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

A familiar post-Kantian criticism contends that Kant enslaves sensibility under the yoke of practical reason. Friedrich Schiller advanced a version of this criticism to which Kant publicly responded. Recent commentators have emphasized the role that Kant’s reply assigns to the pleasure that accompanies successful moral action. In contrast, I argue that Kant’s reply relies primarily on the sublime feeling that arises when we merely contemplate the moral law. In fact, the pleasures emphasized by other recent commentators depend on this sublime (...) feeling. These facts illuminate Kant’s views regarding the relationship between morality, freedom, and the development of moral feelings. (shrink)

According to the objection from positive duties, Kant's Formula of Universal Law is flawed because it cannot be used to derive any affirmative moral requirements. This paper offers a response to that objection and proposes a novel way to derive positive duties from Kant's formula. The Formula of Universal Law yields positive duties to adopt our own perfection and others’ happiness as ends because we could not rationally fail to will those ends as universal ends.

Ever since Hegel famously objected to Kant’s universalization formulations of the Categorical Imperative on the grounds that they are nothing but an empty formalism, there has been continual debate about whether he was right. In this paper I argue that Hegel got things at least half-right: I argue that even if negative duties (duties to omit actions or not to adopt maxims) can be derived from the universalization formulations, positive duties (duties to commit actions or to adopt maxims) cannot. (...) The paper is divided into three main sections. In the first, I set out the procedures generally accepted among Kantians for deriving positive duties from the universalization formulations. In the second, I set out the arguments from section 1 in more detail and explain why they do not work. In the third, I examine a strategy that might be used to supplement the arguments from section 2 and I argue that it also does not work. (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.

According to the standard reading of Kant's formula of universal law (FUL), positive duties can be derived from FUL. In this article, I argue that the standard reading does not work. In the first section, I articulate FUL and what I mean by a positive duty. In the second section, I set out an intuitive version of the standard reading of FUL and argue that it does not work. In the third section, I set out a more rigorous (...) version of the standard reading of FUL and argue that even this more rigorous version does not work. (shrink)

As Alexander D’Entrees observed over forty years ago, the case for natural law “is not an easy one to put clearly and convincingly.” Furthermore, even if one can make the case for natural law in a clear and convincing manner, one should not expect such an argument to be clear and convincing for all time. Instead, the case for natural law must be an ongoing argument, addressing itself perpetually to the needs of the time as these needs shift and change. (...) In short, the case for natural law “must needs appear in a different light according to the angle in time or in place from which it is looked at.” With this precept in mind, I seek to examine Thomas Aquinas’s natural law teaching on the legislation of virtue in light of concerns that are especially acute from the perspective of contemporary liberalism. (shrink)

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

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

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

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

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

David Armstrong accepted the following three theses: universals are immanent, laws are relations between universals, and laws govern. Taken together, they form an attractive position, for they promise to explain regularities in nature—one of the most important desiderata for a theory of laws and properties—while remaining compatible with naturalism. However, I argue that the three theses are incompatible. The basic idea is that each thesis makes an explanatory claim, but the three claims can be shown to run in a problematic (...) circle. I then consider which thesis we ought to reject and suggest some general lessons for the metaphysics of laws. (shrink)

The revisionist critique of conventional just war theory has undoubtedly scored some important victories. Walzer’s elegantly unified defense of combatant legal equality and noncombatant immunity has been seriously undermined. This critical success has not, however, been matched by positive arguments, which when applied to the messy reality of war would deprive states and soldiers of the permission to fight wars that are plausibly thought to be justified. The appeal to law that is sought to resolve this objection by casting (...) it as a practical concern, a pragmatic worry about implementation, which while germane to debates over the laws of war, need not undermine our convictions in the fundamental principles the revisionists advocate. This response is inadequate. Revisionists have not shown that soldiers should obey the laws of war, in practice, when they conflict with their other moral reasons – our worries about application remain intact. Moreover, a theory of war that offers only an account of the laws of war, and a set of fundamental principles developed in abstraction from feasibility constraints, is radically incomplete. We need to know how to apply those fundamental principles, and whether, when applied, they lead to defensible conclusions. Only two options seem to remain. Perhaps the revisionists’ arguments for their chosen fundamental principles are sufficiently compelling that we should stick with them, and accept their troubling conclusions – in other words, accept pacifism. Alternatively, we need to revise our fundamental principles, so that when applied they yield conclusions that we can more confidently endorse. -/- Though it does not save the revisionist view from the responsibility dilemma and cognate objections, the appeal to law does raise an important, and previously inadequately theorized, question – or, rather, resurrects a neglected topic, discussed in depth by historical just war theorists such as Grotius and Vattel. There are good grounds for distinguishing the laws of war from the morality of war, and for adjusting the former to accommodate predictable noncompliance, that should not impact on our account of the latter. Nonetheless, I have argued that there are some profound moral insights underlying both combatant legal equality and noncombatant immunity: specifically, we cannot infer from a combatant’s side having not satisfied jus ad bellum that he may not justifiably use lethal force; and other things equal, it is more wrongful to harm a nonliable noncombatant than to harm a nonliable combatant. (shrink)

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

Archytas of Tarentum, a contemporary and associate of Plato, was a famous Pythagorean, mathematician, and statesman of Tarentum. Although his works are lost and most of the fragments attributed to him were composed in later eras, they nevertheless contain valuable information about his thought. In particular, the fragments of On Law and Justice are likely based on a work by the early Peripatetic biographer Aristoxenus of Tarentum. The fragments touch on key themes of early Greek ethics, including: written and unwritten (...) laws; freedom and self-sufficiency; moderation of the emotions and cultivation of virtues; equality and the competence of the majority to participate in government; criticism of “rule by an individual”; a theory of the ideal “mixed constitution”; distributive and corrective justice and punishment, and of the rule of law. The fragments also contain one of the only positive accounts of democracy in ancient Greek philosophy. (shrink)

The idea of natural law has a long history. It has had different meanings for different people and continues to occupy intellectual engagements as to the connotations of the expression ‘natural law’ in diverse and different contexts. This requires delving deep into the hoarypast and analyzing the gradual development of the idea of natural law through the ages. Understanding natural law necessitates exploring its relation with positive law, its application, and, notably, the import of the word ‘natural’ in the (...) expression ‘natural law’. Be that as it may, there is no denying the fact that there is an element of exclusivity in natural law that has kept it alive and going across generations. Even some of the jurists who adhered to the principles and tenets of legal positivism have shown an inclination towards the principles of natural law, especially as regards the relation between law and morality. It has survived the tests of time. The present paper seeks to explicate the various dimensions of natural law and explore its growth application. (shrink)

The counterintuitive implications of law necessitarianism pose a far more serious threat than its proponents recognize. Law necessitarians are committed to scientific essentialism, the thesis that there are metaphysically necessary truths which can be known only a posteriori. The most frequently cited arguments for this position rely on modal intuitions. Rejection of intuition thus threatens to undermine it. I consider ways in which law necessitarians might try to defend scientific essentialism without invoking intuition. I then consider ways in which law (...) necessitarians who accept the general reliability of intuition might try to explain away the intuitions which conflict with their theory. (shrink)

In the first part of this paper, I argue against the view that laws of nature are contingent, by attacking a necessary condition for its truth within the framework of a conception of laws as relations between universals. I try to show that there is no independent reason to think that universals have an essence independent of their nomological properties. However, such a non-qualitative essence is required to make sense of the idea that different laws link the same universals in (...) different possible worlds. In the second part, I give a positive argument for the necessity of at least some laws of nature, by showing with the example of a paradigmatic law of association that it consists in an internal relation between two universals which are determinables of the same class of determinates, where this relation is essential to both. Furthermore, I show that the necessity of laws of association could be accommodated within David Lewis' Humean metaphysics, but that it is incompatible with David Armstrong's combinatorialism. (shrink)

I show how the two great Humean ways of understanding laws of nature, projectivism and systems theory, have unwittingly reprised developments in metaethics over the past century. This demonstration helps us explain and understand trends in both literatures. It also allows work on laws to “leap- frog” over the birth of many new positions, the nomic counterparts of new theories in metaethics. However, like leap-frogging from agriculture to the internet age, it’s hardly clear that we’ve landed in a good place. (...) My reactionary advice is to return to Hume and work on the central insights that motivated Humeanism about modality in the first place. When updated with contemporary insights, there we will find an attractive naturalistic theory of laws, or so I’ll argue, and along the way we’ll see how projectivism and systems theory both get something right about this overall theory. (shrink)

The law of political economy is a contentious ideological field characterised by antagonistic relations between scholarly positions which tend to be either affirmative or critical of capitalism. Going beyond this schism, two particular features appear as central to the law of political economy: the first one is the way it epistemologically seeks to handle the distinction between holism and differentiation, i.e., the extent to which it sees society as a singular whole which is larger than its parts, or, rather, as (...) a mere collection of parts. Different types of legal and political economy scholarship have given different types of answers to this question. The second feature of the law of political economy is the way in which it conceives of the relation between hierarchical and spontaneous dimensions of society, i.e., between firms and the market, or between public institutions and public opinion. The two distinctions can, however, be overcome through a third-way, emphasising the strategic role of law in mediating between holism and differentiation and hierarchy and spontaneity. This is demonstrated through a historical re-construction of the evolution of corporatist, neo-corporatist, and governance-based institutional set-ups of political economy. (shrink)

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

My goal in this paper is to show that it is not the case that positive duties can be derived from Kant’s so-called universalizability tests. I begin by explaining in detail what I mean by this and distinguishing it from a few things that I am not doing in this paper. After that, I confront the idea of a maxim contradictory, a concept that is advanced by many com- mentators in the attempt to derive positive duties from the (...) universalizability tests. I ex- plain what a maxim contradictory is and how the concept is used to derive positive duties. Then I argue that the notion of a maxim contradictory presupposes an objectionable form of maxim realism. I move from there to the idea of a maxim contrary and the deliberative field. These two ideas are used in tandem by commentators who do not appeal to maxim contradictories. I explain how these concepts are used to derive positive duties and then I argue that there is a systematic error in the derivations that enables one to see that they cannot work. (shrink)

In this paper I analyze the difficult question of the truth of mature scientific theories by tackling the problem of the truth of laws. After introducing the main philosophical positions in the field of scientific realism, I discuss and then counter the two main arguments against realism, namely the pessimistic metainduction and the abstract and idealized character of scientific laws. I conclude by defending the view that well-confirmed physical theories are true only relatively to certain values of the variables that (...) appear in the laws. (shrink)

In his 2009 encyclical letter Caritas in Veritate, Pope Benedict XVI calls for a deeper, theological and metaphysical evaluation of the category of “relation” to achieve a proper understanding of the human being’s “transcendent dignity.” For some contemporary thinkers, this position might seem to be hopelessly paradoxical or even incoherent. After all, many contemporary thinkers are apt to believe that the human creature can have “transcendent dignity” only if the being and goodness of the human creature is not conditioned by (...) or dependent upon any relation or relatedness to anything else, including the natural environment. This chapter seeks to show that apparent paradoxes in Benedict XVI’s statement will begin to disappear if one resists the rather understandable temptation to interpret his thought by relying on presuppositions borrowed from contemporary ethical theories. More specifically, this chapter aims to show that Benedict XVI’s teachings— embedded as they are within a rich tradition of Catholic “natural law” thinking—are importantly distinguishable from contemporary utilitarian and deontological views. Furthermore, this chapter seeks to demonstrate that Benedict XVI’s “natural law” account offers an intellectually defensible alternative to contemporary modes of environmental thinking. (shrink)

A rapidly growing body of scholarship embraces virtue jurisprudence, a series of (often ad hoc) attempts to incorporate the philosophical tradition of virtue ethics into legal theory. Broadly understood, virtue ethics describes an approach to moral questions that emphasizes the importance of developing and embodying various virtues, often as manifestations of human flourishing. Scholars typically contrast virtue ethics with deontological and consequentialist moral theories, tracing virtue-centered analysis to ancient Greek philosophers, and in particular to Aristotle. Virtue ethics has experienced a (...) revival over the past 65 years; but, long before that, it proved especially influential in Catholic moral thought, particularly through the work of Aquinas. Perhaps relatedly, scholars have seized on virtue jurisprudence to defend a range of politically conservative positions, such as originalist constitutional interpretation and the propriety of utilizing the law to regulate ostensibly “private” immoralities. This Article reveals the radically underappreciated progressive promise of virtue jurisprudence. Virtue jurisprudence requires no religious commitments whatsoever, but a strong version entails acceptance of the moral significance of developing one’s character—both within and without the law. On a compelling understanding of the virtues, rejecting a state of perpetual disadvantage under the law is a meaningful marker of the virtue of self-respect, and a repudiation of the vice of servility that would otherwise be imposed by the legal system itself. Thus, contrary to the predominant tenor of research on the subject, virtue jurisprudence can ground significant resistance to—and even defiance of—the law. In making this argument, the Article also draws novel connections between virtue jurisprudence and literature on (inter alia) race, feminism, and sexual orientation to reveal the unnoticed potential of virtue jurisprudence to push forward work in those and related areas. At a time when massive and widespread protests across the United States reflect a groundswell of support for overturning certain long-standing, legally-ingrained, systemic disadvantages of people of color, many might be surprised to learn that virtue jurisprudence can serve as a potent theoretical ally. (shrink)

In this paper I am going to raise a problem for recent attempts to derive positive duties from Kant’s universalizability tests. In particular, I argue that these recent attempts are subject to reductio and that the most obvious way of patching them renders them impracticable. I begin by explaining the motivation for these attempts. Then I describe how they work and begin my attack. I conclude by considering some patches.

Amongst the entities making up social reality, are there necessary relations whose necessity is not a mere reflection of the logical connections between corresponding concepts? We distinguish three main groups of answers to this question, associated with Hume and Adolf Reinach at opposite extremes, and with Searle who occupies a position somewhere in the middle. We first set forth Reinach’s views on what he calls ‘material necessities’ in the realm of social entities. We then attempt to show that Searle has (...) not identified a sustainable position somewhere between the Humean and the Reinachian extremes. This is because Searle’s position is threatened by circularity, and to steer clear of that danger it must incorporate at least some elements of Reinach’s essentialism. (shrink)

In 2019, several US states passed “heartbeat” bills. Should such bills go into effect, they would outlaw abortion once an embryonic heartbeat can be detected, thereby severely limiting an individual’s access to abortion. Many states allow health care professionals to refuse to provide an abortion for reasons of conscience. Yet heartbeat bills do not include a positive conscience clause that would allow health care professionals to provide an abortion for reasons of conscience. I argue that this asymmetry is unjustified. (...) The same criteria that justify protecting conscientious refusals to provide abortion also justify protecting positive conscientious appeals regarding abortion. Thus, if the law provides legal exemptions for health care professionals who, as a matter of conscience, refuse to provide abortions where it is legal, it should also provide exemptions for health care professionals who, as a matter of conscience, feel obligated to provide abortions where it is illegal. (shrink)

This qualitative research aims to explore and unravel the theory of natural law within its Greek context and its influence on political thought, particularly addressing the need to counteract the damages of tyranny and the cyclical succession of regimes, as articulated by Plato. This study reveals that the concept of natural law predates Stoics and it is rooted within the pre-Socratic natural philosophy. The study exposes that Aristotelian ethics and politics are rooted in the concept of natural law, ultimately giving (...) rise to the Aristotelian "mixed form of government" and laying the groundwork for republicanism. In extending this inquiry, I attempt to identify a parallel argument in ancient Iran, investigating the presence of natural law and its impact on the political landscape. The concept of natural law, emphasizing the alignment of social and political affairs with nature's rules, played a significant role in shaping the Indo-Iranian communities. The Sanskrit term rta and its Avestan equivalent, Aša, denote this foundational concept. However, the ascendancy of Zoroastrianism and its new theology led to the consolidation of all Indo-Iranian gods into the singular omnipotent deity, Ahura Mazdā. Ahura Mazdā, along with its prophet Zaraθuštra, possessed the authority to govern both earthly life and the afterlife. The exclusive attributes of Ahu and Ratu empowered God and its messenger to formulate and enact laws ensuring a place in heaven. Consequently, Divine Law and positive law became intricately intertwined within a unified legal framework. This divine law, sanctioned by God and enforced by the King, diverges from the Greek perspective, particularly that of Aristotle, where tyranny is seen as a deviation from the ideal political order. In the Iranian context, tyranny is synonymous with God's representation, sharing the holiness and regal attributes of a King, who, in the Iranian and Avestan sense, enjoys God's blessing as Xvarənah or Faer-e Izadi. The intertwining of law and authority of the King precludes the possibility of an independent legal sovereignty apart from the King’s authority. The monotheistic tenets of Zaraθuštra’s religion, officially established in the 4th century AD as the Religion of the State, solidify this integrated system. Consequently, the coexistence of republicanism or any mixed form of government within Iran becomes unattainable under the influence of this monotheistic doctrine. (shrink)

Leuridan (2011) questions whether mechanisms can really replace laws at the heart of our thinking about science. In doing so, he enters a long-standing discussion about the relationship between the mech-anistic structures evident in the theories of contemporary biology and the laws of nature privileged especially in traditional empiricist traditions of the philosophy of science (see e.g. Wimsatt 1974; Bechtel and Abrahamsen 2005; Bogen 2005; Darden 2006; Glennan 1996; MDC 2000; Schaffner 1993; Tabery 2003; Weber 2005). In our view, Leuridan (...) misconstrues this discussion. His weak positive claim that mechanistic sciences appeal to generalizations is true but uninteresting. His stronger claim, that all causal claims require laws, is unsupported by his arguments. Though we proceed by criticizing Leuridan’s arguments, our greater purpose is to embellish his arguments in order to show how thinking about mechanisms enriches and transforms old philosophical debates about laws in biology and provides new insights into how generalizations afford prediction, explanation and control. (shrink)

In this article, I discuss the Protestant contribution to the modern concept of autonomy on the basis of an analysis of John Calvin's moral theology. I show that Calvin affirms our incapacity to know and want what is morally good, as expressed by natural law. Such incapacity is compensated for by the biblical mandates that, according to Calvin, should be incorporated into the positive legislation of Christian republics. In view of all this, I conclude that Calvin is far from (...) the Kantian idea of autonomy which defines our Modernity. (shrink)

In this paper I review three different positions on the wave function, namely: nomological realism, dispositionalism, and configuration space realism by regarding as essential their capacity to account for the world of our experience. I conclude that the first two positions are committed to regard the wave function as an abstract entity. The third position will be shown to be a merely speculative attempt to derive a primitive ontology from a reified mathematical space. Without entering any discussion about nominalism, I (...) conclude that an elimination of abstract entities from one’s ontology commits one to instrumentalism about the wave function, a position that therefore is not as unmotivated as it has seemed to be to many philosophers. (shrink)

In this paper we apply the popular Best System Account of laws to typical eternal worlds – both classical eternal worlds and eternal worlds of the kind posited by popular contemporary cosmological theories. We show that, according to the Best System Account, such worlds will have no laws that meaningfully constrain boundary conditions. It’s generally thought that lawful constraints on boundary conditions are required to avoid skeptical arguments. Thus the lack of such laws given the Best System Account may seem (...) like a severe problem for the view. We show, however, that at eternal worlds, lawful constraints on boundary conditions do little to help fend off skeptical worries. So with respect to handling these skeptical worries, the proponent of the Best System Account is no worse off than their competitors. (shrink)

This chapter centers around law's capacity to constitute practical reasons. In discussing this theme, consideration is given to law's artifactual character. The discussion falls into two main parts. In Section 1, I critically examine a skeptical line of thought about law's capacity to constitute reasons for action, which draws, in part, on law's artifactuality. I argue for a somewhat less skeptical (but still qualified) stance, according to which the fact that a legal directive has been issued can (notwithstanding the artifactuality (...) involved) be a reason for action, yet one that is underpinned by bedrock values which (under certain conditions and constraints) law is apt to serve. In Section 2, I consider whether, and in what sense, law can acquire an even more 'robust' status as a source of practical reasons. I focus particularly on Joseph Raz's position about the normative force of (legitimate) legal authority and on an alternative position I have proposed and advocated elsewhere. (shrink)

A growing body of work in free speech theory is interested in the nature of counterspeech, i.e. speech that aims to counteract the effects of harmful speech. Counterspeech is usually defined in opposition to legal responses to harmful speech, which try to prevent such speech from occurring in the first place. In this paper we challenge this way of carving up the conceptual terrain. Instead, we argue that our main classificatory division, in theorising responses to harmful speech, should be between (...) pro-discursive and anti-discursive responses. Some legal responses to harmful speech, so we argue, make a positive discursive contribution in their own right. That is, legal restrictions on harmful speech can have a function that is importantly similar to speech that aims at countering the effects of harmful speech. (shrink)

In this paper I explore Kant’s critical discussions of the topic of miracles (including the important but neglected fragment from the 1780s called “On Miracles”) in an effort to answer the question in the title. Along the way I discuss some of the different kinds of “laws” in Kant’s system, and also the argument for his claim that, even if empirical miracles do occur, we will never be in a good position to identify instances of them. I conclude with some (...) tentative remarks about the notorious suggestion that intelligible finite agents, too, might have some sort of influence over the laws of nature. The goal throughout is to show that exploring Kant’s answer to a traditional question in philosophical theology can deepen our understanding of his metaphysics and epistemology of nature generally. (shrink)

Laws of nature seem to take two forms. Fundamental physics discovers laws that hold without exception, ‘strict laws’, as they are sometimes called; even if some laws of fundamental physics are irreducibly probabilistic, the probabilistic relation is thought not to waver. In the nonfundamental, or special, sciences, matters differ. Laws of such sciences as psychology and economics hold only ceteris paribus – that is, when other things are equal. Sometimes events accord with these ceteris paribus laws (c.p. laws, hereafter), but (...) sometimes the laws are not manifest, as if they have somehow been placed in abeyance: the regular relation indicative of natural law can fail in circumstances where an analogous outcome would effectively refute the assertion of strict law. Many authors have questioned the supposed distinction between strict laws and c.p. laws. The brief against it comprises various considerations: from the complaint that c.p. clauses are void of meaning to the claim that, although understood well enough, they should appear in all law-statements. These two concerns, among others, are addressed in due course, but first, I venture a positive proposal. I contend that there is an important contrast between strict laws and c.p. laws, one that rests on an independent distinction between combinatorial and noncombinatorial nomic principles.2 Instantiations of certain properties, e.g., mass and charge, nomically produce individual forces, or more generally, causal influences,3 in accordance with noncombinatorial.. (shrink)

In this paper I challenge the commonly held view that Plato acknowledges and accepts the possibility of akrasia in the Laws. I offer a new interpretation of the image of the divine puppet in Book 1 - the passage often read as an account of akratic action -- and I show that it is not intended as an illustration of akrasia at all. Rather, it provides the moral psychological background for the text by illustrating a broader notion of self-rule as (...) a virtuous condition of the soul (and lack of self-rule as a vicious condition). I examine key discussions in the Laws in order to show how Plato makes use of this broader notion of self-rule throughout the dialogue, and I argue that nothing Plato says in the Laws commits him to the possibility of akrasia. One significant consequence of my interpretation of the puppet passage is that it avoids the need to posit developmentalism in Plato's late views about the embodied human soul, as some recent commentators have done: the moral psychology of the Laws, on my reading, is not incompatible with the Republic's tripartite theory of the soul. (shrink)

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)

In Eichmann in Jerusalem , Hannah Arendt struggled to defend the possibility of judgment against the obvious problems encountered in attempts to offer legally valid and morally meaningful judgments of those who had committed crimes in morally bankrupt communities. Following Norrie, this article argues that Arendt’s conclusions in Eichmann are equivocal and incoherent. Exploring her perspectival theory of judgment, the article suggests that Arendt remains trapped within certain Kantian assumptions in her philosophy of history, and as such sees the question (...) of freedom in a binary way. The article argues that Adorno’s philosophy of freedom provides the resources to diagnose and overcome Arendt’s shortcomings. Adorno’s position provides a way of embracing the antinomical character of judgment, by emphasising the need for elements of reason and nature in the phenomenon of freedom. In Adorno’s lights, judgment becomes an attempt to express a ‘spirit of solidarity’ with the tragic status of the potentially free but actually unfree subject of modernity. (shrink)

Kafka's work provoked more than three decades of interpretations before Wagenbach provided information showing that Kafka was quite familiar with the work of Brentano and his Prague followers, including their unique conceptions of natural law, ethical concepts, and human acquaintance with them. Kafka took a lively interest in discussions in this Prague circle, and The Trial may without violence be read as a deliberate illustration for issues in philosophy of law as they would have been understood within this circle. This (...) does not require that it be read as a reflection of Kafka's personality, nor does it require that he accepted Brentano's views. Wagenbach demonstrated Kafka's familiarity with unique conceptions, in the work of Brentano and his Prague followers, of natural law and ethics. Issues involved in these conceptions are cogently illustrated in The Trial. K. is tried for violating a law which is no positive law but a necessary condition for all positive law since all positive laws imply that they ought to be obeyed. Brentano adamantly rejected all forms of nativism. The opposite of 'natural' in the phrase 'natural law' is not 'acquired' but 'conventional.' Acquaintance with natural norms is entirely acquired: persons having no such acquaintance can exist; K. is such a person. Natural norms, have a cognizable inherent correctness; any other norms oblige only through being authoritatively decreed. Conventional guilt or innocence is subject to influence. K.'s quest for a person to exert such influence on his behalf is evidence of his guilt. K. is unaware that absolute guilt is possible. In the Prometheus myth related by Plato's Protagoras, a sense of justice and right is necessary for politically organized society. Without insight into the natural sanction for correct positive laws, citizens cannot fulfill the duty rationally to choose positive laws: citizens will wrong one another, cities perish, humankind will be threatened. The myth gives important clues to the imagery of the parable "Before the Law." Every authentic act of willing requires that something be desired for its own sake. Since there is a plurality of intrinsic goods, authentic action requires recognizing the chosen action to be better than its alternatives. Acquaintance with good, evil, better, and worse is acquired, Brentano insisted, only by perceiving certain affects to be correct. Like judgments, affects are either blind or evident. Basic moral concepts arise like all others from perception. K. could become innocent by acquiring the lacking concepts. Then, actual acquittal would be just despite his guilt when arrested. His trial tests whether he is likely to experience intrinsically correct emotions. Guilt would be objective, independent of any finding by the Court. K.'s guilt entails his lacking any such concept of absolute guilt. He is convinced that guilt depends entirely on the Court, is altogether a matter of authority. This is K.'s delusion concerning his relation to the Court and the Law, the delusion illustrated by the legend, "Before the Law.". (shrink)

This paper applies a very traditional position within Natural Law Theory to Cyberspace. I shall first justify a Natural Law approach to Cyberspace by exploring the difficulties raised by the Internet to traditional principles of jurisprudence and the difficulties this presents for a Positive Law Theory account of legislation of Cyberspace. This will focus on issues relating to geography. I shall then explicate the paradigm of Natural Law accounts, the Treatise on Law, by Thomas Aquinas. From this account will (...) emerge the structure of law and the metaphysics of justice. I shall explore those aspects of Cyberspace which cause geography to be problematic for Positive Law Theory and show how these are essential, unavoidable and beneficial. I will then apply Aquinas’s structure of law and metaphysics of justice to these characteristics. From this will emerge an alternative approach to cyberlaw which has no problem with the nature of Cyberspace as it is but treats it as a positive foundation for new legal developments. (shrink)

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

I shall argue that when Hume refers to the laws of dynamics, he tacitly assumes a mechanism. Nevertheless, he remains agnostic on whether the hidden micro-constitution of bodies is machinelike. Hence this article comes to the following conclusion. Hume is not a full-blown mechanical philosopher. Still his position on dynamic laws and his concept of causation instantiate a tacitly mechanical understanding of the interactions of bodies.

An influential position in the philosophy of biology claims that there are no biological laws, since any apparently biological generalization is either too accidental, fact-like or contingent to be named a law, or is simply reducible to physical laws that regulate electrical and chemical interactions taking place between merely physical systems. In the following I will stress a neglected aspect of the debate that emerges directly from the growing importance of mathematical models of biological phenomena. My main aim is to (...) defend, as well as reinforce, the view that there are indeed laws also in biology, and that their difference in stability, contingency or resilience with respect to physical laws is one of degrees, and not of kind . (shrink)

Apart from his critique of Kant, Maimon’s significance for the history of philosophy lies in his crucial role in the rediscovery of Spinoza by the German Idealists. Specifically, Maimon initiated a change from the common eighteenth-century view of Spinoza as the great ‘atheist’ to the view of Spinoza as an ‘acosmist’, i.e., a thinker who propounded a deep, though unorthodox, religious view denying the reality of the world and taking God to be the only real being. I have discussed this (...) aspect of Maimon’s philosophy in other places, and though the topic of the current paper has an interesting relation to certain doctrines of Spinoza, I will not develop this issue here. Neither of these two issues -- Maimon’s criticism of Kant or his original interpretation of Spinoza -- was considered by Maimon as his main contribution to philosophy. There is little doubt that if Maimon were asked to point out his single most important innovation he would have picked his doctrine of the Principle of Determinability [Satz der Bestimmbarkeit]. Regarding this doctrine Maimon writes: ... [T]he principle of determinability laid down in this work is a principle of all objectively real thought, and consequently of philosophy as a whole too. All the propositions of philosophy can be derived from, and be determined by it [woraus sich alle Sätze herleiten und wodurch sie sich bestimmen lassen]. … I have made available a supreme principle of all objectively real thought, viz., the principle of determinability... and have established as the ground of the whole of pure philosophy -- a principle which, if it is ever grasped, will, I hope, withstand every scrutiny. These claims may strike the reader as somewhat presumptuous, to say the least. But, if we pay attention to the last sentence of the passage, we can see that Maimon doubts whether his great finding will ever be understood. It is not unlikely that in this phrase (“wenn er nur einmal eingesehen werden wird”) Maimon was reacting to his own repeatedly unsuccessful attempts to explain the principle. The fate of Maimon’s principle has not been much better in the few works written on Maimon’s philosophy, and though almost all commentators agree that the principle of determinability is the linchpin of the positive philosophy Maimon was trying to develop, we do not yet have a clear explanation of this principle, or of the reason why Maimon assigns such importance to it. Recently, Oded Schechter developed an excellent reading of this principle, and in most aspects my view agrees with his (primarily, in its rejecting the attempt to explain the principle as a version of Leibniz’s predicate-in-subject [Praedicatum inest subjecto] containment thesis). My paper consists of two parts. The first is expository in nature. In this part, I spell out briefly the main aspects of Maimon’s principle of determinability and its aims. In the second part, I examine Maimon’s surprising claim that once we accept the principle of determinability, we have to deny the possibility of two subjects sharing the same predicate. Maimon provides several proofs for this highly counterintuitive claim, and I will try to clarify and evaluate these proofs. (shrink)

In this paper, I present a way in which John Rawls’s original position thought experiment can be brought closer to nationalism. The social science laws can be taken from a nation’s heritage.

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed. This theory has three important implications for the role (...) of history in law. First, whether and how past law matters today is a question of current law, not of history. Second, applying that current law may often require deference to historical expertise, but for a more limited inquiry: one that looks specifically at legal doctrines and instruments, interprets those instruments in artificial ways, and makes use of evidentiary principles and default rules when the history is obscure. Third, ordinary legal reasoning already involves the application of old law to new facts, an inquiry that might other-wise seem daunting or anachronistic. Applying yesterday’s “no vehicles in the park” ordinance is no less fraught — and no more so — than applying Founding-era legal doctrines. (shrink)

The de Morgan laws characterize how negation, conjunction, and disjunction interact with each other. They are fundamental in any semantics that bases itself on the propositional calculus/Boolean algebra. This paper is primarily concerned with the second law. In English, its validity is easy to demonstrate using linguistic examples. Consider the following: (3) Why is it so cold in here? We didn’t close the door or the window. The second sentence is ambiguous. It may mean that I suppose we did not (...) close the door or did not close the window, but I am not sure which. This `I am not sure which’ reading is irrelevant to us because it has disjunction scoping over negation. But the sentence may equally well mean (and indeed this is the preferred reading) that we didn’t close the door and did not close the window. This `neither’ reading bears out de Morgan law (2). (shrink)