The debate between natural law and positivist law has been received much attention. Ronald Dworkin exposes the limitation of positivist law through the argument of hard cases. This argument is furthered strengthened when we apply the interpretation of Martin Luther King Jr and the voluntarist natural law tradition, and Lon Fuller’s ‘procedural view’ and the application of the ‘principles of legality’.

During the American Civil Rights Movement, Martin Luther King’s principal arguments reasoned from theological ethics, appealing to natural law, imago Dei, and agape love. Today in the United States, with the prevailing ideal of public reason, such arguments are unacceptable in the public square. In lieu of King’s theological arguments, are there philosophical principles or values adequate to sustain the cause of racial justice, establishing both a secure rational foundation for racial justice and providing sufficient (...) moral incentive for citizens to work self-sacrificially for this cause? I assess the prospects of the major philosophical alternatives, specifically utilitarianism, Kantian ethics, virtue ethics, contractarianism, and the anti-theory option. I conclude that each of these approaches fails to provide the necessary conceptual resources to sustain the cause for racial justice. This presents a disconcerting dilemma: either we readmit theological considerations into the public square or surrender hope for the achievement of lasting racial justice in the United States. (shrink)

The article examines the issue of a necessary connection between the phenomena of law and morality. According to legal positiv- ism, morality is not a criterion of the legitimacy for legal norms. The law can have any content including absolutely immoral (the so-called “separability thesis”). Law issues are not connected with discussing the moral merits of a possible judicial decision. They are only closely related to studying various purely legal phenomena like precedents, judicial discretion, legislatures, etc. The ascriptive legal statements (...) theory proposed by the Oxford School of Law (Herbert Hart, Joseph Raz, and others) serves as the core of contemporary legal positivism. This theory is based on the notion of defeasibility for legal responsibility without any moral reasoning. There, phenomena of law are interpreted as purely linguistic, not social constructions. Analysis of pure law language should provide all the needful tools to extract hidden meaning from any legal norm. This analysis does not require going beyond the legal language since it does not describe any real situations in the world, but merely expresses legal requirements, allowing to legally qualify some observed events. It completely eliminates any references to moral principles from the analysis of legal language. However the critical reconstruction theory of ascriptive legal statements shows limitations of the legal positivism’s analytical approach to the phenomena of law. The example of a fictitious legal collision offered demonstrates limitations of the legal positivism approach to the understand- ing of law phenomena. This collision is a complex conceptual mix of Frankfurt-style examples and imaginary situations in the Trolley Problem widely known in analytical ethics. It clearly demonstrates the possible paradox of a law judgment in situations where conditions for the recognition and cancellation of legal liability are the property of two different (not necessarily openly contradictory) legal norms. It can serve as a strong argument in favor of contemporary theories of natural law (Lon Fuller, John Finnis, Ronald Dworkin, and others), which questioned the possibility of creating a theory of pure law. They considered it senseless and impossible to draw any strict border between moral and legal norms. Immoral law cannot have the particular property of creating a moral obliga- tion to follow such like a law. Law cannot be built on legality only, and the answers to all significant legal questions should be found in moral theories. (shrink)

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

Luminaries like Martin Luther King, Jr. urge that Black Americans love even those who hate them. This can look like a rejection of anger at racial injustice. We see this rejection, too, in the growing trend of characterizing social justice movements as radical hate groups, and people who get angry at injustice as bitter and unloving. Philosophers like Martha Nussbaum argue that anger is backward-looking, status focused, and retributive. Citing the life of the Prodigal Son, the victims (...) of the Charleston Church shooting, Gandhi, and King, she claims that we should choose love instead of anger – not only in our intimate relationships but also in the political realm. Buddhist monk and scholar, Śāntideva, argued that anger is an obstacle to love. Anger leads to suffering. Love frees us from suffering. All this makes an initially compelling case against anger at racial injustice. In addition, although philosophers Jeffrie Murphy and Antti Kauppinen argue that anger communicates self-respect and valuing, respectively––they make no connection between agape love and anger. In this essay I’ll show that the love King and others have in mind––agape love––is not only compatible with anger at hateful racists and complicit others, but finds valuable expression in such anger. (shrink)

This paper makes an argument for the democratic value of distrust. It begins by analyzing distrust, since distrust is not merely the negation of trust. The account that it develops is based primarily on Martin Luther King Jr.’s work in Why We Can’t Wait. On this view, distrust is the confident belief that another individual or group of individuals or an institution will not act justly or as justice requires. It is a narrow normative account of distrust, (...) since it concerns a specific normative task. Distinctions between vertical and horizontal distrust, as well as trust and agnostic trust are also discussed. This paper argues that distrust’s democratic value lies in its ability to secure democracy by protecting political minorities from having their voices ignored. As such, distrust can be viewed as a kind of Madisonian “check and balance” that works to prevent tyranny. Distrust also works to secure democracy by forging new or alternative forms of democratic participation. The main example discussed in this paper is King’s involvement in the Birmingham Campaign during the Black Civil Rights movement in America. In this case, King and his supporters’ distrust of fellow White citizens and political institutions led to alternative forms of political expression such as non-violent protests, boycotts, and other forms of civil disobedience, all of which led to greater racial justice by working to alleviate White tyranny. (shrink)

Martin Luther King Jr. claimed that “the salvation of the world lies in the hands of the maladjusted”. I elaborate on King’s claim by focusing on the way in which we treat and understand ‘maladjustment’ that is responsive to severe trauma (e.g. PTSD that is a result of military combat or rape). Mental healthcare and our social attitudes about mental illness and disorder will prevent us from recognizing real injustice that symptoms of mental illness can be (...) appropriately responding to, unless we recognize that many emotional states (and not just beliefs!) that constitute those symptoms are warranted by the circumstances they are responsive to. I argue that there is a failure to distinguish between PTSD symptoms that are warranted emotional responses to trauma and those that are not. This results in us focusing our attention on “fixing” the agent internally, but not on fixing the world. It is only by centering questions of warrant that we will be able to understand and expose the relationship between agents’ internal mental states and their oppression. But we also need to ask when someone’s emotional response is unwarranted by their experience (as in the case of someone who develops PTSD after a non-traumatic event). If we fail to do this—as, I claim, both our mental healthcare and the broader social world fail to do—we treat warranted and unwarranted emotions as on a par. This undermines the epistemic judgment of the agent who has warranted PTSD symptoms, resulting in her failing to trust her evaluation of whether her emotional response to her own trauma is warranted by that trauma, and thus failing to recognize her own oppression. (shrink)

This article makes the case for the necessity of a multi-focal conception of violence in religion and peacebuilding. I first trace the emergence and development of the analytical concepts of structural and cultural violence in peace studies, demonstrating how these lenses both draw central insights from, but also differ from and improve upon, critical theory and reflexive sociology. I argue that addressing structural and cultural forms of violence are concerns as central as addressing direct (explicit, personal) forms of violence for (...) purposes of building just and sustainable peace. Moreover, religiously informed and/or motivated peacebuilders are especially well-appointed and equipped to identify and address violence in its structural and cultural manifestations. I the examine how concepts of structural and cultural violence, in effect, centrally inform the efforts of Martin Luther King and Cornel West to cultivate just and sustainable peace in a context as putatively peaceful and prosperous as the United States. (shrink)

Collected and edited by Noah Levin -/- Table of Contents: -/- UNIT ONE: INTRODUCTION TO CONTEMPORARY ETHICS: TECHNOLOGY, AFFIRMATIVE ACTION, AND IMMIGRATION 1 The “Trolley Problem” and Self-Driving Cars: Your Car’s Moral Settings (Noah Levin) 2 What is Ethics and What Makes Something a Problem for Morality? (David Svolba) 3 Letter from the Birmingham City Jail (Martin Luther King, Jr) 4 A Defense of Affirmative Action (Noah Levin) 5 The Moral Issues of Immigration (B.M. Wooldridge) 6 The (...) Ethics of our Digital Selves (Noah Levin) -/- UNIT TWO: TORTURE, DEATH, AND THE “GREATER GOOD” 7 The Ethics of Torture (Martine Berenpas) 8 What Moral Obligations do we have (or not have) to Impoverished Peoples? (B.M. Wooldridge) 9 Euthanasia, or Mercy Killing (Nathan Nobis) 10 An Argument Against Capital Punishment (Noah Levin) 11 Common Arguments about Abortion (Nathan Nobis & Kristina Grob) 12 Better (Philosophical) Arguments about Abortion (Nathan Nobis & Kristina Grob) -/- UNIT THREE: PERSONS, AUTONOMY, THE ENVIRONMENT, AND RIGHTS 13 Animal Rights (Eduardo Salazar) 14 John Rawls and the “Veil of Ignorance” (Ben Davies) 15 Environmental Ethics: Climate Change (Jonathan Spelman) 16 Rape, Date Rape, and the “Affirmative Consent” Law in California (Noah Levin) 17 The Ethics of Pornography: Deliberating on a Modern Harm (Eduardo Salazar) 18 The Social Contract (Thomas Hobbes) -/- UNIT FOUR: HAPPINESS 19 Is Pleasure all that Matters? Thoughts on the “Experience Machine” (Prabhpal Singh) 20 Utilitarianism (J.S. Mill) 21 Utilitarianism: Pros and Cons (B.M. Wooldridge) 22 Existentialism, Genetic Engineering, and the Meaning of Life: The Fifths (Noah Levin) 23 The Solitude of the Self (Elizabeth Cady Stanton) 24 Game Theory, the Nash Equilibrium, and the Prisoner’s Dilemma (Douglas E. Hill) -/- UNIT FIVE: RELIGION, LAW, AND ABSOLUTE MORALITY 25 The Myth of Gyges and The Crito (Plato) 26 God, Morality, and Religion (Kristin Seemuth Whaley) 27 The Categorical Imperative (Immanuel Kant) 28 The Virtues (Aristotle) 29 Beyond Good and Evil (Friedrich Nietzsche) 30 Other Moral Theories: Subjectivism, Relativism, Emotivism, Intuitionism, etc. (Jan F. Jacko). (shrink)

This article juxtaposes a jurisprudential thesis and a practical problem in an attempt to gain critical insight into both. The jurisprudential thesis is Dworkin’s rights thesis. The practical problem revolves around judicial resort to the floodgates argument in civil adjudication (or, more specifically, a version of this argument focused on adjudicative resources, which is dubbed here the FA). The analysis yields three principal observations: (1) Judicial resort to the FA is discordant with the rights thesis. (2) The rights thesis is (...) instructive in one way but mistaken in another. While Dworkin has highlighted some valid and sound reasons against judicial policymaking, his conclusive exclusion of judicial policymaking from civil law adjudication is erroneous. Civil law adjudication, it is argued, is an arena of ineliminable tension between principle and policy. (3) The FA is a type of policy argument particularly vulnerable to objections against judicial policymaking. There should, therefore, be a (rebuttable) presumption against judicial resort to it. (shrink)

Legal positivism emerged in response to natural law, as an indictment on the latter’s metaphysical predilections. Natural law dominance created a yearning for empiricism, or even a ‘hard scientism’ in approach to understanding socially constructed phenomenon, including legal praxis. From its Benthamite origins, it has since been developed, with recent, spirited debate still undertaken among towering legal scholars. Although its validity is contested to some, it remains as an analytic point of view of the law. Yet, within (...) its design, there is quite a bit of subject matter put out of view of the positivist, even though it is observable phenomenon within the sphere of legal praxis. This creates a void in which certain problems are unsolvable by the theory of law embodied in positivism. Rather than adjust the theory, the positivists either designate the void as the province for legal decision-making based on an internal morality in hard cases; or it criticises systems that do not strictly adhere to the positivist account as crude in the case of the international legal system. What follows is an account of HLA Hart’s brand of positivism, as it has remained dominant and perhaps the easiest to understand. I then identify subject-matter put out of view of positivism, with reference to Kelsen’s account of ‘authority’. I conclude that the positivist project is incomplete given its limited account of decision-making in hard cases and the international legal system. (shrink)

This paper explores the difference it makes to incorporate the multi-focal conception of violence that has emerged in peace studies over recent decades into the discourse of non-violent direct action (Galtung 1969, 1990; Uvin 2003; Springs 2015b). I argue that non-violent action can and should incorporate and deploy the distinctions between direct, cultural, and structural forms of violence. On one hand, these analytical distinctions can facilitate forms of self-reflexive critical analysis that guard against certain violent conceptual and practical implications of (...) non-violence, however inadvertent those may be. At the same time, these lenses help reconceptualise non-violent action in ways that open up an array of strategies and tools not previously prevalent among activists committed to non-violence. Non-violent action may itself be either complicit in, or might be enabled to illuminate and cut against, forms of violence that infuse social, political, and economic structures (i.e. structural violence). Appeals to non-violence and the actions with which they interweave may be complicit in, or might be enabled to illuminate and cut against, religious, ideological, aesthetic, and even scientific understandings and conceptual frames that underpin and support structural violence (i.e. cultural violence). In each case, non- violence must be critically examined with all these possibilities in mind. I first define and contextualize a multidimensional account of violence in terms of direct, structural, and cultural violence. I then consider two examples of how it challenges thinking about non-violence. (shrink)

The focus in the literature on scientific explanation has shifted in recent years towards modelbased approaches. The idea that there are simple and true laws of nature has met with objections from philosophers such as Nancy Cartwright (1983) and Paul Teller (2001), and this has made a strictly Hempelian D-N style explanation largely irrelevant to the explanatory practices of science (Hempel & Oppenheim, 1948). Much of science does not involve subsuming particular events under laws of nature. It is increasingly recognized (...) that science across the disciplines is to some degree a patchwork of scientific models, with different methods, strategies, and with varying degrees of successful prediction and explanation. And so accounts of scientific explanation have reflected this change of perspective and model-based approaches have flourished in the explanation literature (Batterman, 2002b; Bokulich, 2008; Craver, 2006; Woodward, 2003). (shrink)

This chapter develops an account of the meaning and use of various types of legal claims, and uses this account to inform debates about the nature and normativity of law. The account draws on a general framework for implementing a contextualist theory, called 'Discourse Contextualism' (Silk 2016). The aim of Discourse Contextualism is to derive the apparent normativity of claims of law from a particular contextualist interpretation of a standard semantics for modals, along with general principles of interpretation and conversation. (...) Though the semantics is descriptivist, it avoids Dworkin’s influential criticism of so-called “semantic theories of law,” and elucidates the nature of “theoretical disagreements” about the criteria of legal validity. The account sheds light on the social, interpersonal function of normative uses of language in legal discourse. It also gives precise expression to Hart’s and Raz’s intuitive distinctions among types of legal claims (internal/external, committed/detached), while giving them a uniform type of analysis. The proposed semantics and pragmatics of legal claims provides a fruitful framework for further theorizing about the nature and metaphysics of law, the relation between law and morality, and the apparent practical character of legal language and judgment. Discourse Contextualism provides a solid linguistic basis for a broader account of legal discourse and practice. (shrink)

The experimental turn in philosophy has reached several sub-fields including ethics, epistemology, and metaphysics. This paper is among the first to apply experimental techniques to questions in the philosophy of law. Specifically, we examine Lon Fuller's procedural natural law theory. Fuller famously claimed that legal systems necessarily observe eight principles he called "the inner morality of law." We evaluate Fuller's claim by surveying both ordinary people and legal experts about their intuitions about legal systems. We conclude that, at best, (...) we should be skeptical of Fuller's inner morality of law in light of the experimental data. (shrink)

The purpose of this paper is to examine the separability of law and morality within an analytic jurisprudential framework. The paper is comprised of four parts. First, the separability thesis will be discussed and defined. Second, Hart’s legal positivist account of law will be presented, which defends the separability thesis. Third, two objections from a natural law perspective (classical and contemporary) will be proposed against the legal positivist position, thereby rejecting the separability thesis. Each objection will be (...) accompanied by a possible Hartian reply. Finally, I will offer a novel analysis of the arguments as well as state why I find the Hartian approach preferable to the natural law theorist’s in regard to the separability thesis. (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)

The recent explosion of philosophical papers on Confederate and Colonialist statues centers on a central question: When, if ever, is it permissible to admire a person? This paper contends it’s not just Confederates and slavers whose reputations are on the line, but also pacifists like Martin Luther King, Jr., and Daisy Bates whose commitments to pacifism meant they were unwilling to save others using defensive violence, including others they talked into endangering themselves for the sake of racial (...) equality. Other things being equal, that’s gravely immoral if pacifism is false, and we shouldn’t admire people guilty of grave immorality. So, it appears that we shouldn’t admire Bates or King, which is counterintuitive. To solve this problem, I explore several possibilities: that only selective traits of Bates and King are admirable, that Bates and King are admirable despite their grave immorality, and that Bates and King are admirable by virtue of their integrity. However, each of these proposals fails: the first because it inadequately captures our moral phenomenology (we admire people, not just their traits), the second because it ignores the extent to which gravely immoral commitments are constitutive of a person’s moral character, and the third because we ought not to admire people for acting on their immoral beliefs. The paper concludes, first, that either pacifists like Bates and King aren’t admirable or they are, and the latter presupposes the truth of pacifism. Second, I borrow from Vanessa Carbonell’s ratcheting-up argument from moral sainthood to argue that pacifists like Bates and King provide epistemic defeaters to the objection that pacifism is unreasonably costly. Thus, not only are pacifists admirable only if they’re right—they are right. (shrink)

The article argues that the famous debate on natural and positive law between Lon Fuller and HLA Hart rests on a dispute about whether or not that something is a law provides on its own a prima facie reason for doing something.

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

According to the deductive-nomological account of ground, a fact A grounds another fact B in case the laws of metaphysics determine the existence of B on the basis of the existence of A. Accounts of grounding of this particular variety have already been developed in the literature. My aim in this paper is to sketch a new version of this account. My preferred account offers two main improvements over existing accounts. First, the present account is able to deal with necessitarian (...) as well as non-necessitarian cases of grounding by acknowledging the existence of two types of metaphysical laws. I will argue that we should assume that metaphysical laws come in the necessitarian as well as in the non-necessitarian varietyclosely paralleling the distinction between strict and non-strict laws in the philosophy of science. The second main improvement of the present account is that this account is able to provide an explanation of why the laws of metaphysics have a direction built into them. I will argue that we should characterize metaphysical laws with the help of Theodore Sider’s (2011) notion of structure, which is a descendent of David Lewis’s (1983) notion of naturalness. According to the account of metaphysical laws developed in this paper, metaphysical laws express in their antecedents either perfectly structural truths or more structural truths than in their consequents. Since on Sider’s account structural features of reality are fundamental features of reality, the account is able to explain as to why the laws of metaphysics take us from the fundamental to the derivative. (shrink)

What are laws, and do they necessarily have any basis in morality? The present work argues that laws are governmental assurances of protections of rights and that concepts of law and legal obligation must therefore be understood in moral terms. There are, of course, many immoral laws. But once certain basic truths are taken into account – in particular, that moral principles have a “dimension of weight”, to use an expression of Ronald Dworkin’s, and also that principled relations are (...) not always expressed by perfect statistical concomitances – the existence of iniquitous laws poses no significant threat to a moralistic analysis of law. Special attention is paid to the debate between Ronald Dworkin and H.L.A. Hart. Dworkin’s over-all position is argued to be correct, but issue is taken with his argument for that position. Hart’s analysis is found to be vitiated by an impoverished conception of morality and also of the nature of government. Our analysis of law enables us to answer three questions that, at this juncture of history, are of special importance: Are there international laws? If not, could such laws exist? And if they could exist, would their existence necessarily be desirable? The answers to these questions are, respectively: “no”, “yes”, and “no.” Our analysis of law enables us to hold onto the presumption that so-called legal interpretation is a principled endeavor, and that some legal interpretations are truer to existing laws than others. At the same time, it accommodates the obvious fact that the sense in which a physicist interprets meter-readings, or in which a physician interprets a patient’s symptoms, is different from the sense in which judges interpret the law. So our analysis of law enables us to avoid the extreme views that have thus far dominated debates concerning the nature of legal interpretation. On the one hand, it becomes possible to avoid the cynical view (held by the so-called “legal realists”) that legal interpretation is mere legislation and that no legal interpretation is more correct than any other. On the other hand, it becomes possible to avoid Blackstone’s view (rightly descried by Austin as a “childish fiction”) that judges merely discover, and do not create, the law. (shrink)

"Ethical Explorations: Moral Dilemmas in a Universe of Possibilities" by Brendan Shea is an open access textbook that provides a comprehensive study of ethical philosophy. Shea makes it his task to chart the sprawling landscape of moral thought from ancient times to the present, employing a straightforward, easily accessible style. -/- In the book, each chapter addresses a distinct ethical theory. Shea discusses everything from Plato's allegorical Cave to contemporary issues in bioethics. The text features relatable narratives, clear explanations of (...) core concepts, thought-provoking questions, and handy glossaries to help readers grasp the subject matter. -/- Among the topics, you'll find the principles of utilitarianism through the adventures of a princess, an exploration of duty via a story about a golem, and a look at natural law theory through an engaging science-fiction tale. Contemporary themes also make an appearance, including discussions on Marxism, Nietzsche's radical ideas, Simone de Beauvoir's intersection of feminism and existentialism, and racial theories from W.E.B. Du Bois and Martin Luther King. -/- As an open access (CC-BY) textbook, "Ethical Explorations" is freely available to everyone, making the study of moral philosophy accessible to all. It's a tool that gives its readers the means to wrestle with ethical questions in an ever-changing world. (shrink)

The innovative Moral Impact Theory (“MIT”) of law claims that the moral impacts of legal institutional actions, rather than the linguistic content of “rules” or judicial or legislative pronouncements, determine law’s content. MIT’s corollary is that legal interpretation consists in the inquiry into what is morally required as a consequence of the lawmaking actions. This paper challenges MIT by critiquing its attendant view of the nature of legal interpretation and argument. Points including the following: (1) it is not practicable to (...) predicate law’s content on the ability of legal officials to resolve moral controversies; (2) it would be impermissibly uncharitable to claim that participants in the legal system commit widespread error in failing to regard moral argument as the focus of legal interpretation; (3) whereas the legal official may initially respond to a conflict at the intuitive moral level, she must resolve the controversy at the deliberative, critical level, at which moral and legal thinking diverge; (4) because no two cases are precisely alike, and owing to the open texture of natural language, reference to extra-jurisdictional “persuasive” and “secondary” authority permeates legal argument, yet, nearly by definition, such linguistic sources cannot have engendered significant moral impacts in the home jurisdiction; and (5) one way or another, we ultimately arrive at linguistic contents. The paper concludes by accepting, as undeniable, that legal institutional actions have moral impacts, and generate moral obligations. Officials are obligated to adhere to certain constraints in their treatment of one another, cases, litigants and citizens. Less explored, however, have been the ways in which legal pronouncements likely morally impact the community, beyond the issue of a duty to obey the law. (shrink)

In this paper, we contend that the “Smith case” in Gettier’s attempt to refute the justified true belief (JTB) account of knowledge does not work. This is because the said case fails to satisfy the truth condition, and thus is not a case of JTB at all. We demonstrate this claim using the framework of Donnellan’s distinction between the referential and attributive uses of definite descriptions. Accordingly, the truth value of Smith’s proposition “The man who will get the job has (...) ten coins in his pocket” partly depends on how Smith uses the definite description “the man who will get the job” when he utters the proposition. Since, upon uttering the proposition, Smith has in mind a particular individual, namely Jones, and not just whoever will fit the attribute specified in the definite description, Smith uses the definite description referentially. And so when it turns out that it is Smith who eventually gets the job, the definite description fails to refer to Jones as intended by Smith, thereby making Smith’s proposition false. To think that Smith’s proposition is still true, in this regard, is to use the definite description attributively—that it is about whoever will fit the definite description. Apparently, when Gettier claims that Smith’s proposition is still true, to demonstrate that it is a case of JTB, he, in effect, imposes his attributive understanding of Smith’s usage of the definite description on Smith’s own epistemic situation. (shrink)

In the world of Avatar: The Last Airbender (ATLA) and The Legend of Korra (LOK) —let’s call it the Bending World—some people (“benders”) are endowed with telekinetic superpowers to maneuver surrounding objects without physical interaction, by mentally steering (“bending”) one of the four classical “elements of nature” composing the objects: air, fire, water, and earth. Perhaps, in a world where the fundamental laws of nature are radically different from those of our world, the fundamental conditions and manifestations of politics should (...) be radically different too. That, of course, is not to deny that political bodies familiar to us are depicted in ATLA and LOK: tribes, monarchies, autonomous townships, city-states, loose federations, colonial empires, and democracies. Despite those familiar depictions, however, it’s worth contemplating how the existence of supernatural power might fundamentally alter the norms and rationales of politics—and how it might in turn help us better understand our own political reality. (shrink)

After being nominated by Martin Luther King, Jr. for the Nobel Peace Prize, the “gentle and fearless” Vietnamese Buddhism monk Thich Nhat Hanh established a worldwide movement called the Order of Interbeing, which deals with major human conflicts with ancient Buddhist teachings. By drawing from original Buddhist texts, Hanh has created an authentic type of religious activism based on mindfulness of our connectedness that has real potential for peace, because of its twin focus on resolution and prevention. (...) In this paper, I discuss how the Order has come into existence, its framework, its cause, how it educates its members, and how effectively it is creating a culture of peace by examining the history of the Order, reading Hanh’s wisdom books and poetry, analyzing its structure, and interviewing a local Sangha on their mystical experiences. I argue that Thich Nhat Hanh’s engaged Buddhism has the potential to make a significant impact on mankind. (shrink)

A political philosopher dissects the duties and dilemmas of the unelected spokesperson, from Martin Luther King, Jr., to Greta Thunberg. -/- Political representation is typically assumed to be the purview of formal institutions and elected officials. But many of the people who represent us are not senators or city councilors—think of Martin Luther King, Jr., or Malala Yousafzai or even a neighbor who speaks up at a school board meeting. Informal political representatives are in (...) fact ubiquitous, often powerful, and some bear enormous responsibility. In Speaking for Others, political philosopher Wendy Salkin develops the first systematic conceptual and moral analysis of informal political representation. -/- Salkin argues that informal representation can be a political lifeline, particularly for oppressed and marginalized groups that are denied representation in formal political institutions. Yet informal political representatives exert outsized influence over the ways these groups’ interests are understood by the public, without the represented having much recourse to hold them accountable. And many informal political representatives are selected not by the groups they represent but by outsiders, sticking these groups with representatives they would not choose but cannot shake. The role of informal political representatives is therefore fraught with moral questions. What exactly are their duties and to whom are they owed? Should they be members of the groups they represent? When is informal representation permissible and when is it best avoided? -/- Informal political representation is taking place all around us. In fact, you yourself may be an informal political representative without knowing it. Speaking for Others explores the tensions central to this pervasive yet underexamined practice, bringing light to both its perils and its promise. (shrink)

Moral philosophers have defended anger as an important part of our moral lives. In spite of these defenses, skeptics have nonetheless argued that it would be better all things considered to get over anger to the extent that we can. They will often point to moral exemplars like Martin Luther King, Jr. or Gandhi to show both (a) that we can successfully overcome our feelings of anger and (b) that we would be morally better off doing so. (...) In this chapter, I argue against this aspiration. Those who advocate for such an aspiration fail to recognize that getting over anger would require us to radically reshape our moral psychology. I argue that feelings of anger are more central to our moral emotional lives than skeptics realize and that they cannot be removed without altering other valuable moral commitments. (shrink)

The modern concept of ideology was established by the liberal politician and philosopher Destutt de Tracy, with the objective of creating an all-embracing and general science of ideas, which followed the sensualist and empiricist trend initiated by Locke that culminated in the positivism of Comte. Natural selection and immunity are two key concepts in the history of biology that were strongly based on the Malthusian concept of struggle for existence. This concept wrongly assumed that population grew faster than the (...) means of existence. This “natural” law contained implicitly the idea that the poor and least gifted would not survive. This idea led to the progressive development of the concept of natural selection, whose definitive version was given by Darwin. Mechnikov took the concepts of struggle for existence and natural selection and conceived infectious diseases as a struggle between a host and its invader, the so-called phagocytosis theory. This theory created the necessity to possess mechanisms to discriminate between the own and the foreign, and led to the conception of the immune self. These concepts were not developed from ideas coming from perceptions or sensations, but from ideas coming from their values: individual interest, inevitable inequality, property, utility and profit. Values are ideals that constitute an ideological matrix which exerts a numinous activity and influence the development of our future actions. In consequence, science and its practice cannot avoid and ignore the values that drive them and impulse them towards certain directions. (shrink)

In her paper "(White) Tyranny and the Democratic Value of Distrust," Meena Krishnamurthy argues that distrust has a political value that has often been overlooked by democratic theorists. She pursues this argument by developing an account of distrust from Martin Luther King Jr. and exploring the role that King's distrust played in the Black Civil Rights Movement. In this discussion note, I argue that an alternative account of distrust from recent work by Katherine Hawley can better (...) capture distrust 's democratic value, and moreover might reveal how that value is noninstrumental, in contrast with the contingent and instrumental value granted to distrust on Krishnamurthy's account. (shrink)

To Shape a New World, ShelbyTommie and TerryBrandon. Cambridge, MA: Harvard University Press, 2018. Pp. x + 449.

I argue that while moral exemplars are useful, we must be careful in our use of them. I first describe forgiveness exemplars that are often used to persuade victims to forgive such as Nelson Mandela, Martin Luther King Jr., and Jesus of Nazareth. I also explain how, for Kant, highlighting these figures as moral exemplars can be useful. I then explain two kinds of rhetorical strategies that are used when attempting to convince victims to forgive. Last, I (...) explain (a la Kant) how the use of exemplars does not empower but instead disempowers victims. My overall claim is that using exemplars to persuade victims to forgive is problematic. It is best if we rely on decisive reasons to forgive instead of focusing on people who have forgiven. (shrink)

I examined the dance between harmony and chaos, particularly through the lens of sympathetic knowledge, the value of all experiences, and the necessity of a leap of love for true care and understanding. Drawing from the philosophies of Jane Addams and Martin Luther King Jr. This paper navigates the complex interplay between individual experiences and societal structures, showing the importance of how empathetic engagement and a commitment to understanding other perspectives are crucial for cultivating a harmonious society. (...) The discussion of the UAW strike served as a modern embodiment of these principles, showing how collective action and empathy can lead to substantial societal change. This essay has not only argued that a harmonious society is attainable but has also underscored the importance of active participation, mutual understanding and love as foundational pillars in this pursuit. By recognizing the inherent value in every individual’s experience and choosing a path of empathy and love, even in the face of adversity, we take significant steps towards dismantling systems of injustice and fostering a more equitable and harmonious world. This is not a utopian dream but a tangible goal that requires ongoing effort, understanding, and, most importantly, a leap of love. (shrink)

Despite pervasive variation in the content of laws, legal theorists and anthropologists have argued that laws share certain abstract features and even speculated that law may be a human universal. In the present report, we evaluate this thesis through an experiment administered in 11 different countries. Are there cross‐cultural principles of law? In a between‐subjects design, participants (N = 3,054) were asked whether there could be laws that violate certain procedural principles (e.g., laws applied retrospectively or unintelligible laws), and also (...) whether there are any such laws. Confirming our preregistered prediction, people reported that such laws cannot exist, but also (paradoxically) that there are such laws. These results document cross‐culturally and –linguistically robust beliefs about the concept of law which defy people's grasp of how legal systems function in practice. (shrink)

Experiments in particle physics have hitherto failed to produce any significant evidence for the many explicit models of physics beyond the Standard Model (BSM) that had been proposed over the past decades. As a result, physicists have increasingly turned to model-independent strategies as tools in searching for a wide range of possible BSM effects. In this paper, we describe the Standard Model Effective Field Theory (SM-EFT) and analyse it in the context of the philosophical discussions about models, theories, and (bottom-up) (...) effective field theories. We find that while the SM-EFT is a quantum field theory, assisting experimentalists in searching for deviations from the SM, in its general form it lacks some of the characteristic features of models. Those features only come into play if put in by hand or prompted by empirical evidence for deviations. Employing different philosophical approaches to models, we argue that the case study suggests not to take a view on models that is overly permissive because it blurs the lines between the different stages of the SM-EFT research strategies and glosses over particle physicists' motivations for undertaking this bottom-up approach in the first place. Looking at EFTs from the perspective of modelling does not require taking a stance on some specific brand of realism or taking sides in the debate between reduction and emergence into which EFTs have recently been embedded. (shrink)

Legal philosophers make a number of bold, contentious claims about the nature of law. For instance, some claim that law necessarily involves coercion, while others disagree. Some claim that all law enjoys presumptive moral validity, while others disagree. We can see these claims in at least three, mutually exclusive ways: (1) We can see them as descriptions of law’s nature (descriptivism), (2) we can see them as expressing non-descriptive attitudes of the legal philosophers in question (expressivism), or (3) we can (...) see them as practical claims about how we should view law or order our society (pragmatism). This paper argues that we should understand these claims in the pragmatist way, as claims about how we should view law or order society. (shrink)

The focus in the literature on scientific explanation has shifted in recent years towards model-based approaches. In recent work, Alisa Bokulich has argued that idealization has a central role to play in explanation. Bokulich claims that certain highly-idealized, structural models can be explanatory, even though they are not considered explanatory by causal, mechanistic, or covering law accounts of explanation. This paper focuses on Bokulich’s account in order to make the more general claim that there are problems with maintaining that a (...) structural criterion can capture the way that highly-idealized models explain. This paper examines Bokulich’s claim that the structural model explanation of quantum wavefunction scarring, featuring semiclassical mechanics, is deeper than the explanation provided by the local quantum model. The challenge for Bokulich is to show that the semiclassical model answers a wider range of w-questions, as this is her method of assessing structural information. I look at two reasonable approaches employing w-questions, and I argue that neither approach is ultimately satisfactory. Because structural similarity has preferences for more fundamental models, I argue that the local quantum model provides explanations that at least as deep as the semiclassical ones. The criterion either wrongly identifies all models as explanatory, or prefers models from fundamental theory. Either way, it cannot capture the way that highly-idealized models explain. (shrink)

El trabajo consiste en una elucidación de los elementos que conforman el concepto de pena natural (poena naturalis) en el Derecho penal. Se puede caracterizar la pena natural como el daño o sufrimiento que recae sobre el autor de un delito, producto de la comisión del mismo, que debe ser descontado de la pena legal que ha de aplicársele. Si bien existe un mínimo acuerdo sobre esto, tanto en la jurisprudencia como en la doctrina penal se observan serios (...) desacuerdos acerca de los requisitos que se deben cumplir para reconocer que se está frente a una pena natural. Para elucidar los elementos, se utilizará el constructivismo conceptual de Ronald Dworkin, a fin de describir el desacuerdo y sus implicancias, reconocer los elementos principales de la pena natural y justificarlos bajo su mejor luz moral. ABSTRACT This study focuses on the clarification of the conceptual elements of poena naturalis in criminal law settings. The poena naturalis is the damage or suffering that falls on the convict for its commission. This damage must be deducted from the poena forensis to be applied. Although there is a minimum agreement about the concept of poena naturalis, in the jurisprudence and among legal scholars, there are serious disagreements about the elements of poena naturalis. To elucidate the elements, I will adopt Ronald Dworkin’s conceptual constructivism to describe the disagreement and its implications. At last, I will justify the main elements of the poena naturalis by their best moral light. (shrink)

Our purpose in this article is to draw attention to a connection that obtains between two dilemmas from two separate spheres: sports and the law. It is our contention that umpires in the game of cricket may face a dilemma that is similar to a dilemma confronted by legal decision makers and that comparing the nature of the dilemmas, and the arguments advanced to solve them, will serve to advance our understanding of both the law and games.

This paper explores the possibility that Hobbesian jurisprudence is best understood as a ‘third way’ in legal theory, irreducible to classical natural law or legal positivism. I sketch two potential ‘third theories’ of law -- legal pragmatism and legal dualism -- and argue that, when considered in its broadest sense, Leviathan is best viewed as an example of legal pragmatism. I consider whether this legal pragmatist interpretation can be sustained in the examination of Leviathan’s treatment of civil law, and (...) argue that the pragmatic interpretation can only be successful if we can resolve two textual issues in that chapter. First, while Hobbes argues that law entails the existence of public (sharable) reasons, he does not adequately defend the view that the sovereign is the unique authority over such reasons in all cases, especially as far as they concern known collective emergencies. Second, Hobbes both affirms and denies that a sovereign can fail to do justice, which is paradoxical. Both problems are best resolved by legal pragmatism, though the second problem resists a fully satisfying resolution. The upshot is that, although Leviathan ought to be regarded as an episode of legal pragmatism, there are trade-offs on every reading. (shrink)

In this chapter, I approach the subject of peace by way of Andrew Fiala’s pioneering, synthetic work on “practical pacifism.” One of Fiala’s articles on the subject of peace is entitled “Radical Forgiveness and Human Justice”—and if one were to replace “Radical Forgiveness” with “Peace,” this would be a fair title for my chapter. In fact, Fiala himself explicitly makes a connection in the article between radical forgiveness and peace. Also in support of my project, Fiala’s article names four of (...) the six historical figures who are central to my chapter, namely Marcus Aurelius, King, Arendt, and Nietzsche. Moreover, Fiala also insists there “forgiveness must be held in creative tension with justice,” and it is this very tension that forms the basis of my new conception of socially-just peace. To wit, I propose that socially-just peace is lovingly generous reimagining (peace) through intuitively self-overcoming tension (social justice). (shrink)

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

Across almost a decade, Desmond Tutu, Anglican cleric and chairman of South Africa’s Truth and Reconciliation Commission, supported a model of civil resistance against the apartheid regime based solely on religious argument. Tutu is one of what Appleby (2000) calls the “religious militants for peace”: people of faith who use religious arguments to buttress resistance against unjust regimes and to support vital political change with regard to rights and justice. Yet the employment of religious arguments to justify political action seems (...) to contradict the liberal democratic requirements of public reason, particularly the duty of liberal citizens to provide reasons that others could reasonably endorse. If “religious militants” violate their duty of civility by appealing to their comprehensive doctrines, should liberal democracy exclude this form of religiously founded dissent as being unreasonable? Or, rather, should liberal democracy embrace and support the efforts of “religious militants” to enhance and/or restore political justice? (shrink)

Arthur Kaufmann is one of the most prominent figures among the contemporary philosophers of law in German speaking countries. For many years he was a director of the Institute of Philosophy of Law and Computer Sciences for Law at the University in Munich. Presently, he is a retired professor of this university. Rare in the contemporary legal thought, Arthur Kaufmann's philosophy of law is one with the highest ambitions — it aspires to pinpoint the ultimate foundations of law by explicitly (...) proposing an ontology, a general theory of knowledge and concept of a person. Kaufmann's work derives, first of all, from the thinking of Gustav Radburch, his teacher, and then from ideas of Karl Engish and Hans-Georg Gadamer. The philosophy undertakes to pursue the ultimate foundation of law, law which is understood by Kaufmann, first of all, as a "concrete judgement" that is, what is right in a concrete situation. Justice belongs to the essence of law and "unjust law" is contradictio in adiectio. Kaufmann opposes all those theories, which as the only foundation for establishing just law (Recht) adopt legal norms (Gesetz). In Kaufmann's opinion , such theories are powerless in the face of all types of distortions of law rendered by political forces. He suggests that the basic phenomenon which needs to be explained and which cannot be disregarded by a philosopher of law is so-called "legal lawlessness" ("Gestzliches Unrecht"). "Legal lawlessness" which forms a part of life experience for the people of twentieth century totalitarian states. It proved "with the accuracy of scientific experiment" that the reality of law consists of something more than bare conformity with legal norms. The existence of lex corrupta indicates that law contains something "non-dispositive" which requires acknowledgment of both law-maker and judge. Kaufmann, accepting the convergent concept of truth and cognition, assumes that "non-dispositive" content, emerging as the conformity of a number of cognitive acts of different subjects (inter-subjective communicativeness and verifiability), indicates the presence of being in this cognition. The questions "What is law?" and "What are the principles of a just solution?" lead straight to the ontology of law, to the question about the ontological foundations of law. Kaufmann discerns the ontological foundations of law in the specifically understood "nature of things" and, ultimately, in a "person". He proposes a procedural theory of justice, founded on a "person". In my work, I undertake to reconstruct the train of thought which led Kaufmann to the recognition of a "person" as the ontological foundation of law. In the first part, the conception of philosophy adopted by Kaufmann, initial characteristics of law — of reality which is the subject of analysis, as well as, the requirements for proper philosophical explanation of law posed by Kaufmann are introduced. In the second, Kaufmann's reconstruction of the process of the realisation of law is presented. Next, the conception of analogy which Kaufmann uses when explaining law is analyzed. In the fourth part, Kaufmann's conception of ontological foundations of law is discussed. A critical analysis is carried out in which I demonstrate that the theory of the ontological foundation of law proposed by Kaufmann and the concept of a person included in it do not allow a satisfac¬tory explanation of the phenomenon of "legal lawlessness" and lead to a number of difficulties in the philosophical explanation of law. Finally, the perspectives of a proper formulation of the issue of the ontological foundations of law are drafted in the context of the analyzed theory. My interest is centered on the conception of philosophy adopted by Kaufmann, according to which the existence of the reality is inferred on the basis of a certain configuration of the content of consciousness, whereas at the point of departure of philosophy of law, the data to be explained is a certain process, which is, basically, a process of cognition, while the reality appears only as a condition for the possibility of the occurrence of the process. I wish to argue that the difficulties which appear in the explanation of law are a consequence of the assumed fundamental philosophical solu¬tions, which seem to be characteristic, though usually not assumed explicitly, in philoso¬phy and theory of law dominant at present in continental Europe. Thereby, I wish to show the significance of ontological and epistemological solutions to the possibility of a proper formulation of the problems posed by philosophy and theory of law. Kaufmann proclaims himself in favour of a philosophy which poses questions about the ultimate foundations of understanding of the reality. In epistemology, he assumes that answers to the questions "What is reality like?" and ultimately "What is real?" are inferred on the basis of uniformity of a cognitive acts of different subjects. Cognition of the reality is accomplished exclusively through the content of conceptual material. The two fundamental questions posed by philosophy of law are "What is just law?" and "How is the just law enacted?" The latter is a question about the process of achieving a solution to a concrete case. Since, in Kaufmann's opinion, law does not exist apart from the process of its realisation, an answer to the question about the manner of realisation of law is of fundamental significance to answering the question: "What is law?" and to the explanation of the question about the ontological grounding of law, which is, as well, the foundation of justice. The proper solution has to take into account the moment of "non-dispositive" content of law; its positiveness understood as the reality and, at the same time, it has to point to the principles of the historical transformation of the content. Law, in the primary meaning of the word, always pertains, in Kaufmann's opinion, to a concrete case. A legal norm is solely the "possibility" of law and the entirely real law is ipsa res iusta, that which is just in a given situation. Determination of what is just takes place in a certain type of process performed by a judge (or by man confronted with a choice). Kaufmann aims to reconstruct this process. A question about the ontological foundation of law is a question about the ontological foundations of this process. In the analyzed theory it is formulated as a question about the transcendental conditions, necessary for the possibility of the occurrence of the process: how the reality should be thought to make possible the reconstructed process of the realisation of law. Kaufmann rejects the model for finding a concrete solution based on simple subsump¬tion and proposes a model in which concrete law ensues, based on inference by analogy, through the process of "bringing to conformity" that which is normative with that which is factual. Kaufmann distinguishes three levels in the process of the realisation of law. On the highest level, there are the fundamental legal principles, on the second legal norms, on the third — concrete solutions. The fundamental principles of law are general inasmuch as they cannot be "applied" directly to concrete conditions of life, however, they play an important part in establishing norms. A judge encounters a concrete situation and a system of legal norms. A life situation and norms are situated on inherently different levels of factuality and normativeness. In order to acquire a definite law both a norm (system of norms) and a life situation (Lebenssachverhalt) should undergo a kind of "treatment" which would allow a mutual conformity to be brought to them. Legal norms and definite conditions of life come together in the process of analogical inference in which the "factual state" ("Tatbestand") — which represents a norm, and in the "state of things" ("Sachverhalt") — which represents a specific situation are constructed. A "factual state" is a sense interpreted from a norm with respect to specific conditions of life. The "state of things" is a sense constructed on the basis of concrete conditions of life with respect to norms (system of norms). Legal norms and concrete conditions of life meet in one common sense established during the process of realisation of law. Mutatis mutandis the same refers to the process of composition of legal norms: as the acquisition of concrete law consists in a mutual "synchronization" of norms and concrete conditions of life, so acquisition of legal norms consists of bringing to conformity fundamental principles and possible conditions of life. According to Kaufmann, both of these processes are based on inference through analogy. As this inference is the heart of these processes it is simultaneously a foundation finding just law and justice. How does Kaufmann understand such an inference? As the basis for all justice he assumes a specifically interpreted distributive justice grounded on proportionality. Equality of relations is required between life conditions and their normative qualification. Concrete conditions of life are ascribed normative qualification not through simple application of a general norm. More likely, when we look for a solution we go from one concrete normative qualified case to another, through already known "applications" of norms to a new "application". The relation between life conditions and their normative qualifica¬tion has to be proportional to other, earlier or possible (thought of) assignments of that which is factual to that which is normative. Law as a whole does not consist of a set of norms, but only of a unity of relations. Since law is a, based on proportion, relative unity of a norm and conditions of life, in order to explain law in philosophical manner, the question about ontological base of this unity has to be asked. What is it that makes the relation between a norm and conditions of life "non-dispositive"? What is the basis for such an interpretation of a norm and case which makes it possible to bring a norm and conditions of life into mutual "conformity"? This is a question about a third thing (next to norms and conditions of life), with respect to which the relative identity between a norm and conditions of life occurs, about the intermediary between that which is normative and that which is factual and which provides for the process of establishing of norms, as well as, finding solutions. It is the "sense" in which the idea of law or legal norm and conditions of life have to be identical to be brought to mutual "conformity". In Kaufmann's opinion such a sense is nothing else but the "nature of things" which determines the normative qualification of the reality. Since establishment of this "sense" appears to be "non-dispositive" and controlled inter-subjectively (namely, other subjects will reach a similar result) so, in conformity with the convergent concept of truth, the "nature of things" must be assigned a certain ontological status. According to Kaufmann this is a real relation which occurs between being and obligation, between the conditions of life and normative quality. However, it should be underlined that from the point of view of the analyzed system the "nature of things" is a correlate of constructed sense, a result of a construction which is based on the principle of consistent understanding of senses ("non-normative" and "normative") and is not a reality which is transcendent against the arrangement of senses. In Kaufmann's theory, inference from analogy appears to be a process of reshaping the concepts (senses) governed by tendency to understand the contents appearing in relations between that which is factual and that which is normative in a consistent way. The analogical structure of language (concepts) and recognition of being as composed of an essence and existence is an indispensable requirement for the possibility of the realisation of law, based on specifically understood inference from analogy. It is necessary to assume a moment of existence without content which ensures unity of cognition. Existence emerges thus as a condition of the possibility of cognition. According to Kaufmann, the "nature of things" is the heart of inference through analogy and the basis for establishment of finding of law. Inference from the "state of things" to a norm or from a norm to the "state of things" always means inference through the "nature of things". The "nature of things" is the proper medium of objective legal sense sought in every cognition of law. In Kaufmann's view, the question whether the "nature of things" is ultima ratio of interpretation of law or is only a means of supplement gaps in law or whether it is one of the sources of law, is posed wrongly. The "nature of things" serves neither to supplement the gaps nor is it a source of law as, for example, a legal norm may be. It is a certain kind of "catalyst" necessary in every act of making law and solving a concrete case. Owing to "nature of things" it is possible to bring to a mutual conformity the idea of law and possible conditions of life or legal norms and concrete conditions of life. In Kaufmann's conception the "nature of things" is not yet the ultimate basis for understanding the "non-dispositiveness" of law. The relation between obligation and being is determined in the process of the realisation of law. Both the process itself and that which is transformed in this process are given. A question about the ontological bases of "material" contents undergoing "treatment" in the process of the realisation of law and about being which is the basis of regularity of the occurrence of the process arises. Only this will allow an explanation that the result of the process is not optional. Thus, a question about reality to which law refers and about the subject realising the law has to be formed. To this, Kaufmann gives the following answer: that which is missing is man but not "empirical man" but man as a "person". A "person" understood as a set of relations between man and other people and things. A "person" is the intermediary between those things which are different — norm and case are brought to conformity. A "person" is that which is given and permanent in the process of the realisation of law. It determines the content of law, is "subject" of law; this aspect is described by Kaufmann as the "what" of the process of realisation of law. A "person" consists of precisely just these relations which undergo "treatment" in the process. On the other hand, a "person" is "a place" in which the processes of realisation of law occur, it is the "how" of normative discourse, a "person" is that which determines the procedure of the process, being "outside" of it. This aspect of a "person" is connected with the formal moment of law. A "person" being, at the same time, the "how" and the "what" of the process of the realisation of law, is also, to put it differently, a structural unity of relation and that which constitutes this relation (unity of relatio and relata). According to this approach a "person" is neither an object nor a subject. It exists only "in between". It is not substance. Law is the relation between being and obligation. That which is obligatory is connected with that which is general. That which is general does not exist on its own, it is not completely real. Accordingly, a "person" as such is also not real. It is relational, dynamic and historical. A "person" is not a state but an event. In Kaufmann's opinion, such a concept of a "person" helps to avoid the difficulties connected with the fungibility of law in classical legal positivism. A "person" is that which is given, which is not at free disposal and secures the moment of "non-dispositiveness" of law. Kaufmann concludes: "The idea (»nature«) of law is either the idea of a personal man or is nothing". Theory points at the structure of realising law and explains the process of adoption of general legal norms for a concrete situation. The analysis has shown however, that in this theory a satisfactory answer to the question about the ultimate foundations of law is not given. It seems that in the analyzed theory the understanding of human being takes place through understanding of law. What is good for man as a "person", what is just, what a "person" deserves may be determined only against the existing system of law. A "per¬son" adopted as a basis of law is the reality postulated in the analysis of the process of the realisation of law. It is a condition of possibility of this process ( explaining, on one hand, its unity and, on the other hand, the non-dispositive moments stated in this process). A "person" in the discussed theory is entirely defined by the structure of law, it can be nothing more than that which is given in law, what law refers to, what law is about. Being, which is a "person", is constituted by relations between people and objects, the relations which are based on fundamental links between norms and conditions of life established in a process of bringing them to conformity. It has to be assumed that man as a "person" is a subject of law only as far as realising law "treats" given senses according to their current configuration. The system of law is a starting point and it describes in content what man is as a "person". Moreover, being a "person" is the condition for entering legal relations. Consistently, Kaufmann writes that "empirical man" is not the subject of law, man is not "out of nature" a "person". People become "persons" due to the fact that they acknowledge each other as "persons" — acknowledging, at the same time, law. This acknowledgement is a con¬dition of existence, of the possibility of the occurrence of process of realisation of law and of constituting legal relations which ultimately constitute a "person". Kaufmann assumes, that law tends towards a moral aim: it may and must create an external freedom, without which the internal freedom to fulfil moral obligations cannot develop. However, this postulate is not based on the necessary structure of human being. From the point of view of his system, it is nothing more than only a condition for the possibility of the occurrence of the process of the realisation of law — lack of freedom would destroy the "how" of this process. Thus, the postulate to protect the freedom of personal acts has to be interpreted, in accordance with the analyzed theory, as a postulate, the fulfilment of which aims ultimately at the accomplishment of the very same process of realisation of law itself and not the realisation of a given man. Kaufmann considers a "person" to be an element which unites the system of law as a whole. Law is a structure of relations, which are interdependent and inter-contingent. Consequently, a "person" which is to form the ontological basis of law has to be entity consisting of all relations. Being also the "how" of the process of realisation of law, if a "person" is to warrant its unity, it has to be a common source for all procedures. Hence, a single "person" would constitute a subject of law. Man appears to be only a moment of a certain entirety, realisation of which should be an aim of his actions. Law, creating a "person" as an object and subject of law becomes a primary entity. In the analyzed theory, the basis for determination of aims which law sets to man is not the allocation of man-subject to something which improves him but rather, such relation is only just constituted by law. A question appears, why should aims set in law also be the aims of "empirical man"? Why is this "empirical man" to be punished in the name of a "person" understood in such a way? If, however, it is assumed that what is man is determined by a system which is superior to him, then man has to be understood only as a part of a whole and there are no grounds to prohibit istrumental treatment of man and so the road to all aspects of totalitarianism might be opened. A problem of the application of created theory to the reality arises, the reality which the theory pretends to explain. Ultimately in his theory Kaufmann does not give any systemic grounds for a radical questioning of the validity of any legal norms. Every new norm becomes an equal part of system of norms. It is only its interpretation and application to given conditions of life that may be disputable, however, this refers to all norms without exception. Cohesive inter-pretation of norms and applications is necessary and sufficient for the acquisition of just law. New norms have to be interpreted in the light of others, correspondingly, the other norms require reinterpretation in the light of the new ones. Contradiction in interpretation of a norm does not form a basis for questioning norms but may serve only to question the manner of their interpretation (understanding). Therefore, no grounds exist to assume any legal norm as criminal or unjust, and in consequence, to question any consistently realised system based on formally, properly established norms, as "legal lawlessness". As law and a "person" do not exist without the process of realisation of law, the role of legal safety becomes crucial as the condition for the possibility of the occurrence of the process of realisation of law. Denying legal safety would be tantamount to negation of law in general (also of moral law) as negation of safety takes away, at the same time, the basis for occurrence of the process of realisation of law. Moreover, any lack of legal safety would also mean lack of a basis for the existence of man as a "person". Kaufmann's thesis, that civil disobedience is legalized only when it has a chance to lead to success, consistent with his concept of the foundations of law, seems to point directly to conclusions which deny the facts taken under consideration and doubtlessly Kaufmann's own intentions, since it would have to be assumed that accordingly there are no grounds to question a legal system in force based on violence which secures its operation. Force finally seems to determine which one of the mutually irreconcilable normative systems constitute law and which does not. A legitimate position is one which leads to success, it is the weaker system which is negated. If so, then basically violent imposition of law is not an act directed against the law in force but, to the contrary, realisation of law. In the context of the new system the former system of law may be talked about as unjust solely in the sense of being incapable of being consistently united with the new. However, at the base, ultimately, lies force which reaffirms differences and excludes from the process of realisation of law certain norms and their interpretations. Kaufmann was aiming at grounding of that which is "non-dispositive" in a certain given framework of interpretation. Nevertheless, he does not provide foundations for the understanding of phenomena, which he undertakes to explain at a point of departure. Instead of explaining them the theory negates the possibility of their existence. The reality postulated in regard to "non-dispositive" moments of the reconstructed process of acquiring law consist of a specifically understood "person", which appears in Kaufmann's conceptions as a condition of the possibility of the realisation of law. According to this approach understanding of a "person" may be only a function of law. To understand "legal lawlessness" and foundations of justice it is necessary to look for such theory of law in which understanding of man as a "person" and being is not a function of understanding of law (in which a "person" is not only a condition for possibility of reconstructed process of realisation of law; for possibility of cognition processes). It seems necessary to start from theory of being and a "person" based on broader experience than the one assumed by Kaufmann and reconstruct the ontological foundations of the process of realisation of law only in such perspective. Kaufmann points out that that to which law refers is ipsa res iusta a concrete relation of man to other people and things. This relation, in his theory, appears to be basically only just constituted by law (normative senses "applied" to conditions of life). Therefore, understanding the relation between a given man and other people and things which constitute the aim of his actions, that is understanding of good, is enacted against the background of constitution of senses; constitution which is a result of a process aiming towards consistent understanding of particular contents (of nor¬mative and non-normative senses). "Being" is secondary towards constructed senses it is only their correlate. The primary relation consists of relation of a man to law (system of norms), while the secondary relation is one of man to something which is the aim of his action (relation between man and good). Considering such approach it is difficult to envision a satisfying answer to the fundamental question: why does law put concrete man under any obligation to obey it? The source of this problem can be seen in reduction of the base for understanding good to content of obligation formulated in auto-reflection. Such reduction seems to be a consequence of Kaufmann's adoption of "convergent concept of truth" and in con¬sequence his recognition of indirect, essentialistic grasp of reality formulated in concepts as the basic and only foundation of theory of being and of law. In view of such an approach, analogy of law, concepts and being is the condition for the possibility of the process of transformation of senses which aims at consistent interpretation of all law. Existence is postulated with respect to the possibility of unity of experience and cognition. However, also a different approach to understanding of the problem of being and good is possible. In spontaneous cognition being is affirmed, first of all, not as a certain, non-contradictory, determined content, but as something existing. Together with a cer¬tain content (passed indirectly through notions) existence of being is co-given. The basis for unity of being is not formed by the consistence of content, as it is in the case of the theories departing from the analysis of cognition processes, but by an act of existence realising content (essence). Such an approach makes it also possible to go beyond the convergent concept of truth. It is worth mentioning that allocation of an agent to good is realised not only by the content of duty. A statement that something is good is primary with respect to determination of this good in content. The recognised good always bears some content, however, there are no reasons to base the concept of good exclusively on indirect, formulated in concepts cognition. As primary, can be adopted the relation of man to good and not of man to law. Determination in content appears to be only an articulation of aspectual cognition of being, as an object of action. In such a case the basis for relative unity of norm and conditions of life is not the "nature of things" understood as correlate of sense but it is relation to good based on internal constitution of man as potential, not self-sufficient being. It does not mean, that the moments of the process of realisation of law singled out by Kaufmann are not important to determination of what is just. He, quite rightly, points to significant role played by norms in the evaluation of concrete situations, in man's search for closer specification in content of good innate to him. The structure of process of determining law for a concrete situation, to a great degree corresponds to the processes of determining law which take place not only in the legal sciences. Kaufmann's analyses of the process of realisation of law show the complexity of the structure of these processes and point towards important moments allowing a better understanding of law and man. Nevertheless, these analyses cannot be a basis for construction of philosophical theory of law, theory which hopes to point out the ultimate, ontological foundations for understanding law. Kaufmann's results may become fully valid only in a more general perspective including broader experience at the point of departure. (shrink)

We subsist under the law where we claim our rights and are obliged to do something enforced. What is a law? The question would be perplexing in history, and one of crucial themes with many lawyers or legal philosophers. As we know, two most important perspectives had earned a universal and historical forge in academics, to say, the natural law and legal positivism. The concept of natural law deals in its primacy for the humanity and natural order (...) which often can be traded as something inviolable or inalienable. The concept has strands in several aspects; (i) its anchor with the civil democratic revolution around 17 and 18 centuries (ii) its supremacy with the new constitutional states (iii) less quality as a realist law from ambiguities and lack of clear definition. The concept of public policy may be related with the social justice, ethics and administration. It generally pursues a justice and desired state of public or community where the tension and conflict always exist between the ruling class and citizens. Historically, the public policy could be mightier to address the society than law where the benevolent Kings or Sovereigns liked to address both their needs and social justice. They may abrogate, more in endowment and divinity, the laws or social customs. The tension between the public power and private interests could be one reason as well as offers a good dualism in understanding the rule of law concept and advent of modern democracy. In this dimension, the King would no longer be divine nor entitled to exercise a plenary power of state rule. Instead, the popular sovereignty in the US democracy or parliamentary type in the UK were to be established to resolve a feudal conflict within the class and society. Lighted to be in vein of influence could arise the two contexts which are a contractarian view and plutocracy desire of the founding fathers. They underlay the mood and philosophical ethos of US revolution. Hence, three concepts as a pillar in private law were sanctified in the very foundation of US constitutional state, sanctity of property right, freedom of contract and due limits for the civil liability. The governmental power should be limited to protect the life and limb of citizens which addressed the Hobbes’ evil, “war against all the rest.” The due process concept was expressed as a fundamental principle of constitution where the human rights are inviolable and inalienable. The separation of powers principle could serve the freedom and wealth of new civil class in the continent, and bicameralism was devised for the check and balance within the federal congress. They see the role of judicial branch is important to preserve their civil interest. Then we can derive some assumptions between the law and public policy. First, a law plays to protect the private interest while the public policy pursues the social justice and mediates the competing interests, “private v. private” and “public v. private.” The civil courts may address a first nature of conflict and the law of takings or regulatory laws may deal with the second aspect. Second, the public or administrative law can shape a legal plane of bureaucracies or public administration, and may guarantee the rule of law ideals. It plays as an enabling authority and, on the other, monitors an arbitrariness and unfairness in the bureaucratic government. In this context, the unresponsive and unfathomable bureaucracy in the Kafka’s could be remedied. Third, for the welfare state in the late 19th and 20th century, a law can well be seen as one of authoritative expression of public policy to redress the evils of capitalist states. Some public laws, such as the Sherman Act classically and Lanham Act recently, may act to regulate the monopoly or oligopoly while other laws were enacted to restore justice between the labor and employers. Through the chapters, the fundamentals of law and public policy will be considered to address their proper status. (shrink)

There is something puzzling about statistical evidence. One place this manifests is in the law, where courts are reluctant to base affirmative verdicts on evidence that is purely statistical, in spite of the fact that it is perfectly capable of meeting the standards of proof enshrined in legal doctrine. After surveying some proposed explanations for this, I shall outline a new approach – one that makes use of a notion of normalcy that is distinct from the idea of statistical frequency. (...) The puzzle is not, however, merely a legal one. Our unwillingness to base beliefs on statistical evidence is by no means limited to the courtroom, and is at odds with almost every general principle that epistemologists have proposed as to how we ought to manage our beliefs. (shrink)

According to a captivating picture, epistemic justification is essentially a matter of epistemic or evidential likelihood. While certain problems for this view are well known, it is motivated by a very natural thought—if justification can fall short of epistemic certainty, then what else could it possibly be? In this paper I shall develop an alternative way of thinking about epistemic justification. On this conception, the difference between justification and likelihood turns out to be akin to the more widely recognised (...) difference between ceteris paribus laws and brute statistical generalisations. I go on to discuss, in light of this suggestion, issues such as classical and lottery-driven scepticism as well as the lottery and preface paradoxes. (shrink)

Some contextually sensitive expressions are such that their context independent conventional meanings need to be in some way supplemented in context for the expressions to secure semantic values in those contexts. As we’ll see, it is not clear that there is a paradigm here, but ‘he’ used demonstratively is a clear example of such an expression. Call expressions of this sort supplementives in order to highlight the fact that their context independent meanings need to be supplemented in context for them (...) to have semantic values relative to the context. Many philosophers and linguists think that there is a lot of contextual sensitivity in natural language that goes well beyond the pure indexicals and supplementives like ‘he’. Constructions/expressions that are good candidates for being contextually sensitive include: quantifiers, gradable adjectives including “predicates of personal taste”, modals, conditionals, possessives and relational expressions taking implicit arguments. It would appear that in none of these cases does the expression/construction in question have a context independent meaning that when placed in context suffices to secure a semantic value for the expression/construction in the context. In each case, some sort of supplementation is required to do this. Hence, all these expressions are supplementives in my sense. For a given supplementive, the question arises as to what the mechanism is for supplementing its conventional meanings in context so as to secure a semantic value for it in context. That is, what form does the supplementation take? The question also arises as to whether different supplementives require different kinds of supplementation. Let us call an account of what, in addition to its conventional meaning, secures a semantic value for a supplementive in context a metasemantics for that supplementive. So we can put our two questions thus: what is the proper metasemantics for a given supplementive; and do all supplementives have the same metasemantics? In the present work, I sketch the metasemantics I formulated for demonstratives in earlier work. Next, I briefly consider a number of other supplementives that I think the metasemantics I propose plausibly applies to and explain why I think that. Finally, I consider the prospects for extending the account to all supplementives. In so doing, I take up arguments due to Michael Glanzberg to the effect that supplementives are governed by two different metasemantics and attempt to respond to them. (shrink)

A self-fulfilling prophecy is, roughly, a prediction that brings about its own truth. Although true predictions are hard to fault, self-fulfilling prophecies are often regarded with suspicion. In this article, we vindicate this suspicion by explaining what self-fulfilling prophecies are and what is problematic about them, paying special attention to how their problems are exacerbated through automated prediction. Our descriptive account of self-fulfilling prophecies articulates the four elements that define them. Based on this account, we begin our critique by (...) showing that typical self-fulfilling prophecies arise due to mistakes about the relationship between a prediction and its object. Such mistakes—along with other mistakes in predicting or in the larger practical endeavor—are easily overlooked when the predictions turn out true. Thus we note that self-fulfilling prophecies prompt no error signals; truth shrouds their mistakes from humans and machines alike. Consequently, self-fulfilling prophecies create several obstacles to accountability for the outcomes they produce. We conclude our critique by showing how failures of accountability, and the associated failures to make corrections, explain the connection between self-fulfilling prophecies and feedback loops. By analyzing the complex relationships between accuracy and other evaluatively significant features of predictions, this article sheds light both on the special case of self-fulfilling prophecies and on the ethics of prediction more generally. (shrink)