, as a result of technological developments and globalisation, problems are becoming so complex that they (...) can only be solved through cooperation between multiple disciplines. Healthcare, climate change, food security, energy, financial markets and quality of life are just a few examples of issues that require scientists and academics to work in a crossdisciplinary way. As a result of these developments, an interdisciplinary approach is becoming increasingly popular in higher education and must be considered an absolute necessity. Young academics are being called on to step beyond the boundaries of traditional disciplines in order to contribute to addressing fundamental problems and solving challenges facing society. There is a need for people who are not afraid to ask critical questions, who can work together well and can look beyond the boundaries of their own field. This means students need to learn more about how they can integrate and apply knowledge, methods and skills from different fields. Interdisciplinary research projects and practical training courses offer students more than one perspective on the same subject. Comparing and contrasting, connecting, adding and adapting concepts, theories and methodologies from different disciplines ultimately results in new insights and better answers to complex problems.]. (shrink)

Cosmopolis A Review of Cosmopolitics -/- 2015/3-4 -/- Editorial Dominique de Courcelles & Paul Ghils -/- This issue addresses the general concept of “spirituality” as it appears in various cultural contexts and timeframes, through contrasting ideological views. Without necessarily going back to artistic and religious remains of primitive men, which unquestionably show pursuits beyond the biophysical dimension and illustrate practices seeking to unveil the hidden significance of life and death, the following papers deal with a number of interpretations covering a (...) wide field extending from belief to theory, from emotions to concepts, from the wisdom of personal experience to the most sophisticated doctrines. Spirit and spirituality are indeed many-faceted notions. They may refer to the intricate world of the interacting spirits which inhabit living beings in animistic traditions, without excluding a “grand force” linking human beings within a dynamic whole on which their very existence rely . They also bear upon more atomistic and either/or approaches of Western philosophy, which have become embodied in Cartesian dualism against a monotheist background, to the point of freezing the essence of individuals and culminating in the extreme individualism that characterizes our contemporaries. However, this equally refers to the opposite conception of materialism, across times and cultures, from ancient India and Greece (Cārvāka, originally known as Lokāyata, or some Buddhist doctrines for the former, Democritus or Lucretius for the latter) to more contemporary materialistic schools, whether modern or postmodern. -/- The following papers look at the contrasting forms of the philosophy and spirit of the human factor set into a whole, with no artificial disjoint between the psychical and the physical levels, as Wittgenstein put it: “And how can a body have a soul?”. This approach is not unrelated to the notion of anthropocene examined in a recent issue of Cosmopolis, with provides another comprehensive framework open to a spiritual life emerging from the very environment that generated it. -/- *** The first section of this issue was edited by Dominique de Courcelles, director at the National French Research Centre (CNRS), whom we wish to thank for collecting relevant studies relating to the religious and political questions, with a view to focusing on the war of ideas inevitably waged behind images, concepts and perceptions, taking an asymmetrical approach. To the extent that they are mindful of global/local interactions and include representations, opinions and beliefs, such disciplines as philosophy, philology, history and social sciences can provide useful studies accounting for new practices in geopolitics and a fair diplomacy. -/- In her introduction, Dominique de Courcelles first poses the question of how the religious and political spheres interrelate, with their corresponding religious demands and humanistic values. She then suggests that the right question today may be breaking with the philosophy of human rights concerned with the defense of human beings against the hazards of arbitrary politics or the instrumental use of religion, in favour of a fair philosophy of humankind, a new humanism. This would consist in recognizing a common loyalty of all towards one interhuman, not only interstate community, to protect it from both the autonomy demanded by individuals and the instrumental use of minorities. -/- Considering the fact of diversity, so important today in terms of both politics and religion, Abdelhai Azarkan looks at the conditions under which tolerance could obtain the double status of right and duty. He revisits to two philosophers, John Locke and Voltaire, who thought about it from the historical reality of religious wars. The former made tolerance into a right, basing his analysis on the political-legal level, while the latter saw tolerance as a duty, from an analysis based on ethical-political criteria. -/- Mathieu Guidère examines what he calls semantic denominationalism, a term which implies religious attributes and identities, whichever national loyalties or personal belonging they may have at the same time. Since the early 2000s, thie phenomenon has expanded tremendously, compounded by the “war on terror” and the over media-oriented terrorist actions. Denominational expressions act as formal names for ordinary and high-profile players in domestic and foreign policies of democratic states. These systems reveal a receding secularization, while the powerful comeback of religious identities signals the failure of nation-states and the weakening of the humanist spirit. -/- Barbara De Poli retraces the history of a contemporary jihadism claiming its Islamic essence and asserting the truth of genuine coranic principles via the war on infidels, with a view to restoring the Caliphate. After defining the term jihad, she shows that even if this contemporary jiadism is spreading in the Muslim world, it radically departs from Islamic law and the received use of the term jihad, in so far as it is rooted in the early radical thinking of Islamic ideologues in the 20th century, starting with with Hassan al-Banna, the founder of the Muslim Brotherhood. This current has been fueled by by international conflicts since the outbreak of the war in Afghanistan, in which the so-called Western countries bear a major responsibility. -/- Abderrazak Sayadi starts from the Tunisian experience to ask the question of humanist values and democracy within the relationships between the religious and political spheres. As a historian of religion, he is brought to demystify certain islamic principles and to paying attention to the reform of law, seeing the separation of religion and politics as a precondition to a successful democratic gamble and the establishment of a renewed humanism. -/- Dominique de Courcelles reminds us that getting a better knowledge of narrations and words makes it possible to better understand how logical and rhetorical thinking works for those who wage an asymetriccal war, re-enchanting and mystifying the world to better take control. As soon as 1932, an exchange of letters between Einstein and Freud made it clear that, in order to free man from fatality and war, education understood as culture was fundamental. Such illustrations as the exécution of Oussama ben Laden and the Caliph’s speech in Mossoul show that a premiminary analysis of images and words is essential to a fair diplomacy conducted by people from civil society, whose culture and wisdom allow justice and force to speak together and better resist war. -/- Marcel Boisard thinks that on the day the guns fall silent, exhausted by war, we will not return to the state borders that have prevailed for a century as an outcome of the Sykes-Picot agreement of 1916. It is time to prepare the “day after”, which will be a huge challenge. To this end, a summit of Middle-East nations is urgently needed to globally decide the fate of those peoples. On the condition that we know who the enemy is and accept to name it, to understand the history of the countries, groups and alliances, and to question any false or self-interested sense of certainty. -/- *** In the second section, Paul Schafer provides the author’s experiences to explain how culture, from the artistic to the biological, has the power to to open the doors to spirituality, from the inner self to the global environment. He asks himself whether a relative permanence of spirituality can arise from the specific moments that characterize it. Laurent Ledoux synthesizes the conclusion of a symposium held on 22 January 2015 on the links between philosophy and management, on the basis of the spiritual dimension conceived as “natural” and the answers it may suggest to the issues that face the organizations in a “contemporaniversal” world. Jacques Rifflet makes that question in a secular perspective, based on the wellsprings of personal commitment before it can be caught by any religious creed or scientific theory. In this sense spirituality, in alliance with reason, both inspires human consciousness and illuminates its destiny. Sami Aldeeb asks himself whether Islam can be reconciled with human rights. Caught between the belief in an absolute and final Word descended from the sky, and evidence showing that any religion is the creation of a given culture and a society situated in time and space, the Makkan and … contexts et médinois call for differentiated, if not opposite answers and exegeses. Bernard Carmona provides the outline of a dialogical framework, which is known to be a feature of debates between the various philosophical schools of classical India, exemplified here by the transdisciplinary perspective of debates within a Buddhist context. *** The articles not focused on the previous topic include a study by Landry Signé on China’s strategy, competing with the United States to control African resources. The author deals with the specific case of China’s rapprochement with Southern Sudan since Sudan was broken up. In the last paper, Goran Fejić and Rada Iveković, return to the essential role that women should play, and comments upon the role of some international legal instruments related in particular to the elimination of all forms of discrimination. The perspective is transnational and transethnic and is based on secular criteria, as regards nation-building and more generally society-building. Considering the persistence of widespread violence, whether in times of armed conflict or in times of peace, the question remains whether it is possible to fully implement rights and justice instruments. (shrink)

Descartes was born in La Haye (now Descartes) in Touraine and educated at the Jesuit college of La Fleche` in Anjou. Descartes’modern reputation as a rationalistic armchair philosopher, whose mind–body dualism is the source of damaging divisions between psychology and the life sciences, is almost entirely undeserved. Some 90% of his surviving correspondence is on mathematics and scientific matters, from acoustics and hydrostatics to chemistry and the practical problems of constructing scientific instruments. Descartes was just as interested in the motions (...) of matter as in the supernatural soul, and he advised against spending too much time on metaphysical inquiries which neglect imagination and the senses. After meeting the Dutch engineer Isaac Beeckman in 1618, Descartes became committed to a systematically ‘mechanical’account of nature. This involved explaining all natural processes in terms of interactions between microscopic material bodies in motion. Descartes modelled his physics and cosmology on the behaviour of fluids, which also have a distinctive and central role in his physiology: the key processes for natural philosophical investigation are the circulation and mutual displacement of constrained bodies, rather than the isolated collisions of atoms in a void. Descartes settled in Holland in 1628, and commenced an ambitious programme of physiological research. In 1630 he was ‘studying chemistry and anatomy simultaneously’, and in late 1632 he was ‘dissecting the heads of various animals’, in order to ‘explain what imagination, memory, etc. consist in’. By late 1633 Descartes had almost completed L’homme, the Treatise on Man; but he abandoned plans to publish it along with a work on matter theory and optics which relied on Copernican cosmology, after he heard of the condemnation of Galileo. L’homme was published posthumously in 1662 (Latin) and 1664 (French); not until 1972 was it fully translated into English. L’homme draws on many (mostly unnamed) Renaissance medical writers, and covers, firstly, a range of traditional physiological topics, such as digestion and respiration.. (shrink)

The aim of this article is to address the problem of what is usually called “self-consciousness” by studying Charles S. Peirce’s semeiotic treatment of self-referential statements. Peirce believes that an adequate study of the mind requires “to reduce all mental action,” including “self-consciousness,” “to the formula of valid reasoning” (W 2:214, EP 1:30, 5:267, 1868) and its semeiotic nature. While Peirce makes frequent use of the notion of “consciousness,” he is at the same time distant from the understanding of the (...) “conscious mind” that Descartes invented and made canonical (e.g., W 1:491, 1866), and which from the modern epoch stretches out to the contemporary discussion on, as David Chalmers put it, the “hard problem” of the mind. In what follows, I argue that Peirce puts forth a powerful theory of self-consciousness based on his semeiotic understanding of self-reference and indexicality. To the question, “How can we elucidate the phenomenon of self-consciousness?”, we should answer, with Peirce, “What we call self-consciousness corresponds to the practice of narratives and descriptions ultimately based on indexical self-referential statements, which are in turn rooted in very specific dimensions of human experience.” It is also important to underscore from the outset that the problem of indexical self-reference cannot be separated from Peirce’s concept of experience, which is one of the most interesting insights of Peirce’s philosophy and classical American pragmatism. In particular, it will be essential to see what are the experiential-perceptual conditions under which indexical self-referential statements can work as such. (shrink)

Place-based education is founded on the idea that the student’s local community is one of their primary learning resources. Place-based education’s underlying educational principle is that students need to first have an experiential understanding of the history, culture, and ecology of the environment in which they are situated before tackling broader national and global issues. Such attempts are a step in the right direction in dealing with controversial issues in a democracy by providing resources for synthesising curriculum though (...) theory (curriculum content, including traditional subjects) and practice (practical learning as experiential education). Nevertheless, many place-based accounts discount Indigenous conceptions of place, which are integral to Indigenous ways of knowing, being and doing, especially in relation to the ontological relationship to Land and Country. Indigenous philosophy has the potential to inform what place-based education means by students developing a ‘sense of place’ when engaging with local communities as their ‘own’ place. In this article we re-imagine the community of inquiry as a place-responsive pedagogy by learning from Indigenous philosophy, and recentring Indigenous notions of place in experiential learning. In addition to exploring the pedagogical potential of a place-responsive account of the community of inquiry, we look to the implications for teacher preparation. (shrink)

How do we ensure agents formulating legal statements are not systematically in error? In this paper I assume that the success of legal statements follows from the fact that propositions expressed by legal statements adequately represent legal reality. I argue that the content of legal statements hinges implicetly on the sources of law and methods in which we attribute meaning to these sources. In this regard, I identify the primary obstacle to the success of actions (...) that consist of asserting legal statements as a systematic failure to refer to the proper method of interpretation by the agents formulating these statements. The paper explores several solutions to this challenge, focusing on the solution explaining the success in referring to the proper method of interpretation in virtue of meta-interpretive considerations. Subsequently, the paper discusses a challenge to this solution following from the claim that there are many different theories of meta-interpretation, and there is no fact (neither natural, nor conventional or intentional, anchored in the collective consciousness of society), determining that one of them is more accurate than the other ones. Given all the intricacies, this study focuses on exploring a coherent framework for understanding how different interpretive methods and meta-interpretative theories can be evaluated and applied in legal practice. It seeks to articulate a model that accommodates the diversity of interpretations while striving for a reasoned consensus on how legal texts should be understood and applied. (shrink)

It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the (...) rule of law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, the metaphysics/metasemantics of (legal) content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law. (shrink)

This article addresses a few moments in the evolution of human security law in Iraq, focusing in particular on the Coalition Provisional Authority, the new Iraqi Constitution, Iraqi High Tribunal (successor to the Iraqi Special Tribunal), and the International Criminal Court. It synthesizes the results of some existing research on ongoing impunity for certain crimes against political candidates, journalists, anti-corruption activists, and ethnic and religious minorities, a situation which may have tainted Iraq’s transition to a more democratic republic, while aggravating (...) other conflicts, such as those in Syria. In theory, the institutions of human and national security can help reconcile peoples whose tenuous unity had been shattered in wartime. The sometimes competing priorities and policies of Iraqi politicians, civil society groups, and judges resulted in swift justice for Iraqi officials responsible for mass killings involving Shi’a Arab, Kurdish, and other victims, but a lack of justice for other segments of the population. The emphasis of some claims of injury over others may have "reenchanted" some sectors of Iraqi society with the state and its institutions, while alienating others and contributing to ruptures in the social fabric. The Coalition Provisional Authority, Iraqi leaders, and international community ensured that the high-profile proceedings against former regime officials would not be accompanied or followed by others that some Iraqis might perceive as being as pressing as those of the Iraqi High Tribunal, relating to the impact of sanctions and aerial bombardment, the legality of Iraq's occupation, torture, etc. (shrink)

TWENTIETH-CENTURY ETHICS. AFTER NIETZSCHE -/- Preface This book tells the story of twentieth-century ethics or, in more detail, it reconstructs the history of a discussion on the foundations of ethics which had a start with Nietzsche and Sidgwick, the leading proponents of late-nineteenth-century moral scepticism. During the first half of the century, the prevailing trends tended to exclude the possibility of normative ethics. On the Continent, the trend was to transform ethics into a philosophy of existence whose self-appointed task was (...) that of describing the human condition as consisting of choices, as unavoidable as arbitrary, without any attempt at providing criteria for making such choices. In the Anglo-Saxon countries, the heir of ethics was a philosophy of morality, that is, an analysis of the language of morality that intended to clarify valuations without trying to justify them. 1958 was the year of the normative turn that led to the Rehabilitation of practical philosophy, a turn followed by decades of controversies between distinct kinds of normative ethics: utilitarian, Kantian, virtue ethics. While the controversy was raging, a quiet revolution took place, that of applied ethics which surprisingly dissolved the controversy's very subject matter by providing methods for making convergence possible on intermediate principles even when no agreement was available about first principles. The normative turn and the revolution of applied ethics have led us, at the turn of the century, to a goal that was quite far from the starting point. Instead of scepticism and relativism that was the fashion at the beginning of the century, at the beginning of the third millennium impartial and universal moral arguments seem to hold the spot being supported, if not by a final rational foundation, at least by reasonableness, the most precious legacy of the Enlightenment. -/- ● TABLE OF CONTENTS -/- ● I Anglo-Saxon philosophy: naturalism 1. Dewey beyond evolutionism and utilitarianism 2. Dewey and anti-essentialist moral epistemology 3. Dewey and naturalist moral ontology 4. Dewey and normative ethics of conduct and function 5. Perry and semantic naturalism -/- ● II Anglo-Saxon philosophy: ideal utilitarianism and neo-intuitionism 1. Moore's critique of utilitarian empiricism 2. Moore on the naturalistic fallacy 3. Moore on the nature of intrinsic value 4. Moore on ideal utilitarianism 5. Prichard on the priority of the right over the good 6. Ross's coherentist moral epistemology 7. Ross's moral ontology: realism, pluralism, and non-naturalism 8. Ross's normative ethics of prima facie duties -/- The chapter reconstructs the background of ideas, concerns and intentions out of which Moore's early essays, the preliminary version, and then the final version of Principia Ethica originated. It stresses the role of religious concerns, as well as that of the Idealist legacy. It argues that PE is more a patchwork of somewhat diverging contributions than a unitary work, not to say the paradigm of a new school in Ethics. -/- ●III Anglo-Saxon philosophy: non-cognitivism 1. The Scandinavian School, the Vienna circle and proto-emotivism 2. Wittgenstein and the ineffability of ethics 3. Russell's and Ayer's radical emotivism 4. Stevenson and moderate emotivism 5. Stevenson and the pragmatics of moral language 6. Stevenson and the methods for solving ethical disagreement 7. Hare and prescriptivism The chapter reconstructs first the discussion after Moore. The naturalistic-fallacy argument was widely accepted but twisted to prove instead that the intuitive character of the definition of 'good', its non-cognitive meaning, in a first phase identified with 'emotive' meaning. Alfred Julius Ayer is indicated as a typical proponent of such non-cognitivist meta-ethics. More detailed discussion is dedicated to Bertrand Russell's ethics, a more nuanced and sophisticated doctrine, arguing that non-cognitivism does not condemn morality to arbitrariness and that the project of rational normative ethics is still possible, heading finally to the justification of a kind of non-hedonist utilitarianism. Stevenson's theory, another moderate version of emotivism is discussed at some length, showing how the author comes close to the discovery of the role of a pragmatic dimension of language as a basis for ethical argument. A section reconstructs the discussion from the Forties about Hume's law, mentioning Karl Popper's argument and Richard Hare's early non-cognitivist but non-emotivist doctrine named prescriptivism. -/- ●IV Anglo-Saxon philosophy: critics of non-cognitivism 1. Neo-naturalism and its objections to the naturalistic fallacy argument 2. Objections to Hume's law 3. Clarence Lewis and the pragmatic contradiction 4. Toulmin and the good reasons approach 5. Baier and moral reasons 5. Baier, social moralities and the absolute morality 6. Baier and the moral point of view 7. Baier and the contents of absolute ethics -/- ● V Continental philosophy: the philosophy of values 1. Max Weber and the polytheism of values 2. Phenomenology against psychologism and rationalism 3. Reinach and the theory of social acts 4. Scheler and the material ethics of values 5. Hartmann and the ontology of values 6. Plessner, Gehlen and the Philosophische Anthropologie -/- The chapter illustrates first the idea of phenomenology and the Husserl's project of a phenomenological ethic as illustrated in his 1908-1914 lectures. The key idea is dismissing psychology and trying to ground a new science of the apriori of action, within which a more restricted field of inquiry will be the science of right actions. Then the chapter illustrates the criticism of modern moral philosophy conducted in the 1920 lectures, where the main target is naturalism, understood in the Kantian meaning of primacy of common sense. The third point illustrate is Adolph Reinach's theory of social acts as a key the grounding of norms, a view that sketches the ideas 'discovered' later by Clarence I. Lewis, John Searle, Karl-Otto Apel and Jürgen Habermas. A final section discusses Nicolai Hartman, who always refused to define himself a phenomenologist and yet developed a more articulated and detailed theory of 'values' – with surprising affinities with George E. Moore - than philosophers such as Max Scheler, who claimed to be Husserl's legitimate heirs. -/- ● VI Continental philosophy: the critics of the philosophy of values 1. Freud, the Superego and Civilization 2. Heidegger on original ethos against ethics 3. Sartre and de Beauvoir on authenticity and ambiguity 4. Adorno and Horkheimer on emancipation and immoralism -/- ●VII Post-liberal theologians and religious thinkers 1. Barth on the autonomy of faith from ethics 2. Developments of Reformed moral theology after Barth 3. Bonhoeffer on the concrete divine command and ethics of penultimate realities 4. Developments of Reformed and Catholic moral theology after world war II 5. Baeck and the transformation of liberal Judaism 6. Rosenzweig against liberal Judaism 7. Buber and religion as the vital lymph of morality 8. Heschel and Judaism as a science of actions -/- The chapter examines the main protagonists of Christian theology and Jewish religious thinking in the twentieth century. It stresses how the main dilemmas of contemporary philosophical ethics lie at the root of the various path of inquiry taken by these thinkers. -/- ● VIII Normative ethics: neo-Utilitarianism 1. The discussion on act and rule utilitarianism 2. Hare on two-tiered preference utilitarianism 3. Harsanyi, Gauthier and rational choice ethics 4. Parfit, utilitarianism and the idea of a person 5. Brandt and indirect conscience utilitarianism -/- The chapter addresses the issue of the complex process of self-transformation Utilitarianism underwent after Sidgwick's and Moore's fatal criticism and the unexpected Phoenix-like process of rebirth of a doctrine refuted. Two examples give the reader a glimpse at this uproarious process. The first is Roy Harrod Wittgensteinian transformation of utilitarianism in pure normative ethics depurated from hedonism as well as from whatsoever theory of the good. This transformation results in preference utilitarianism combined with a 'Kantian' version of rule utilitarianism. The second is Richard Hare's two-level preference utilitarianism, where act utilitarianism plays the function of the eventual rational justification of moral judgments and rule-utilitarianism that of an action-guiding practical device. -/- ● IX Normative ethics: neo-Aristotelianism and virtue ethics 1. Hannah Arendt, action and judgement 2. Hans-Georg Gadamer and phronesis 3. Alasdair MacIntyre on practices, virtues, and traditions 5. Stuart Hampshire on deliberation 6. Bernard Williams and moral complexity 7. Feminist ethics -/- Sect 1 reconstructs the post-war rediscovery of ethics by many German thinkers and its culmination in the Sixties in the movement named 'Rehabilitation of practical philosophy' is described. Heidegger's most brilliant disciples were the promoters of this Rehabilitation. Hans-Georg Gadamer is a paradigmatic example. His reading of Aristotle's lesson I reconstructed, starting with Heidegger's lesson but then subtly subverting its outcome thanks to the recovery of the significant role of the notion of phronesis. Sect 3 discusses the three theses defended by Anscombe in 'Modern Moral Philosophy'. It argues that: a) her answer to the question "why should I be moral?" requires a solution of the problem of theodicy, and ignores any attempts to save the moral point of view without recourse to divine retribution; b) her notion of divine law is an odd one more neo-Augustinian than Biblical or Scholastic; c) her image of Kantian ethics and intuitionism is the impoverished image manufactured by consequentialist opponents for polemical purposes and that she seems strangely accept it; d) the difficulty of identifying the "relevant descriptions" of acts is not an argument in favour of an ethics of virtue and against consequentialism or Kantian ethics, and indeed the role of judgment in the latter is a response to the difficulties raised by the case of judgment concerning future action. The chapter gives a short look at further developments in the neo-naturalist current trough a reconstruction of Philippa Foot's and Peter Geach's critiques to the naturalist-fallacy argument and Alasdair MacIntyre's grand reconstruction of the origins and allegedly inevitable failure of the Enlightenment project of an autonomous ethic. -/- ● X Normative ethics: Kantian and rights-based ethics 1. Dialogical constructivism 2. Apel, Habermas and discourse ethics 3. Gewirth and rights-based ethics 4. Nagel on agent-relative reasons 5. Donagan and persons as ends in themselves Parallel to the neo-Aristotelian trend, there was in the Rehabilitation of practical philosophy a Kantian current. This current started with the discovery of the pragmatic dimension of language carried out by Charles Peirce and the Oxford linguistic philosophy. On this basis, Karl-Otto Apel singled out as the decisive proponent of the linguistic and Kantian turn in German-speaking ethics, worked out the performative-contradiction argument while claiming that this was able to provide a new rational and universal basis for normative ethics. The chapter offers an examination of his argument in some detail, followed by a more cursory reconstruction of Jürgen Habermas's elaboration on Apel's theory. -/- ● XI The applied ethics renaissance 1. Elisabeth Anscombe on the atom bomb 2. From medical ethics to bioethics 3. Rawls and public ethics 3. Nozick, Dworkin and further developments of public ethics 5. Sen and the revival of economic ethics -/- The chapter presents the revolution of applied ethics while stressing its methodological novelty, exemplified primarily by Beauchamp and Childress principles approach and then by Jonsen and Toulmin's new casuistry. The chapter argues that Rawls's distinction between a "political" and a "metaphysical" approach to the theory of justice, one central part of ethical theory, is a formulation of the same basic idea at the root of both the principles approach and the new casuistry, both discussed in the following chapter. The idea is that it is possible to reach an agreement concerning positive moral judgments even though the discussion is still open – and in Rawls' view never will be close – on the essential criteria for judgment. -/- ● XII Fin-de-siècle metaethics 1. Deontic logics 2. Anti-realism 3. External realism 4. Internal realism 5. Kantian constructivism -/- The chapter illustrates the fresh start of meta-ethical discussion in the Eighties and Nineties and the resulting new alignments: metaphysical naturalism, internal realism, anti-realism, and constructivism. (shrink)

School boosters are tax-exempt organizations that engage in fundraising efforts to provide public schools with supplementary resources. This paper argues that prevailing forms of school boosting are defeasibly unjust. Section 1 shows that inequalities in public education funding in the United States violate John Rawls’s two principles of domestic justice. Section 2 argues that prevailing forms of school boosting exacerbate and plausibly perpetuate these injustices. Section 3 then contends that boosting thereby defeasibly violates Rawlsian principles of nonideal theory for (...) rectifying injustice. Thus, boosting should be presumptively either made illegal or substantially reformed. Finally, Section 4 responds to potential objections. (shrink)

This paper examines East Asian literati’s sisŏhwa (poetry, calligraphy and painting) mainly done by ink and wash painting and focuses on their painting theories related to integrative learning and artistic practice. The literati expressed their philosophical ideas using visual and textual language according to Illyul theory based on the Sŏhwa Same Origin theory. They delivered their intentions through symbolic meaning of the visible in terms of the Uisang theory, and put emphasis on ki in their pictorial space using the Kiunsaengdong (...) theory in a monistic universe. The literati’s process of sisŏhwa practice unifies the mind/spirit with body/material and connects humans with nature/the universe. It also enables the creation of a representation of nature according to Shitao’s Oneness of Brushstroke theory. Ultimately it trained them for aesthetic harmony and spiritual enlightenment. As a result, Sisŏhwa Contemplative Practice theory was formed. This paper suggests that this theory should be reconstructed as the basic discipline in education. (shrink)

This quantitative study explores the acceptability of Online Learning Action Cell (LAC) practice as a school-based professional development strategy for Tagumpay National High School (TNHS) teachers. The research was motivated by the Department of Education (DepEd) Order No. 35 s. 2016 which prompts public schools to comply with the implementation of LAC sessions because it has a positive impact on teachers’ beliefs and practices resulting in education reforms for learners’ benefit. However, in compliance with DepEd’s policy on maximizing (...) Time-On-Task (DepEd Order No. 9 s. 2005) and the teacher’s conflict of schedule and other ancillary and coordination functions, absences or non-participation in classroom LAC was noted. The viability of offering Online LAC sessions using appropriate media and technologies to provide more options and flexibility for the study is suggested and tested utilizing a conceptual framework drawn from DepEd Order No. 35 s. 2016, Simonson’s Equivalency Theory and Anderson’s Community of Inquiry (COI). A descriptive survey method was used in this study with purposive sampling identifying ten Technology and Livelihood Education (TLE) teachers to pilot the Online LAC based on the memorandum issued by the school head. The subjects went through a week of experience in a LAC session using Facebook (FB) as Learning Management System (LMS) while a researcher-designed survey tool in the form of a Likert-type scale questionnaire was administered via Google forms before and after the online session to measure teacher’s acceptability of Online LAC Session practice. In the analysis, a descriptive statistic shows that pre-post survey results on Online LAC session planning is from ‘moderately acceptable’ to ‘very highly acceptable’; implementation is from ‘acceptable’ to ‘very highly acceptable’, and evaluation is from ‘moderately acceptable’ to ‘very highly acceptable’. TNHS teachers' acceptability of Online LAC session practice increases after their participation in a fully-online learning environment. Limitations, recommendations, future research directions, and conclusions are also included in the study. -/- . (shrink)

Even if one sees the law as “a self-contained system of legal reasoning” from which we deduce “neutral,” non-political conclusions from “general principles and analogies among cases and doctrines” (including formalist claims that judges simply call “balls and strikes” like umpires in a baseball game), one should still consider certain characteristics of the party making such deductions or calling such “balls and strikes.” [Relevant citations to quoted language are in the Article.] If such decision maker has questionable motivations, lacks (...) proper perspective, does not grasp the flexibility in the concepts in play, does not grasp the restraints on concepts in play, does not follow the proper processes involved, and lacks the detail, courage, and tenacity needed to reach the proper “deduction” or “call,” on the face of things the formalist, too, should have reason to re-examine any “deduction” or “call” by such party. Thus, even the formalist should not deny the critical role of virtue when examining legal analysis, a role belying the notion of law as a "self-contained system of legal reasoning." -/- This Article thus explores basic freedoms and restraints applicable to legal analysis and the role that virtue plays in balancing such freedoms and restraints. Such exploration covers: (i) the origin, nature, and purpose of concepts and categories used in legal analysis; (ii) the experiential nature of the meaning of such concepts and categories used in legal analysis; (iii) the freedoms and restraints applicable to such concepts and categories as a result of either experience or of the concepts or categories themselves; (iv) how workable notions of virtue rightly balance such freedoms and restraints in legal analysis; (v) the distinction between such virtue and skill; (vi) reconceiving the analytically virtuous mean as a proper balance between such applicable freedoms and restraints; and (vii) defining and surveying the particular virtues that lead us to such proper balance and thus to good legal analysis. My hope is that lawyers and law schools in their curricula will follow such explorations as well in a quest to better understand legal analysis and how to teach and perform it well. (shrink)

According to a common conception of legal proof, satisfying a legal burden requires establishing a claim to a numerical threshold. Beyond reasonable doubt, for example, is often glossed as 90% or 95% likelihood given the evidence. Preponderance of evidence is interpreted as meaning at least 50% likelihood given the evidence. In light of problems with the common conception, I propose a new ‘relevant alternatives’ framework for legal standards of proof. Relevant alternative accounts of knowledge state that a (...) person knows a proposition when their evidence rules out all relevant error possibilities. I adapt this framework to model three legal standards of proof—the preponderance of evidence, clear and convincing evidence, and beyond reasonable doubt standards. I describe virtues of this framework. I argue that, by eschewing numerical thresholds, the relevant alternatives framework avoids problems inherent to rival models. I conclude by articulating aspects of legal normativity and practice illuminated by the relevant alternatives framework. (shrink)

How can we theoretically and philosophically study the problem of values and authority in the context of education? The chapter uses the framework of action theoretical semiotics developed mainly on the conceptual structures of Greimassian semiotic theory. This detailed and elaborated theory of human discourse (utilized usually in terms of literary and “cultural” texts) will be expanded by biosemiotic and Peircean points of view to fit in the special problem area of education as transformation or extension from the (...) biosemiotic and zoosemiotic sphere to anthroposemiotic sphere: from nature to culture. The main theoretical starting point for action theoretical semiotics is the concept of meaning which is defined as relationship of an object to the action of the subject. The chapter will connect the action theoretical semiotics to the conception of Bildung and modern idea of the normativity of the rational inference by, e.g., contemporary philosopher of semantics Robert Brandom, to consider the educational implications of this semiotic view. (shrink)

This Article explores the interpretation and construction of executive orders using as examples President Trump’s two executive orders captioned “Protecting the Nation From Foreign Terrorist Entry Into the United States” (the “Two Executive Orders”). President Trump issued the Two Executive Orders in the context of (among other things) Candidate Trump’s statements such as: “Islam hates us,” and “[W]e can’t allow people coming into this country who have this hatred.” President Trump subsequently provided further context including his tweet about the second (...) of his Two Executive Orders: “People, the lawyers and the courts can call [the second of the Two Executive Orders] whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” Although President Trump replaced the first of the Two Executive Orders with the second one and although the Supreme Court by orders dated October 10, 2017 and October 24, 2017, vacated and remanded litigation involving the second order on grounds of mootness, the Two Executive Orders remain highly instructive for those who would understand the interpretation and construction of executive orders. This article therefore examines in detail the original speaker's (i.e., President Trump's) intended meaning and effect of the Two Executive Orders. It performs such examination using insights from the semiotic subfield of pragmatics, a semiotic subfield which explores how real-world people actually use, interpret, and construe language in various real-world contexts (including contexts where the issuer of the Two Executive Orders himself has claimed that “Islam hates us” and has tweeted “TRAVEL BAN!”). Using such insights of pragmatics, this Article also explores why reasonable judges thoroughly versed in legal theory, legal practice, and pragmatics should conclude that President Trump unlawfully targeted Muslims in the Two Executive Orders. This Article, among other things, also questions the sensibility of such notions as “facial legitimacy” to the extent such notions suggest text has meaning apart from context. Keywords: executive orders, speaker meaning, interpretation, construction, semiotics, pragmatics, originalism, speech acts, context, facial legitimacy, Constitutionality, First Amendment,Trump v. Int’l Refugee Assistance Project, Scalia, immigration, semantics, original meaning, travel ban, Trump, textualism. (shrink)

In this paper I draw apart two different contexts of Freirean pedagogical practice that I label interactional and institutional. The interactional refers to the immediate learning environment with relation to the interaction between the students and the teacher. In contrast, the institutional refers to how the institutions of education are managed, constructed, and organised and how they relate to the individuals those institutions are composed of. I begin by presenting a brief overview of Freire’s argument in favour of a (...) revolutionary pedagogy. I then highlight how this project is represented at both interactional and institutional levels with a particular focus upon the practice of the revolutionary leaders and their role in the development of the humanisation of the oppressed. In presenting the interactional and institutional elements of Freire’s pedagogy separately the tension between the individual and the state is made plain and the limitations of his politico-educational project are drawn out. I argue that due to an inconsistent application of the relationship between means and ends in Freire’s politico-educational project an incoherence between the interactional and institutional levels of education is highlighted. In responding to this limitation of Freire’s politico-educational project with a thoroughly interconnected relationship of means and ends I show that there remains a necessary conflict between the interests of the individual and the state. As a result of this a door is opened for the development of an argument in favour of the disestablishment of education and state from a Freirean perspective. (shrink)

Abstract: Law professors offer to teach students something called “thinking like a lawyer.” They suggest thereby that legal thought is in some way unique. If it is, through what means is it acquired? By reading the law. And so reading the law must be a different experience than reading other things, as is implied by the admonition that thinking like a lawyer is somehow different than other thinking. In most law school education, reading is practiced as a means (...) to an end—to produce a description of the substance or procedure of a particular area of the law. Too often, it is only in legal research and writing courses that reading is explicitly addressed. Even there, it is most often analyzed only in its role as a counterpart to the goal of writing; of producing tangible text. But although reading is not studied on its own terms, it makes up most of the practice of learning the law and much of the practice of law. When we read in the utilitarian senses of describing substance or procedure or in order to learn to write, we omit the powerful, tacit learning that occurs with this reading—the learning of the legal worldview. This remains true in the practice of law as well, where reading maintains the acquired worldview. This article explores how that worldview seeps silently into the lives of lawyers while they are busy learning to describe and inscribe the law. While social science has much to tell us about the process of reading, we need to turn to the arts to see the worldview that is learned and perpetuated when one learns to read the law. (shrink)

This anthology focuses on “practical” forms and expressions of knowledge, like thinking through artistic media or by crafting things out of materials. The ten chapters follow and review various tracks in conceptions of contemporary knowledge, exploring human knowledge and experience from the perspective of human activities or practices, professional, artistic, domestic, or whatever. A guiding idea is that human knowledge seldom, perhaps never, fits into the traditional dualism between thinking and doing. -/- The chapters are written by philosophers and musicians (...) – some with a double experience as artists and theoreticians. The themes are philosophical, but above all, they touch on questions that are essential for how we understand ourselves as thinking and playing bodies, indeed as parts of nature. The book does not propose one single “theory of knowledge” but steps towards a more diverse and open attitude to the meaning of knowledge. -/- We hope that the texts will be of interest and useful in both disciplinebased and professional education: in philosophy, art schools, tea cher education, and in other programmes where tacit and practical knowledge are essential for the (future) practitioners. It is possible to independently read, and profit from, most of the chapters. (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)

This paper compares current ways of modeling the inferential structure of practical reasoning arguments, and proposes a new approach in which it is regarded in a modular way. Practical reasoning is not simply seen as reasoning from a goal and a means to an action using the basic argumentation scheme. Instead, it is conceived as a complex structure of classificatory, evaluative, and practical inferences, which is formalized as a cluster of three types of distinct and interlocked argumentation schemes. Using two (...) real examples, we show how applying the three types of schemes to a cluster of practical argumentation allows an argument analyst to reconstruct the tacit premises presupposed and evaluate the argumentative reasoning steps involved. This approach will be shown to overcome the limitations of the existing models of practical reasoning arguments within the BDI and commitment theoretical frameworks, providing a useful tool for discourse analysis and other disciplines. In particular, applying this method brings to light the crucial role of classification in practical argumentation, showing how the ordering of values and preferences is only one of the possible areas of deep disagreement. (shrink)

The question of how the university can relate to the world is centuries old. The poles of the debate can be characterized by the plea for an increasing instrumentalization of the university as a producer and provider of useful knowledge on the one hand (cf. the knowledge factory), and the defense of the university as an autonomous space for free inquiry and the pursuit of knowledge for knowledge’s sake on the other hand (cf. the ivory tower). Our current global predicament, (...) however, forces us to rethink the relation between university and world. Indeed, an easy nstrumentalization of the university for the purposes of society is no longer possible in troubled times when the future of society itself seems to be at stake. Nevertheless, urgent societal concerns do need to be addressed by the university. Hence, the disinterested position seems a highly irresponsible option. The aim of this dissertation is to reconsider the relation between the university and the world from an educational perspective by addressing the question “How to situate study in the relation between university and society?” The dissertation consists of three parts. In Part One, the existing literature on the relation between university and society will be discussed. The first chapter discerns two main approaches to this issue, namely the transcendental-philosophical approach (cf. the idea of the university) and the critical-sociological approach (cf. academic capitalism) that conceive of the university, respectively, as an idea and as an organization. By means of an excursus on the emergence of the university in the Middle Ages, the case is made for an ecological approach to the university. In the second chapter, the work of two authors who have recently adopted such an ecological approach is briefly presented. Whereas Ronald Barnett’s theory of the ecological university is situated more in the transcendental-philosophical tradition, Susan Wright’s investigations of the university in the knowledge ecology can be placed in the critical-sociological tradition. Both conceptions, however, are hinged on an institutional understanding of the university. In line with recent developments in social theory, namely the focus on practices, it is proposed to work towards an ecology of study practices. Part Two presents Isabelle Stengers’ idea of the ecology of practices. The third chapter elucidates Stengers’ work on scientific practices by first situating it within the so-called Science Wars, which provided the impetus to elaborate a theoretical framework for a civilized dialogue between scientists and the broader public. The basic tenets and concepts of her approach, such as the understanding of practice as a set of requirements and obligations, are presented, explained, and discussed. In the fourth chapter, the focus shifts from scientific practices to study practices. Assisted by Stengers’ writings on Whitehead’s speculative philosophy, this chapter aims to flesh out Whitehead’s description of the university as a ‘home of adventures’ in order to come to an educational understanding of the study practices of the university. A conceptual inquiry into how study practices activate certain worldly problems and turn them into matters of study is presented. Part Three develops the conceptual work on study practices further in relation to the activities of the Palestinian experimental university Campus in Camps. Chapter Five presents the work of Campus in Camps and explains how it relates to the theoretical discussion offered in the second part. On the basis of Stengers’ conception of practice, which discerns requirements and obligations as vital ingredients, this chapter argues that life in exile is what drives the study practices of Campus in Camps, and hence, that it is the issue of life in exile that participants are obligated to when they study. Whereas Chapter Five is focused on what is being studied in Campus in Camps, Chapter Six inquires in to the specific requirements its activities need to fulfill in order to be study practices; in other words, how the participants study. Four requirements are discerned that, taken together, seem indispensable to understand the study practices of Campus in Camps; namely, storytelling, comparing, mapmaking, and using. The concluding chapter returns to the research question and again takes up the main ideas developed in the dissertation, such as the adventure of study and the cohabitation of scientific and study practices in the university. The last two sections of the conclusion deal with two remaining issues of a more practical nature; namely, how to relate to institutionalization when working from a practice-theoretical point of view, and lastly the question of what can be done. In all, and returning to the initial problem, the dissertation asks what it means to conceive of the university as situated by and engaged with worldly questions. (shrink)

Language is the main resource for meaningful action, including the very formation of selves and psychosocial identities, shaped by practical norms, beliefs, and values. Thus, language education constitutes one of the most powerful means for both social reproduction and social production and ideological maintenance and utopian innovation. In this paper, we attempt to emphasise the invaluable psychosocial, political, economic, and cultural function of language education in order to propose a critical view of the current transition from the monolingual (...) to a multilingual paradigm. We maintain that multilingual approaches tend to serve the neoliberal framework and reproduce its systemic inequalities. Therefore, we argue in favour of emancipatory multilingual practices that could embody a translingual pedagogy capable of promoting the development of capabilities, the recognition of otherness, and the cultivation of diversity. Rooted in critical theory, namely in Foucault’s notion of subjectification and Freire’s view of conscientisation, an emancipatory translingual pedagogy would enable and empower every learner to synthesise a contextually creative field of new semantic and pragmatic relationships. Critical language education would enhance the ethos of biophilia that fosters what we term the poetics of communality and selfhood, that is to say, the proactive commitment to expanding symbolic and existential novelty. (shrink)

In this paper Michael Vazquez and Dustin Webster consider the practice of deliberating about ethical case studies as a means to contribute to the professional development of educators. An ongoing debate is whether or not the study of ethical theory should be included in this practice. Vazquez and Webster argue that a popular strategy, known as the Phronetic Approach, is vulnerable to what they call “epistemic blinders” that arise in the absence of the scaffolding provided by theory. They then sketch (...) an alternative approach to case-based reasoning inspired by Barbara Herman's notion of middle theory. The middle theory approach naturally suggests a balanced method for using case studies in teacher professional development: expose educators to some theory, but only to the degree and at the level appropriate for the specific audience and in light of how frequent interactions with that audience will be. (shrink)