Bird argues that Armstrong’s necessitarian conception of physical modality and laws of nature generates a vicious regress with respect to necessitation. We show that precisely the same regress afflicts Bird’s dispositional-monist theory, and indeed, related views, such as that of Mumford & Anjum. We argue that dispositional monism is basically Armstrongian necessitarianism modified to allow for a thesis about property identity.

Speech and thought about what the law is commonly function in practical ways, to guide or assess behavior. These functions have often been seen as problematic for legal positivism in the tradition of H.L.A. Hart. One recent response is to advance an expressivist analysis of legal statements (Toh), which faces its own, familiar problems. This paper advances a rival, positivist-friendly account of legal statements which we call “quasi-expressivist”, explicitly modeled after Finlay’s metaethical theory of moral statements. This consists in a (...) descriptivist, “rule-relational” semantics combined with a pragmatic account of the expressive and practical functions of legal discourse. We argue that this approach is at least as well-equipped as expressivism to explain the motivational and prescriptive features of “internal” legal statements, as well as a fundamental kind of legal disagreement, while being better positioned to account for various “external” uses of the same language. We develop this theory in a Hartian framework, and in the final part of the paper argue (particularly against Toh’s expressivist interpretation) that Hart’s own views in The Concept of Law are best reconstructed along such quasi-expressivist lines. (shrink)

This fourth article in a six-part series correlating Kant’s philosophy with the Yijing begins by summarizing the foregoing articles: both Kant and the Yijing’s 64 hexagrams (gua) employ “architectonic” reasoning to form a four-level system with 0+4+12+(4x12) elements, the fourth level’s four sets of 12 correlating to Kant’s model of four university “faculties”. This article explores the second twelvefold set, the law faculty. The “idea of reason” guiding this wing of the comparative analysis is immortality. Three of Kant’s “quaternities” correspond (...) to three sets of four gua in the Yijing: the fourfold nature of the soul in rational psychology (as substantial, simple, unified, spatially related) corresponds to gua 47, 6, 58, 10, respectively; the three “Definitive Articles” and fourth, “Secret Article”, in Perpetual Peace correspond to gua 16, 35,51, 21; and the four objective relations of law to duty in Metaphysics of Morals correspond to gua 45, 12, 17, 25. (shrink)

Legal philosophers and property scholars sometimes disagree over one or more of the following: the meaning of the word 'property,' the concept of property, and the nature of property. For much of the twentieth century, the work of W.N. Hohfeld and Tony Honoré represented a consensus around property. The consensus often went under the heading of property as bundle of rights, or more accurately as a set of normative relations between persons with respect to things. But by the mid-l 990s, (...) the consensus was under attack. Key figures in the attack were James Penner, a legal philosopher, and Thomas W. Merrill and Henry E. Smith, two highly regarded professors of property law. This article aims to repel the attack and argues for property as a set of normative relations between persons with respect to things. The positive case for this view of property pays special attention to the philosophy of language and the analysis of concepts. The positive case also maintains that the right to use and the power to transfer are as central to property as the right to exclude. It is possible that the virtues of Smith's modular theory of property differ from the virtues of a well-crafted bundle theory. Indeed, it may be the case that these two theories throw light on different features of property law and are not, save at the margin, competitors with each other. The label 'new essentialism' sometimes applied to the work of Penner, Merrill, and Smith seems inapt if property does not have an essence. Of course, they might refuse the label. (shrink)

A mythopoetic paradigm or perspective sees the world primarily as a dramatic story of competing personal intentions, rather than a system of objective impersonal laws. Asma argued that our contemporary imaginative cognition is evolutionarily conserved-it has structural and functional similarities to premodern Homo sapiens’s cognition. This article will outline the essential features of mythopoetic cognition or adaptive imagination, delineate the adaptive sociocultural advantages of mythopoetic cognition, explain the phylogenetic and ontogenetic mechanisms that give rise to human mythopoetic mind, show how (...) mythopoetic cognition challeng­es contemporary trends in cognitive science and philosophy, and recognize and outline empirical approaches for a new cognitive science of the imagination. (shrink)

Anscombe counsels us to dispense with those moral concepts that presuppose a divine law conception of ethics, among which she numbers the concepts of “moral obligation and moral duty, […] of what is morally right and wrong, and of the moral sense of ‘ought’.” Schopenhauer made a similar point more than a century earlier, though his critique implicates a narrower range of concepts. Through reflection on his accounts of right and wrong and of duty and obligation, this chapter attempts to (...) show that we can dispense with the imperative in ethics while retaining these notions, thus preserving a distinctively modern conception of morality. (shrink)

This paper argues that the new metaphysics of powers, also known as dispositional essentialism or causal structuralism, is an illusory metaphysics. I argue for this in the following way. I begin by distinguishing three fundamental ways of seeing how facts of physical modality — facts about physical necessitation and possibility, causation, disposition, and chance — are grounded in the world. The first way, call it the first degree, is that the actual world or all worlds, in their entirety, are the (...) source of physical modality. Humeanism is the best known such approach, but there are other less well-known approaches. The second way, the second degree, is that the source of physical modality lies in certain second-order facts, involving a relation between universals. Armstrong’s necessitarianism and other views are second-degree views. The third way, the third degree, holds that properties themselves are the source of physical modality. This is the powers view. I examine four ways of developing the third degree: relational constitution, graph-theoretic structuralism, dispositional roles, and powerful qualities. All these ways are either incoherent, or just disguised versions of the first-degree. The new metaphysics of powers is illusory. With the collapse of the third degree, the second degree, the necessitarian view of law, collapses as well. I end the paper with some reflections on the first degree, on the problem of explaining necessary connections between distinct existences, and on the dim prospects of holist ontology. (shrink)

More than a century before Anscombe counseled us to jettison concepts such as that of the moral ought, or moral law, Schopenhauer mounted a vigorous attack on such prescriptive moral concepts, particularly as found in Kant. In this chapter I consider the four objections that constitute this attack. According to the first, Kant begs the question by merely assuming that ethics has a prescriptive or legislative-imperative form, when a purely descriptive-explanatory conception such as Schopenhauer’s also presents itself as a possibility. (...) According to the second, Kant’s purportedly philosophical ethics is in fact a theological ethics in disguise, because the moral ought and its prescriptive cousins presuppose a divine lawgiver. According to the third, Kant’s conceptions of the moral law as a law of freedom, and of moral imperatives as categorical or unconditioned, involve him in contradictions. Finally, Schopenhauer objects that there can be no such thing as a moral ought because a binding ought or law must be understood to operate through appeals to self-interest, which stands in opposition to morality. I contend that these last three objections are sound and that the fourth in particular succeeds in confuting the prescriptivist conception of morality. (shrink)

From the school yard to the workplace, there’s no charge more damning than “you’re being unfair!” Born out of democracy and raised in open markets, fairness has become our de facto modern creed. The very symbol of American ethics—Lady Justice—wears a blindfold as she weighs the law on her impartial scale. In our zealous pursuit of fairness, we have banished our urges to like one person more than another, one thing over another, hiding them away as dirty secrets of our (...) humanity. In Against Fairness, polymath philosopher Stephen T. Asma drags them triumphantly back into the light. Through playful, witty, but always serious arguments and examples, he vindicates our unspoken and undeniable instinct to favor, making the case that we would all be better off if we showed our unfair tendencies a little more kindness—indeed, if we favored favoritism. Conscious of the egalitarian feathers his argument is sure to ruffle, Asma makes his point by synthesizing a startling array of scientific findings, historical philosophies, cultural practices, analytic arguments, and a variety of personal and literary narratives to give a remarkably nuanced and thorough understanding of how fairness and favoritism fit within our moral architecture. Examining everything from the survival-enhancing biochemistry that makes our mothers love us to the motivating properties of our “affective community,” he not only shows how we favor but the reasons we should. Drawing on thinkers from Confucius to Tocqueville to Nietzsche, he reveals how we have confused fairness with more noble traits, like compassion and open-mindedness. He dismantles a number of seemingly egalitarian pursuits, from classwide Valentine’s Day cards to civil rights, to reveal the envy that lies at their hearts, going on to prove that we can still be kind to strangers, have no prejudice, and fight for equal opportunity at the same time we reserve the best of what we can offer for those dearest to us. Fed up with the blue-ribbons-for-all absurdity of "fairness" today, and wary of the psychological paralysis it creates, Asma resets our moral compass with favoritism as its lodestar, providing a strikingly new and remarkably positive way to think through all our actions, big and small. (shrink)

Kant is often regarded as one of the founding fathers of modern liberal democracy. His political theory reaches its climax in the ground-breaking work, Perpetual Peace (1795), which sets out the basic framework for a world federation of states united by a system of international law. What is less well known is that two years earlier, in his Religion within the Bounds of Bare Reason (1793/1794), Kant had postulated a very different, explicitly religious path to the politics of peace: he (...) presents the idea of an “ethical community” as a necessary requirement for humanity to become “satisfactory to God”. While many recent scholars have noted the importance of Kant’s concept of the ethical community, few recognize the force of his argument that such a community is possible only if it takes the form of a church; as a result, the precise status of his proposal remains unclear and under-appreciated. He argues in Division One, Section IV, of Religion’s Third Piece that the idea of this community can become a reality only through a “church” that is characterized by four rational requirements: unity, integrity, freedom, and the changeability of all church rules except these four unchangeable marks. Prior to Section IV, Division One portrays this ethical community as having a political form, yet an essentially nonpolitical matter. He compares it with Jewish theocracy, but observes that the latter failed to be an ethical commonwealth because it was explicitly political. Whereas traditional theocracy replaces the political state of nature (which conforms to the law, “might makes right”) with an ethical state of nature (which conforms to the law that I call, “should makes good”), or attempts to synthesize them, non-coercive theocracy transcends this distinction through a new perspective: it unites humanity in a common vision of a divine legislator whose only law is inward, binding church members together like families, through the law of love. Whereas the legal rights supported by democracy and a system of international law can go a long way to prepare for world peace, Kant’s conviction is that it will be ultimately impossible without support from healthy religion. (shrink)

The traditional view according to which we adults tacitly consent to a state’s lawful actions just by living within its borders—the residence theory—is now widely rejected by political philosophers. According to the critics, this theory fails because consent must be (i) intentional, (ii) informed, and (iii) voluntary, whereas one’s continued residence within a state is typically none of these things. Few people intend to remain within the state in which they find themselves, and few realize that by remaining they are (...) consenting to the state’s lawful actions. In addition, the various obstacles standing in the way of us leaving the state render our remaining involuntary. Thus, the critics conclude, few if any people can be considered to have consented through their residence. I argue that these objections fail and that the residence theory remains a viable option, at least for those who are not committed incompatibilists. (shrink)

This second part of a two-part series exploring implications of the natural differences between the sexes for the cultural evolution of marriage considers how the institution of marriage might evolve, if Kant’s reasons for defending monogamy are extended and applied to a future culture. After summarizing the philosophical framework for making cross-cultural ethical assessments that was introduced in Part I and then explaining Kant’s portrayal of marriage as an antidote to the objectifying tendencies of sex, I summarize Kant’s reasons for (...) rejecting polygamy and for viewing monogamy as the only ethically acceptable form of marriage. Finally, I argue that if we apply Kantian principles to the real situation of marriage in many modern cultures, and if we wish to maintain a legitimate place for marriage in the future evolution of human culture, then the future evolution of marriage laws must recognize polyfidelity (i.e., plural marriages for both men and women) as being just as legitimate as monogamy. (shrink)

The Roman imperial Stoics were familiar with exile. This paper argues that the Stoics’ view of being a refugee differed sharply from their view of what is owed to refugees. A Stoic adopts the perspective of a cosmopolitēs, a “citizen of the world,” a rational being everywhere at home in the universe. Virtue can be cultivated and practiced in any locale, so being a refugee is an “indifferent” that poses no obstacle to happiness. Other people are our fellow cosmic citizens, (...) however, regardless of their language, race, ethnicity, customs, or country of origin. Our natural affinity and shared sociability with all people require us to help refugees and embrace them as welcome neighbors. Failure to do so violates our common reason, justice, and the gods’ cosmic law. (shrink)

Models are the coin of the realm in current philosophy of science, as they are in science itself, having replaced laws and theories as the primary strategy. Logical Positivism tried to erase the older neo-Kantian distinction between ideal constructions and reality. It returns in the case of models. Nowak’s concept of idealization pro- vided an alternative account of this issue. It construed model application as concretizations of hypotheses which improve by accounting for exceptions. This appears to account for physical law. (...) But it raises the problem of uniqueness: is the result unique, as physical law should be? Neo-Kantianism failed this test. Its solutions were circular justifications for claims of uniqueness. Nowak inherited the problem without resolving it. (shrink)

Immanuel Kant’s theory of justifiable resistance to authority is complex and, at times, appears to conflict with his own practice, if not with itself. He distinguishes between the role of authority in “public” and “private” contexts. In private—e.g., when a person is under contract to do a specific job or accepts a social contract with one’s government—resistance is forbidden; external behavior must be governed by policy or law. In contexts involving the public use of reason, on the other hand—e.g., when (...) a person is faced with a moral decision or is engaged in a philosophical dispute—the freedom of conscience sometimes requires resistance, especially in cases where other persons inappropriately attempt to usurp authority over matters that are rightfully up to the individual to decide. In texts such as Perpetual Peace, Kant looks forward to a political situation wherein no political resistance (e.g., in the form of war) would be necessary. Yet in Metaphysics of Morals, he argues that a citizen never has the right to revolt against one’s government, suggesting we must cooperate even with war. On a personal level, Kant openly praised both the American and the French revolutions; yet when his own writings on religion were deemed by the censor to have come into conflict with the king’s edict, Kant failed to resist the (arguably unjust) authority; instead, he gave up his (apparently public) right to free philosophical expression, promising never to write or speak on religion again during the king’s reign. I shall argue that a key to resolving these tensions lies in the principle that universities must promote a healthy, public “conflict” between philosophers and all “private” employments of reason. The only ground for disallowing private resistance, therefore, is the underlying presence of genuine philosophical resistance. (shrink)

The Roman imperial Stoics were familiar with exile. I argue that the Stoics’ view of being a refugee differed sharply from their view of what is owed to refugees. A Stoic adopts the perspective of a cosmopolitēs, a ‘citizen of the world’, a rational being everywhere at home in the universe. Virtue can be cultivated and practiced in any locale, so being a refugee is an ‘indifferent’ that poses no obstacle to happiness. But other people are our fellow cosmic citizens (...) regardless of their language, race, ethnicity, customs, or country of origin. Our natural affinity and shared sociability with all people require us to help refugees and embrace them as welcome neighbors. Failure to do so violates our common reason, justice, and the gods’ cosmic law. (shrink)

This paper begins the last instalment of a six-part project correlating the key aspects of Kant’s architectonic conception of philosophy with a special version of the Chinese Book of Changes that I call the “Compound Yijing”, which arranges the 64 hexagrams (gua) into both fourfold and threefold sets. I begin by briefly summarizing the foregoing articles: although Kant and the Yijing employ different types of architectonic reasoning, the two systems can both be described in terms of three “levels” of elements. (...) Starting at an unnumbered level devoid of any element (the tao or thing in itself), the system proceeds by elaborating a key fourfold distinction (or “quaternity”) on the first level, a twelvefold distinction on the second level, and twelve quaternities (grouped in four quadrants, each with a set of three quaternities) on the third level. Each set of three quaternities (i.e., each quadrant) on the third level corresponds to one of the four “faculties” of the university, as elaborated in Kant’s book, The Conflict of the Faculties. Previous papers have examined the correlations between three key quaternities that Kant defends in relation to each of three faculties (philosophy, theology, and law) and the 12 gua that correspond to that faculty in the Compound Yijing. The final step is to explore the fourth quaternity on the third level, the 12 gua corresponding to the medical faculty. The “idea of reason” in Kant’s metaphysics that guides this wing of the comparative analysis is freedom, and the ultimate purpose of this faculty of the university is to train doctors to care for people’s physical well-being, as free agents imbedded in nature. But this paper will focus only on the four gua that correspond to four basic concepts in Kant’s theory of medicine. The two quaternities in the “yin-yang” (medical) quadrant of the Compound Yijing that will be skipped here are as follows. First, Kant’s account of the idea of freedom itself, which gives rise to the area of traditional metaphysics known as rational cosmology, comes in the first Critique’s Dialectic, in the section on the Antinomy of Reason (CPR A405-567/B432- 595). There he examines four irresolvable issues: whether the world has a beginning in time; whether composite substances consist of simple parts; whether a causality of freedom operates in the natural world; and whether an absolutely necessary being exists. Later I will argue that these correspond to the quaternity consisting of gua 15, 22, 36, and 52. (shrink)

This chapter defends a single, fixed, definite answer to the question: Is there a logic that governs the unsayable? The proposed answer is: “Yes, and no. Or yes-but-not-yes. And/or yes-no.” Each component of this answer is examined and used to generate three laws of what I call “synthetic logic”, which correspond directly to the laws of classical (Aristotelian) logic: the law of contradiction (“A=-A”), the law of non-identity (“A≠A”), and the law of the included middle (“-(Av-A)”). We can talk about (...) the unsayable only by assuming that propositions constructed in accordance with these three alternative logical laws can be meaningful. (shrink)

The standard view about counterfactuals is that a counterfactual (A > C) is true if and only if the A-worlds most similar to the actual world @ are C-worlds. I argue that the worlds conception of counterfactuals is wrong. I assume that counterfactuals have non-trivial truth-values under physical determinism. I show that the possible-worlds approach cannot explain many embeddings of the form (P > (Q > R)), which intuitively are perfectly assertable, and which must be true if the contingent falsity (...) of (Q > R) is to be explained. If (P > (Q > R)) has a backtracking reading then the contingent facts that (Q > R) needs to be true in the closest P-worlds are absent. If (P > (Q > R)) has a forwardtracking reading, then the laws required by (Q > R) to be true in the closest P-worlds will be absent, because they are violated in those worlds. Solutions like lossy laws or denial of embedding won't work. The only approach to counterfactuals that explains the embedding is a pragmatic metalinguistic approach in which the whole idea that counterfactuals are about a modal reality, be it abstract or concrete, is given up. (shrink)

This is a review article based on William Franke's book, A Philosophy of the Unsayable. After contrasting standard "analytic" logic with its paradoxical alternative, "synthetic" logic, this article introduces three basic laws of synthetic logic that can help to clarify how it is possible to talk about the so-called "unsayable". Keeping these laws in mind as one reads a book such as Franke's enables one to understand the range of strategies one can employ in the attempt to use words to (...) evoke an experience of the unsayable. This article together with several others responding to Franke's book, and Franke's replies to the whole set of articles. (shrink)

Slavery harmed the slaves but not their descendants since slavery brought about their existence. The descendants gain the slaves’ claims via inheritance. However, collecting the inheritance-based claim runs into a number of difficulties. First, every descendant usually has no more than a portion of the slave’s claim because the claim is often divided over generations. Second, there are epistemic difficulties involving the ownership of the claim since it is unlikely that a descendant of a slave several generations removed would have (...) retained the claim of inheritance given the loss of wealth and disinheritance that often characterizes families. There are also problems in determining the amount of inheritance. This is in part because of the problems of calculating in the effects of offsets, especially crime-related offsets, which are owed by a significant portion of the descendants. Even if this inheritance claim can be established with sufficient confidence certain entities may not be asked to pay it. The federal government does not owe compensation since as a historical matter it permitted but did not cause enslavement. The beneficiaries of slavery do not owe compensation since merely receiving the benefit of an unjust activity does not by itself generate a debt of compensation. When combined these problems constitute an overwhelming case against reparations. (shrink)

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)

A legal system’s ‘official story’ is its shared account of the law’s structure and sources, which members of its legal community publicly advance and defend. In some societies, however, officials pay lip service to this shared account, while privately adhering to their own unofficial story instead. If the officials enforce some novel legal code while claiming fidelity to older doctrines, then which set of rules—if either—is the law? We defend the legal relevance of the official story, on largely Hartian grounds. (...) Hart saw legal rules as determined by social rules accepted by a particular community. We argue that this acceptance requires no genuine normative commitment; agreement or compliance with the rules might even be feigned. And this community need not be limited to an official class, but includes all who jointly accept the rules. Having rejected these artificial limits, one can take the official story at its word. (shrink)

In this paper, I set out a version of the Forfeiture Theory of Punishment. Forfeiture Theory: Legal punishment is just or permissible because offenders forfeit their rights.On this account, offenders forfeit their rights because they infringed on someone’s rights. My strategy is to provide a version of the Forfeiture Theory and then to argue that it survives a number of initially intuitive seeming objections, most having their origins in the recent work of David Boonin.

By focusing on the exchange between Descartes and Hobbes on how the self is related to its activities, Berkeley draws attention to how he and Hobbes explain the forensic constitution of human subjectivity and moral/political responsibility in terms of passive obedience and conscientious submission to the laws of the sovereign. Formulated as the language of nature or as pronouncements of the supreme political power, those laws identify moral obligations by locating political subjects within those networks of sensible signs. When thus (...) juxtaposed with Hobbes, Berkeley can be understood as endorsing a theologically inflected version of deontological ethics in which moral laws are linked directly to the constitution of the self. (shrink)

This provocative study presents philological, philosophical, and historical arguments that with the Greek term καθῆκον and its Latin equivalent officium the ancient Stoics invented a new concept that anticipated the modern notion of moral duty, for example, Pflicht in Kant. Scholars began to shift from translating kathēkon as "duty" to translating it as "appropriate or fitting action" in the late 1800s, according to Visnjic. The usage of the verb kathēkein in Greek literature prior to the Stoics suggests to him that (...) it described something prescribed by law, tradition, or decree. Visnjic argues that the Stoics did not conceive of kathekonta as rules of conduct but as prescriptions specific to situations. They held that there are some universal duties, like believing in the gods, believing that the gods are benevolent guardians of humanity, and being a good person, but that such duties offer no concrete, practical guidance for determining how to act. The most innovative contribution of this work is the collection and collation of pieces of practical advice scattered throughout extant sources to devise a four-stage process of deliberation. The two chapters on Kant seem comparatively cursory. On the whole, this book, at times daringly inventive, is occasionally unapologetically speculative. (shrink)

Many paradigmatic forms of animal rights and environmental activism have been classed as terrorism both in popular discourse and in law. This paper argues that the labelling of many violent forms of direct action carried out in the name of animal rights or environmentalism as ‘terrorism’ is incorrect. Furthermore, the claim is also made that even those acts which are correctly termed as terrorism are not necessarily wrongful acts. The result of this analysis is to call into question the terms (...) of public debate and the legitimacy of anti-terrorism laws targeting and punishing radical activism. (shrink)

In discussion on consciousness and the hard problem, there is an unquestioned background assumption, namely, our experience is stored in the brain. Yet Bergson (1896) argued that this very question, “Is experience stored in the brain?” is the critical issue in the problem of consciousness. His examination of then-current memory research led him, save for motor or procedural memory, to a “no” answer. Others, for example Sheldrake (2012), have continued this negative assessment of the research findings. So, has this assumption (...) actually been proven since Bergson? Do we know how experience is stored? Or that it is stored? Here, a recent review and model of memory is examined to see where this assumption actually stands. Again, the assessment will be that nothing has changed. The core of the problem, it will be argued, lies in two things: Firstly, the search for how/where experience is stored is motivated – rephrasing Bergson – in the classic metaphysic, a framework on space and time whose logic cannot be coherently, logically adhered to in attempting to explain how experience is stored. Secondly, the search generally assumes an inadequate theory of perception that is implicitly based in this classic metaphysic. If framed within Bergson’s model of perception and his temporal metaphysic, conjoined with J. J. Gibson’s model, the storage-search appears misguided from the start. (shrink)

We use Bayesian tools to assess Law’s skeptical argument against the historicity of Jesus. We clarify and endorse his sub-argument for the conclusion that there is good reason to be skeptical about the miracle claims of the New Testament. However, we dispute Law’s contamination principle that he claims entails that we should be skeptical about the existence of Jesus. There are problems with Law’s defense of his principle, and we show, more importantly, that it is not supported by Bayesian considerations. (...) Finally, we show that Law’s principle is false in the specific case of Jesus and thereby show, contrary to the main conclusion of Law’s argument, that biblical historians are entitled to remain confident that Jesus existed. (shrink)

Sometimes constitutions fail. The unprecedented election of Donald Trump, a populist insurgent who lacks the prior political experience or military service of all presidents before him, is such a sharp break in American historical experience that it raises questions as to whether something is deeply amiss with the constitutional order. Constitutional failure is not uncommon. A path-breaking global study of national constitutions shows that on average, they last only nineteen years. The U.S. Constitution is an uncommon outlier and, as such, (...) is accounted by many a long-running success story. But could a bell be tolling for American constitutionalism? In this Essay, I assess the meaning of Trump’s shocking rise for the future of our constitutional order. The shock, of course, was not the election of a Republican president. There have been many Republican presidents since Lincoln, each making their own distinctive contribution to the American tradition. Yet, there are good reasons to think this time around is different. The efficacy and, perhaps, stability of our constitutional order are in question, and we should try to understand why. (shrink)

Our question is this: What makes an act one of entrapment? We make a standard distinction between legal entrapment, which is carried out by parties acting in their capacities as (or as deputies of) law- enforcement agents, and civil entrapment, which is not. We aim to provide a definition of entrapment that covers both and which, for reasons we explain, does not settle questions of permissibility and culpability. We explain, compare, and contrast two existing definitions of legal entrapment to commit (...) a crime that possess this neutrality. We point out some problems with the extensional correctness of these definitions and propose a new definition that resolves these problems. We then extend our definition to provide a more general definition of entrapment, encompassing both civil and legal cases. Our definition is, we believe, closer to being extensionally correct and will, we hope, provide a clearer basis for future discussions about the ethics of entrapment than do the definitions upon which it improves. (shrink)

My aim in this paper is fairly modest. I obviously do not claim that there has never been or could never be an instance of irrational or fallacious appeals to quotations from canonical sources in the marxist tradition. Instead, I claim that the practice of using quotations from canonical sources is not, as such, irrational. If we understand the epistemological infrastructure of the practice -- the rational underpinnings of it -- we can grasp how these citations appeal to the presumptive (...) authoritativeness of formulations that condense or concisely convey the core of insights that emerged from learning processes that the intellectual tradition of marxism has already traversed. The rational underpinnings of the practice include, first, the neo-Hegelian idea that we can justify a view we now hold by rationally reconstructing the insight-motivated learning process from which it emerged, and second, the convention that these rational reconstructions do not have to be elaborated in each insistence, but can be invoked in a short-form way, such as by citing the name of a decision or a concise statement of it (like a short quotation), as is common in the epistemologically similar practice of precedential reasoning in common law juridical justification. No claim is true just because of who made it; but a claim might be presumptively authoritative in cases where it was made at the end of a learning process, which has not been overtaken by a change in the circumstances or further learning. (shrink)

Sen. John McCain was born a U.S. citizen and is eligible to be president. The most serious challenge to his status, recently posed by Prof. Gabriel Chin, contends that the statute granting citizenship to Americans born abroad did not include the Panama Canal Zone, where McCain was born in 1936. When Congress amended the law in 1937, he concludes, it was too late for McCain to be "natural born." Even assuming, however, that McCain's citizenship depended on this statute - and (...) ignoring his claim to citizenship at common law - Chin's argument may be based on a misreading. When the statutory language was originally adopted in 1795, it was apparently read to address all children born outside of the United States proper, which would include those born in the Canal Zone. Patterns of historical usage, early interpretations of the citizenship statutes, contemporaneous expressions of the statutes' purpose, and the actual application of the statutes to cases analogous to McCain's all confirm this understanding. More recently, the acquisition of America's outlying possessions lent plausibility to new interpretations of the law. But because the key language was never altered between 1795 and 1936, its original meaning was preserved intact, making John McCain a U.S. citizen at birth. (This paper is still a work in progress; comments and suggestions are greatly appreciated.). (shrink)

Some legal theorists say that legal entrapment to commit a crime is incoherent. So far, there is no satisfactorily precise statement of this objection in the literature: it is obscure even as to the type of incoherence that is purportedly involved. (Perhaps consequently, substantial assessment of the objection is also absent.) We aim to provide a new statement of the objection that is more precise and more rigorous than its predecessors. We argue that the best form of the objection asserts (...) that, in attempting to entrap, law-enforcement agents lapse into a form of practical incoherence that involves the attempt simultaneously to pursue contrary ends. We then argue that the objection, in this form, encompasses all cases of legal entrapment only if it is supplemented by appeal to the premise that law-enforcement agents have an absolute duty never to create crimes. (shrink)

In summary, Hellman’s book is well worth reading. It is powerful, well-written, and interesting and explains much of the prominent case law on discrimination. Her theory, however, is false because her explanation of wrongful discrimination fails to track a wrong-making feature. Her theory does not focus on a right-infringement in or unfair treatment of the person whom is discriminated against. It also does not focus on an incorrect attitude in the person who discriminates. These intuitively seem to exhaust the reasons (...) that make an act wrong because it wrongs someone. Her account of wrongful discrimination fails to identify the correct wrong-making feature. (shrink)

This well chosen collection of essays written by recognized scholars addresses many of the intriguing aspects concerning the controversy over meat consumption. These aspects include not only eating meat, but also hunting animals, breeding, feeding, killing, and shredding them for our use, buying meat, the economics of the meat industry, the understanding of predation and food webs in ecology, and the significance of animals for issues about nutrition, gender, wealth, and cultural autonomy. Dombrowski rightly notes that the contemporary debate regarding (...) philosophical vegetarianism has been profoundly shaped by the historical figures who have rejected or embraced the anthropocentrism entrenched in Western thought. Three anthropological-medical essays compare meat with vegetarian diets. Eight essays treat the recent philosophical debate over the moral status of animals and whether vegetarianism is obligatory. Several essays discuss religious views on meat-eating and vegetarianism. Three essays explore meat, patriarchy, and the exploitation of nature and animals with respect to race, gender, sexual orientation, and socioeconomic class. The last four essays debate how to understand predation, environmental ethics, and animal protection. This collection is a fine entrée for all readers of this journal, since the debate over meat must by now figure into every thinking person’s diet. (shrink)

How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since. Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, (...) when there are so many theories of law, each giving practice a different role? Why look to an official story, when on-the-ground practice may be confused or divided—or may even make the story ring false? And why take originalism as the official story, when so many scholars and judges seem to reject it? This Essay offers a response to each. To the extent that legal systems are features of particular societies, a useful theory will have to pay attention to actual social practice, including the aspects of legal practice we describe. This positive focus really can resolve a great many contentious legal disputes, as shared legal premises lead to conclusions that might surprise us or that ultimately establish one side in a dispute as correct. The most serious challenge to our view is the empirical one: whether originalism is or isn’t the official story of our law. Stripped of their jurisprudential confusion, though, the best competing accounts of our law seem to have far less supporting evidence than our own account. Focusing on social practice as it stands today turns out to direct our attention to the Founders and to the changes over time that their law has recognized. (shrink)

In order to understand the transmission of a disease across a population we will have to understand not only the dynamics of contact infection but the transfer of health-care beliefs and resulting health-care behaviors across that population. This paper is a first step in that direction, focusing on the contrasting role of linkage or isolation between sub-networks in (a) contact infection and (b) belief transfer. Using both analytical tools and agent-based simulations we show that it is the structure of a (...) network that is primary for predicting contact infection—whether the networks or sub-networks at issue are distributed ring networks or total networks (hubs, wheels, small world, random, or scale-free for example). Measured in terms of time to total infection, degree of linkage between sub-networks plays a minor role. The case of belief is importantly different. Using a simplified model of belief reinforcement, and measuring belief transfer in terms of time to community consensus, we show that degree of linkage between sub-networks plays a major role in social communication of beliefs. Here, in contrast to the case of contract infection, network type turns out to be of relatively minor importance. What you believe travels differently. In a final section we show that the pattern of belief transfer exhibits a classic power law regardless of the type of network involved. (shrink)

We respond to Stephen T. Davis’ criticism of our earlier essay, “Assessing the Resurrection Hypothesis.” We argue that the Standard Model of physics is relevant and decisive in establishing the implausibility and low explanatory power of the Resurrection hypothesis. We also argue that the laws of physics have entailments regarding God and the supernatural and, against Alvin Plantinga, that these same laws lack the proviso “no agent supernaturally interferes.” Finally, we offer Bayesian arguments for the Legend hypothesis and against (...) the Resurrection hypothesis. (shrink)

Atheists have tacitly conceded the field to theists in the area of philosophical cosmology, specifically, in the enterprise of explaining why the universe exists. The theistic hypothesis is that the reason the universe exists lies in God’s creative choice, but atheists have not proposed any reason why the universe exists. I argue that quantum cosmology proposes such an atheistic reason, namely, that the universe exists because it has an unconditional probability of existing based on a functional law of nature. This (...) law of nature (“the wave function of the universe”) is inconsistent with theism and implies that God does not exist. I criticize the claims of Alston, Craig, Deltete and Guy, Oppy and Plantinga that theism is consistent with quantum cosmology. (shrink)

In response to Stephen Davis’s criticism of our previous essay, we revisit and defend our arguments that the Resurrection hypothesis is logically incompatible with the Standard Model of particle physics—and thus is maximally implausible—and that it cannot explain the sensory experiences of the Risen Jesus attributed to various witnesses in the New Testament—and thus has low explanatory power. We also review Davis’s reply, noting that he evades our arguments, misstates their conclusions, and distracts the reader with irrelevancies regarding, e.g., (...) what natural laws are, what a miracle is, and how “naturalism” and “supernaturalism” differ as worldviews. Contrary to what Davis claims (even in his abstract), we do not argue that “if the Standard Model of particle physics is true, then the resurrection of Jesus did not occur and physical things can only causally interact with other physical things.” Davis distorts our claims and criticizes straw men of his own creation. (shrink)

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

I argue that there is methodological space for a functional explanation of the nature of law that does not commit the theorist to a view about the value of that function for society, nor whether law is the best means of accomplishing it. A functional explanation will nonetheless provide a conceptual framework for a better understanding of the nature of law. First I examine the proper role for function in a theory of law and then argue for the possibility of (...) a neutral functional theory, addressing issues raised by Leslie Green, Stephen Perry, Michael Moore and John Finnis. (shrink)

Stephen Law developed a challenge to theism, known as the evil-god challenge (Law (2010) ). The evil-god challenge to theism is to explain why the theist’s responses to the problem of evil are any better than the diabolist’s – who believes in a supremely evil god – rejoinders to the problem of good, when all the theist’s ploys (theodicy, sceptical theism, etc.) can be parodied by the diabolist. In the first part of this article, I extend the evil-god challenge (...) by showing that additional theist replies to the problem of evil (more theodicies, the privation view of evil, and others) also may be appropriated, with just as much plausibility, in support of the diabolist position. In the second part of the article, I defend the evil-god challenge against several objections. (shrink)

The papers of this special issue are the outcome of a two-­‐day conference entitled “The Second-­‐Person Standpoint in Law and Morality,” that took place at the University of Vienna in March 2013 and was organized by the ERC Advanced Research Grant “Distortions of Normativity.” -/- The aim of the conference was to explore and discuss Stephen Darwall’s innovative and influential second-­‐personal account of foundational moral concepts such as „obligation“, „responsibility“, and „rights“, as developed in his book The Second-­‐Person Standpoint: (...) Morality, Respect, and Accountability (Harvard University Press 2006) and further elaborated in Morality, Authority and Law: Essays in Second-­‐Personal Ethics I and Honor, History, and Relationships: Essays in Second-­‐Personal Ethics II (both Oxford University Press 2013). -/- With the second-­‐person standpoint Darwall refers to the unique conceptual normative space that practical deliberators and agents occupy when they address claims and demands to one another (and to themselves). The very first sentence of Darwall’s examination of the second-­‐personal conceptual paradigm summarizes the gist of the argument succinctly when he claims that “the second-­‐person standpoint [is] the perspective that you and I take up when we make and acknowledge claims on one another’s conduct and will.” (Darwall 2006, 3) The Second-­‐Person Standpoint reminds us that this perspective has been ignored for much too long and that it better take centre stage in any philosophical analysis of moral phenomena, in order to yield a satisfying account of morality as a social institution. The negative part of Darwall’s strategy is to show that neither a purely first-­‐personal approach (represented by Kant and contemporary Kantians), nor a third-­‐personal state-­‐of-­‐affairs-­‐perspective (represented by most varieties of contemporary consequentialism) are capable of accounting for the categorical bindingness characteristic of moral obligation. The latter feat can only be accomplished, and this is the positive part of Darwall’s argument, when those second-­‐ personal normative “felicity conditions” and conceptual presuppositions are acknowledged and spelled out that are already presupposed in every instance of issuing (putatively valid) claims and demands. It is especially second-­‐personal competence and second-­‐personal authority that are the bedrock of these normative conceptual presuppositions, without which engaging in any meaningful address would be impossible. Kantians and utilitarians alike have neglected this critical dimension of the normative landscape. -/- In addition to working out an original conception of moral obligation, the first eight chapters of The Second-­‐Person Standpoint articulate this fundamental insight with respect to a variety of traditional projects in ethical theory such as developing accounts of moral responsibility, rights, dignity, and autonomy. In this context, special emphasis is to be awarded, on the one hand, to Darwall’s refreshing second-­‐personal interpretation of Strawson’s influential account of reactive attitudes and moral responsibility and, on the other, to his historically well-­‐informed reconstruction of Samuel Pufendorf’s often neglected version of an enlightened theistic voluntarism concerning moral authority. Darwall dedicates the second part of The Second-­‐Person Standpoint to the urgent question: how should one respond to the sceptical challenge that expresses utter indifference to the second-­‐person standpoint, including all its multifarious normative presuppositions and implications? What commits us to all this? It is at this point that Darwall, firstly, refines his criticisms of the Kantian, first-­‐personal, paradigm of normativity and emphasizes that only if one already incorporates the second-­‐personal conceptual apparatus into a Kantian analysis of moral obligation is the latter going to yield a convincing account. Secondly, and this certainly is one of the highlights of Darwall’s theory, the Second-­‐Person Standpoint employs themes from Fichte’s philosophy of right in order to strengthen the case for the inescapability of taking up the second-­‐person standpoint of moral obligation. In his contribution for this special issue Darwall further develops his diagnosis that Fichte’s thought offers in many respects a more promising, since more second-­‐personal, foundation of morality than, for example, Kant’s. -/- By now, the impact of Darwall’s second-­‐person standpoint theory has far transcended the confines of contemporary debates on moral obligation. Darwall has put to use the second-­‐personal apparatus to critical engagements with Joseph Raz’s theory of legal authority and Derek Parfit’s convergence arguments for his recent Triple Theory of moral wrongness. The constant theme that unifies all these diverse applications remains the one so impressively presented in The Second-­‐Person Standpoint: without paying attention to the “interdefinable” and “irreducible” circle of (four) foundational second-­‐ personal concepts (valid demand, practical authority, second-­‐personal reason, and accountability), neither superior epistemic status (Raz) nor the identification of optimific states of affairs (Parfit) are potent enough sources to generate anything close to the authority relationships that underlie the idea involved in obligating ourselves and one another. Given all of the above, it comes as no surprise that Darwall reserves his strongest sympathies for a specific ethical theory, namely contractualism. Our commitment to equal basic second-­‐personal authority, that Darwall arrives at through his Fichtean rectification of the Kantian project, leads him to the endorsement of a contractualist paradigm in the spirit of broadly Rawls and Scanlon. -/- . (shrink)

In the December 2015 Issue of the Police Journal Sam Poyser and Rebecca Milne addressed the subject of miscarriages of justice. Cold case investigations can address some of these wrongs. The salient points for attention are those just before his sudden death: Milligan was appointed Private Secretary to Jonathan Aitken, the then Minister of Arms in the Conservative government in 1994. The known facts are as follows: 1. Stephen David Wyatt Milligan was found deceased on Tuesday 8th February 1994 (...) at his Chiswick, West London house where he lived alone. His body was found by his secretary Vera Taggart who was told by Julie Kirkbride where a spare key to his London house was kept and who decided to go to his house that day because he was not answering his telephone. Police said he had made one last telephone call on Saturday evening at 9.00pm. 2. Stephen David Wyatt Milligan had been the elected Member of Parliament (‘MP’) for Eastleigh in Hampshire since 1992. 3. The important topics this MP was addressing in 1994 at the time of his death included: (i) rail privatization plans and the impact through job losses on communities, especially his own constituency of Eastleigh; (ii) arms dealings with Saudi Arabia, especially with his previous intelligence gathered as an economics journalist for esteemed publications; (iii) the UK military industry; (iv) homosexuality among senior government Ministers, as revealed by British footballer Fasanu; (v) personal relationship and planned marriage to his fiancée (Julie Kirkbride) who at the time was a political journalist. 4. Stephen Milligan was also appointed as Parliamentary Private Secretary to Jonathan Aitken, Arms Minister and this position must have required that he came ‘up to speed’ on international arms trade and indeed its relation to bribery and corruption across jurisdictions. Milligan’s experience and knowledge as a former high-level political and economics journalist must have been of huge benefit to government minister Jonathan Aitken who was later imprisoned for perjury. 5. Regarding Stephen Milligan’s death in 1994, the Guardian newspaper in their immediate obituary said that ‘The death of one of the government's most outspoken and loyal supporters will pose a stiff electoral test for the Tories to surmount. He was on the left of the Tory party - he had even had a brief flirtation with the SDP when it was formed - and was a noted Euro-enthusiast… the death of one of the government's most outspoken and loyal supporters will pose a stiff electoral test for the Tories to surmount. Regarding Stephen Milligan’s sudden and unexpected death in 1994, MP David Willetts (Conservative, Havant) said in March 2015, in his address in the House of Commons. ‘…The inevitable ups and downs and triumphs and disasters of politics are among the great features of this place. There are colleagues in all parts of the House who are tolerant and understanding. There are friendships that keep the downs as well as the ups of politics in perspective. Having entered the House in 1992, I think particularly of two good friends, Judith Chaplin and Stephen Milligan, who both died within two years of being elected; that loss stayed with me for a long time...’ 6. On 28 February 2000, in the House of Commons, at Column 106, Mr Mike Hancock (Portsmouth) said, on the deaths of Michael Colvin and of Stephen Milligan MP: ‘I knew Michael Colvin for nearly 30 years, from when he was first elected to Hampshire county council. During my time as leader of that council, he and the late former Member of Parliament for Eastleigh, Stephen Milligan, were usually the only Members of Parliament who readily supported the council when necessary. Michael Colvin supported many ventures in the county of Hampshire. He will be missed here, in his constituency, and in Europe, and I stress that Hampshire has lost a staunch supporter. I am sure that the county will at some stage want to record its regret at his death and its deepest appreciation of the part that he played in its life....’ -/- Mike Hancock had, like Stephen Milligan, served on the Select Committee on Defence. It is interesting that he mentioned Stephen Milligan’s support as MP for Eastleigh when Milligan had only been so appointed a couple of years before his sudden death, as compared to 30 years of support from Mike Colvin. 7. Mr Andrew Robathan (for Blaby) said in the House of Commons Hansard Debates on 27 January1997, (Column 62) (on the registering of sex offenders): ‘I remember the death of my honourable friend Stephen Milligan, who represented Eastleigh. The press reports of the time stated that each Metropolitan police station had a police officer in the pay of newspapers. I do not know whether that is true, but I am aware that the police are not renowned for being entirely secure with their information…’ This statement is mischievous and it has been demonstrated time and time again, as being untrue, especially during the recent press inquiry leading to the four-volume Leveson Report, published in November 2012, into phone hacking and the ethics and culture of the UK media, pursuant to section 26 of the Inquiries Act 2005, and ordered by the House of Commons to be printed on 29 November 2012, ISBN: 9780102981063, by the Stationery Office Limited on behalf of the Controller of Her Majesty’s Stationery Office. In Volume 4 of the 2012 Leveson Report, chapter 4 concluded on the Press Complaints Commission (‘PCC’) and its effectiveness and revealed that the PCC does not initiate its own investigations other than those ‘needed to head off criticism of the press or self-regulation- or to accept complaints from third parties across the board and on a transparent basis… and the report states that ‘the resources of the police are limited’ in terms of being able to fully inspect the Press and media reports. (shrink)

Stephen Jay Gould argued that replaying the ‘tape of life’ would result in radically different evolutionary outcomes. Recently, biologists and philosophers of science have paid increasing attention to the theoretical importance of convergent evolution—the independent origination of similar biological forms and functions—which many interpret as evidence against Gould’s thesis. In this paper, we examine the evidentiary relevance of convergent evolution for the radical contingency debate. We show that under the right conditions, episodes of convergent evolution can constitute valid natural (...) experiments that support inferences regarding the deep counterfactual stability of macroevolutionary outcomes. However, we argue that proponents of convergence have problematically lumped causally heterogeneous phenomena into a single evidentiary basket, in effect treating all convergent events as if they are of equivalent theoretical import. As a result, the ‘critique from convergent evolution’ fails to engage with key claims of the radical contingency thesis. To remedy this, we develop ways to break down the heterogeneous set of convergent events based on the nature of the generalizations they support. Adopting this more nuanced approach to convergent evolution allows us to differentiate iterated evolutionary outcomes that are probably common among alternative evolutionary histories and subject to law-like generalizations, from those that do little to undermine and may even support, the Gouldian view of life. (shrink)

Stephen Schulhofer's book, Unwanted Sex: The Culture of Intimidation and the Failure of Law, provides a carefully constructed and powerful case for rape-law reform. His effort is distinctive in three ways: (1) it takes the basic question of reform to be the moral one of determining which sexual interactions ought to be the subject of the criminal law, (2) it takes the right of sexual autonomy to serve as the basis for any successful legal reform, and (3) it makes (...) a philosophically sophisticated case for his own reform proposal. Schulhofer's efforts should be of great interest to philosophers, especially feminist legal philosophers, interested in questions that bear direct relevance to the relationships between autonomy, coercion, and consent as constrained by the requirements of due process. His careful and scrupulously fair discussion of influential reform recommendations set the stage for his own position (discussed in section VII), a critical evaluation thereof (sections VII and VIII), and sympathetic recommendations in VIII and IX. Of special value here is Schulhofer's attempt to extend his analysis of coerced consent to include certain "offers" made in contexts (e.g., the workplace) characterized by significant power differentials between persons. Section IX offers suggestions, generally friendly to Schulhofer's overall reform proposals, for identifying wrongful sexual interactions occurring in certain institutional or professional contexts. (shrink)

This article is a response to Stephen Law's article ‘The evil-god challenge’. In his article, Law argues that if belief in evil-god is unreasonable, then belief in good-god is unreasonable; that the antecedent is true; and hence so is the consequent. In this article, I show that Law's affirmation of the antecedent is predicated on the problem of good (i.e. the problem of whether an all-evil, all-powerful, and all-knowing God would allow there to be as much good in the (...) world as there is), and argue that the problem of good fails. Thus, the antecedent is unmotivated, which renders the consequent unmotivated. Law's challenge for good-god theists is to show that good-god theism is not rendered unreasonable by the problem of evil in the same way that evil-god theism is rendered unreasonable by the problem of good. Insofar as the problem of good does not render belief in evil-god unreasonable, Law's challenge has been answered: since it is not unreasonable to believe in evil-god (at least for the reasons that Law gives) it is not unreasonable to believe in good-god. Finally, I show that – my criticism aside – the evil-god challenge turns out to be more complicated and controversial than it initially appears, for it relies on the (previously unacknowledged) contentious assumption that sceptical theism is false. (shrink)