Recent divine command theorists make a serious and impressive case that a sophisticated divine command theory has significant metaethical advantages and can adequately meet traditional objections, such as the Euthyphro problem. I survey the attempt sympathetically with a view to explaining how the divine command theory can deal with traditional objections while delivering on metaethical desiderata, such as providing an account of ethical objectivity. I argue, however, that to the extent that a divine command (...) theory succeeds, an ideal observer theory can do equally well. Once the divine command theory is rendered immune to Euthyphro-related objections, we will have all the machinery needed to show that an ideal observer theory can provide the same metaethical advantages, without supposing the existence of a divine commander. Other things being equal, ontological simplicity favors the ideal observer theory. (shrink)

I reply to criticisms of the divine command theory with an eye to noting the relation of ethics to an ontological ground. The criticisms include: the theory makes the standard of right and wrong arbitrary, it traps the defender of the theory in a vicious circle, it violates moral autonomy, it is a relic of our early deontological state of moral development. I then suggest how Henry Veatch's view of good as an ontological feature of the (...) world provides a context in which the divine command theory can be reasonably justified. (shrink)

This article presents a critical reevaluation of the thesis—closely associated with H. L. A. Hart, and central to the views of most recent legal philosophers—that the idea of state coercion is not logically essential to the definition of law. The author argues that even laws governing contracts must ultimately be understood as “commands of the sovereign, backed by force.” This follows in part from recognition that the “sovereign,” defined rigorously, at the highest level of abstraction, is that person or entity (...) identified by reference to game theory and the philosophical idea of “convention” as the source of signals with which the subject population has become effectively locked, as a group, into conformity. (shrink)

Law is traditionally related to the practice of command and hierarchy. It seems that a legal rule should immediately establish a relation between a superior and an inferior. This hierarchical and authoritharian view might however be challenged once the phenomenology of the rule is considered from the internal point of view, that is, from the stance of those that can be said to “use” rather than to “suffer” the rules themselves. A practice oriented approach could in this way open (...) up a more liberal, and also somehow less parochial and ideological, road for legal theory. This is – it is argued in the paper – the programme, or better, the promise we can find in Herbert Hart’s main work, The Concept of Law. The article tries to render this promise more transparent while, nonetheless, not eschewing the blind sides of its narrative and argumentative strategy. (shrink)

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

Shakespeare's works present intriguing explorations of law and legal theory. They help demonstrate the flaws in command-theory positivism, natural law theory and prediction theory accounts of the law. This is a simultaneously-published abbreviated version of a longer article published in Acta Iuridica Olomucensia in 2010.

In the TACITUS project for using commonsense knowledge in the understanding of texts about mechanical devices and their failures, we have been developing various commonsense theories that are needed to mediate between the way we talk about the behavior of such devices and causal models of their operation. Of central importance in this effort is the axiomatization of what might be called commonsense metaphysics. This includes a number of areas that figure in virtually every domain of discourse, such as granularity, (...) scales, time, space, material, physical objects, shape, causality, functionality, and force. Our effort has been to construct core theories of each of these areas, and then to define, or at least characterize, a large number of lexical items in terms provided by the core theories. In this paper we discuss our methodological principles and describe the key ideas in the various domains we are investigating. (shrink)

Margaret Gilbert’s work on sociality covers a wide range of topics, and as she puts it “addresses matters of great significance to several philosophical specialties – including ethics, epistemology, political philosophy, philosophy of science, and philosophy of law – and outside philosophy as well” (Gilbert 2013, p. 1). Herein I argue that Mark Greenberg’s recent call to eliminate the problem of legal normativity is well motivated. Further, I argue that Gilbert’s work on joint commitment, and more specifically obligations of joint (...) commitment, allows us to move beyond the problem of legal normativity while cashing out H.L.A. Hart’s thesis that moral and legal obligations are distinct. (shrink)

Theories of social norms frequently define social norms in terms of individuals’ beliefs and preferences, and so afford individual beliefs and preferences conceptual priority over social norms. I argue that this treatment of social norms is unsustainable. Taking Bicchieri’s theory as an exemplar of this approach, I argue, first, that Bicchieri’s framework bears important structural similarities with the command theory of law; and second, that Hart’s arguments against the command theory of law, suitably recast, reveal (...) the fundamental problems with Bicchieri’s framework. I then draw on Hart’s critique to develop and defend an alternative approach, arguing that we should conceive of social norms as the norms internal to a “socially sanctioned representational practice.” This approach makes social norms conceptually independent of individuals’ beliefs and preferences by locating them within social practices that transcend their individual participants, structuring the social landscape even before individuals form their own beliefs and preferences. (shrink)

Divine command theories come in several different forms but at their core all of these theories claim that certain moral statuses exist in virtue of the fact that God has commanded them to exist. Several authors argue that this core version of the DCT is vulnerable to an epistemological objection. According to this objection, DCT is deficient because certain groups of moral agents lack epistemic access to God’s commands. But there is confusion as to the precise nature and significance (...) of this objection, and critiques of its key premises. In this article, I try to clear up this confusion and address these critiques. I do so in three ways. First, I offer a simplified general version of the objection. Second, I address the leading criticisms of the premises of this objection, focusing in particular on the role of moral risk/uncertainty in our understanding of God’s commands. And third, I outline four possible interpretations of the argument, each with a differing degree of significance for the proponent of the DCT. (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)

Legal philosophy dates to the Ancient Greek Philosophers, and it continues to be a vigorously debated subject due to the fact that there does not exist a legal philosophy that is beyond reapproach that encapsulates law’s origins or purpose. This paper will introduce a new legal philosophy, which I have termed instinctualism. -/- Instinctualism is the idea that law originates from human instinct. Human beings are born with certain natural capacities that they learn to utilize as they mature. Examples include (...) speaking, walking, associating, and interacting with others, and practicing faith in a divine being, the state, or some other source of inspiration and hope. Human beings don’t think about the potential illegalities of speaking their minds, moving from one place to another, or engaging in conversation with their friends or associates unless they are indoctrinated to do so. Rather, human beings do these things because they have instinctual desires and the knowledge to do so. Other rights and laws such as freedom of the press are the product of peoples’ instinctual rights. For example, as people learn to speak, they instinctually share information and news about their inner circles or communities. If taken a step further, one begins to discuss an organized press. Knowledge and understanding of laws, such as those limiting certain types of speech, i.e., hate speech, must be taught and learned; it is not instinctual. This paper will introduce a subset of the most influential legal philosophies of different eras in human intellectual development, beginning with those of Ancient Greece. It will proceed to describe the shortcomings of those philosophies before introducing instinctualism as an alternative. After defining instinctualism, I will proceed to discuss how it addresses the shortcomings of other legal philosophies. Next, I will introduce rights guaranteed to the citizens of four prominent countries via relevant sources of primary law for each of those countries. Finally, I will close by reviewing the main arguments in the paper and discussing future research that I will undertake to buttress this paper’s arguments. (shrink)

Legal philosophy dates to the Ancient Greek Philosophers, and it continues to be a vigorously debated subject due to the fact that there does not exist a legal philosophy that is beyond reapproach that encapsulates law’s origins or purpose. This paper will introduce a new legal philosophy, which I have termed instinctualism. -/- Instinctualism is the idea that law originates from human instinct. Human beings are born with certain natural capacities that they learn to utilize as they mature. Examples include (...) speaking, walking, associating, and interacting with others, and practicing faith in a divine being, the state, or some other source of inspiration and hope. Human beings don’t think about the potential illegalities of speaking their minds, moving from one place to another, or engaging in conversation with their friends or associates unless they are indoctrinated to do so. Rather, human beings do these things because they have instinctual desires and the knowledge to do so. Other rights and laws such as freedom of the press are the product of peoples’ instinctual rights. For example, as people learn to speak, they instinctually share information and news about their inner circles or communities. If taken a step further, one begins to discuss an organized press. Knowledge and understanding of laws, such as those limiting certain types of speech, i.e., hate speech, must be taught and learned; it is not instinctual. -/- This paper will introduce a subset of the most influential legal philosophies of different eras in human intellectual development, beginning with those of Ancient Greece. It will proceed to describe the shortcomings of those philosophies before introducing instinctualism as an alternative. After defining instinctualism, I will proceed to discuss how it addresses the shortcomings of other legal philosophies. Next, I will introduce rights guaranteed to the citizens of four prominent countries via relevant sources of primary law for each of those countries. Finally, I will close by reviewing the main arguments in the paper and discussing future research that I will undertake to buttress this paper’s arguments. (shrink)

Recent debates in political theory display a renewed interest in the problem of judgment. This article critically examines the different senses of judgment that are at play in Jürgen Habermas’ theory of law. The article offers a new critical reading of Habermas’ account of the legitimacy of law, and a revisionary interpretation of the reconstructive approach to political theory that underpins it. Both of these are instrumental to an understanding of what is involved in judging the legitimacy (...) of law that is richer than has been recognized thus far by both critics and defenders of Habermas. (shrink)

Mark Murphy argues that the property identity version of divine command theory, coupled with the doctrine that God has freedom in commanding, violates the supervenience of the moral on the nonmoral. In other words, they permit two situations exactly alike in nonmoral facts to differ in moral facts. I give three arguments to show that a divine command theorist of this sort can consistently affirm moral supervenience. Each argument contends that there are always nonmoral differences between worlds (...) with different divine commands. If there are such nonmoral differences, then there’s no conflict between divine command theory and moral supervenience. (shrink)

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)

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

The theory of speech acts put forward by Adolf Reinach in his "The A Priori Foundations of the Civil Law" of 1913 rests on a systematic account of the ontological structures associated with various different sorts of language use. One of the most original features of Reinach's account lies in hIs demonstration of how the ontological structure of, say, an action of promising or of commanding, may be modified in different ways, yielding different sorts of non-standard instances of the (...) corresponding speech act varieties. The present paper is an attempt to apply this idea of standard and modified instances of ontological structures to the realm of judgement and cognition, and thereby to develop a Reinachian theory of how intentionality is mediated through language in acts of thinking and speaking. (shrink)

Brian Z. Tamanaha has written extensively on realism in jurisprudence, but in his Realistic Theory of Law (2018), he uses "realism" in a commonplace way to ground a rough outline of legal history. While he refers to his method as genealogical, he does not acknowledge the complex tensions in the development of the philosophical use of that term from Nietzsche to Foucault, and the complex epistemological issues that separate them. While the book makes many interesting points, the methodological concerns (...) outweigh them in the overall assessment of the value of the work. (shrink)

The link between seen and unseen, matter and spirit, flesh and soul was always presumed, but never clarified enough, leaving room for debates and mostly controversies between the scientific domains and theologies of a different type; how could God, who is immaterial, have created the material world? Therefore, the logic of obtaining a result on this concern is first to see how religions have always seen the ratio between divinity and matter/universe. In this part, the idea of a world personality (...) is implied by many, so that nature itself was transformed into a person ; others have seen within the universe/the world a Spirit ruling all, connecting all and bending all to God’s commands. In a way or another, every culture has gifted the universe/nature with the capability of ruling all, seeing everything and controlling, even determining facts by connecting all together with a Great Spirit. What is this Great Spirit of all and where it resides? With the analogy of human body in relation to his Spirit we will try to figure out a place or vehicle for the Spirit to dwell the body, and the Great Spirit the matter. The Christianity names this linkage between God and matter as ‘the created grace of God’, which indwells matter and helps the Creator move and transform things. Is there any scientific argument to sustain such assertion? Can we argue somehow that God’s voice makes matter vibrate from within the way it can recombine primer elements into giant stars to the human body? If so, what should be the ratio between theology and science on this issue and with these assertions? How could God command to matter to bring things and beings out of it and what were the material leverages that was supposed to be operated to accomplish His will? However, if we can assume that God resides in the universe – as a whole, His body, or as in its very fabric – can we also figure out how is this even possible, without transforming our explanation into a pantheistic and immanent exclusive one? Through these ‘divine leverages within matter’ theory, there is no need for questioning evolutionism, creationism, pantheism, deism and many other cosmological hypotheses any longer. (shrink)

Christian von Ehrenfels was a student of both Franz Brentano and Carl Menger and his thinking on value theory was inspired both by Brentano’s descriptive psychology and by the subjective theory of economic value advanced by Menger, the founder of the Austrian school of economics. Value, for Ehrenfels, is a function of desire, and we ascribe value to those things which we either do in fact desire, or would desire if we were not convinced of their existence. He (...) asserts that the needed theoretical understanding of values is to be achieved by generalizing economic laws of valuation to apply to value in general. The law of marginal utility, for example, is a law to the effect that the n+1st sample of a good which I receive is ceteris paribus less valuable than the nth sample (imagine that the samples in question are, for example, a series of identical ham sandwiches). The essay describes how Ehrenfels provides on this basis an account of the different types of values, both intrinsic and non-intrinsic. It outlines also Ehrenfels views on the problem of interpersonal value-comparisons and on the struggle for survival between different values of different types. (shrink)

Many philosophers have criticized John Rawls’s Law of Peoples. However, often these criticisms take it for granted that the moral conclusions drawn in A Theory of Justice are superior to those in the former book. In my view, however, Rawls comes to many of his 'conclusions' without too many actual inferences. More precisely, my argument here is that if one takes Rawls’s premises and the assumptions made about the original position(s) seriously and does in fact think them through to (...) their logical conclusions, both 'A Theory of Justice' and 'The Law of Peoples' have abysmally counterintuitive and immoral implications. To wit, if the members in the original position think, as Rawls suggests,that their society is closed and they will have no interaction with outsiders, and if, furthermore, they are self-interested and concerned with the basic structure of their own society, than there is absolutely no reason for them to use the terms “persons” or “least advantaged” in the formulation of the two principles. Rather, they will use the terms “citizens of our society” and “least advantaged of our society” instead. But thus revised, the principles of justice imply that the genocide or the enslavement of outsiders is unobjectionable. I will consider attempts to block this conclusion and demonstrate that they all fail. The Law of Peoples, moreover, faces similar problems. (shrink)

This paper sheds light on Kant’s notion of autonomy in his moral philosophy by considering Kant’s critique of the rationalist theories of morality that Kant discussed in his lectures on practical philosophy from the 1760s to the time of the Groundwork. The paper first explains Kant’s taxonomy of moral theories and his perspective on the history of ethics. Second, it considers Kant's arguments against the two main variants of ‘rationalism’ as he construes it, that is, perfectionism and theological voluntarism, pointing (...) out the similarities to previous criticisms. Third, the paper argues that Kant’s discussion of the 'rationalist' views does not amount to an unqualified dismissal, but to an attempt at working out a novel rationalist position. Kant’s criticisms of rationalist views suggest that his project emerges from the failures of previous rationalism, with the aim to work out a rationalist view that can account for moral obligation by integrating insights from the theological conception. The combination of perfectionism and theological views yields the basic outline of the idea of autonomy, consisting in the lawgiving function of a rational will as a key to the legislation of a necessary law. (shrink)

This Article argues that a particular political theory underlies the judicial interpretation of ‘equality before the law’. The Canadian Courts at the date of writing have elaborated two tests for the signification of ‘equality before the law’. The Article traces the two tests to the utilitarian political theory outlined by John Stuart Mill. The one test sets out the ‘greatest happiness of the greatest number’ or ‘social interests’ as the criterion for adjudicating equality. The second test identifies the (...) reasonable relationship of an alleged statutory classification vis-à-vis the statutory purpose. The Article offers an alternative approach based upon democratic theory. Examples of the two tests and the alternative approach are drawn from judicial constitutional interpretations in the USA and Canada. (shrink)

Mozi and George Berkeley are philosophers who are not often put into conversation. However, I argue that comparing them can shed some light on the relationship between certain philosophical positions and their resulting moral philosophies. Specifically, I will draw attention to the way that their lack of interest in an appearance-reality distinction and in "essence" gives rise to a tension between consequentialism and divine command theory. These similarities exist despite the fact that Mozi and Berkeley otherwise have quite (...) distinct views. For example, Mozi's dao-centered theoretical orientation leads him to assume that the world simply is as it is given through our senses, whereas Berkeley holds that the world is... (shrink)

Property-identical divine-command theory (PDCT) is the view that being obligatory is identical to being commanded by God in just the way that being water is identical to being H2O. If these identity statements are true, then they express necessary a posteriori truths. PDCT has been defended in Robert M. Adams (1987) and William Alston (1990). More recently Mark C. Murphy (2002) has argued that property-identical divine-command theory is inconsistent with two well-known and well-received theses: the free- (...) class='Hi'>command thesis and the supervenience thesis. I show that Murphy's argument is vitiated by mistaken assumptions about the substitutivity of metaphysical identicals in contexts of supervenience. The free-command thesis and the supervenience thesis therefore pose no serious threat to PDCT. (Published Online August 11 2004). (shrink)

This book is the first comprehensive study of the meaning and measure of enforceability. While we have long debated what restraints should govern the conduct of our social life, we have paid relatively little attention to the question of what it means to make a restraint enforceable. Focusing on the enforceability of legal rights but also addressing the enforceability of moral rights and social conventions, Mark Reiff explains how we use punishment and compensation to make restraints operative in the world. (...) After describing the various means by which restraints may be enforced, Reiff explains how the sufficiency of enforcement can be measured, and he presents a unified theory of deterrence, retribution, and compensation that shows how these aspects of enforceability are interconnected. Reiff then applies his theory of enforceability to illuminate a variety of real-world problem situations. (shrink)

While some scholars neglect the theological component to William James’s ethical views in “The Moral Philosopher and the Moral Life,” Michael Cantrell reads it as promoting a divine command theory (DCT) of the foundations of moral obligation. While Cantrell’s interpretation is to be commended for taking God seriously, he goes a little too far in the right direction. Although James’s view amounts to what could be called (and what Cantrell does call) a DCT because on it God’s demands (...) are necessary and sufficient for the highest obligations, this is a view with characteristics unusual for a DCT. It only holds for some obligations; on it moral obligation does not derive from God’s authority; it is not obvious that James believes the God required by it even exists; we do not know what God’s demands are; and, finally, since we do not know them, we cannot act on them. -/- (Lest there be any confusion, the titular phrase "taking God seriously, but not too seriously" describes William James' view of God and morality, not my own view.). (shrink)

: Recently, Erik Wielenberg has developed a novel objection to divine command meta-ethics. The objection that DCM "has the implausible implication that psychopaths have no moral obligations and hence their evil acts, no matter how evil, are morally permissible". This article criticizes Wielenberg's argument. Section 1 will expound Wielenberg's new "psychopath" argument in the context of the recent debate over the Promulgation Objection. Section 2 will discuss two ambiguities in the argument; in particular, Wielenberg’s formulation is ambiguous between whether (...) Wielenberg uses the word "obligation" in an objective or subjective sense. Section 3 will argue that this ambiguity undercuts the argument. If Wielenberg is using the word obligation in a subjective sense, his arguments do not show that that psychopaths "have no moral obligations". By contrast, if Wielenberg is using the word obligation in an objective sense, his arguments do not show that Divine command theorists are committed to denying psychopaths have obligations. (shrink)

In this ground-breaking article submitted for publication in mid-1986, Lucinda Vandervort creates a radically new and comprehensive theory of sexual consent as the unequivocal affirmative communication of voluntary agreement. She argues that consent is a social act of communication with normative effects. To consent is to waive a personal legal right to bodily integrity and relieve another person of a correlative legal duty. If the criminal law is to protect the individual’s right of sexual self-determination and physical autonomy, rather (...) than simply to regulate the type and degree of force that may be used to obtain compliance from a victim, the point of reference must be the individual complainant, as a person who makes choices, not social norms or objective tests based on the ordinary person. To determine whether consent is voluntary, attention must be directed to the presence or absence of factors that had a coercive impact on the individual complainant, a specific person with a collection of social, cultural, and psychological experiences, needs, fears, values, and priorities. Individuals have the right to exercise self-determination in accordance with their own values and perceptions, not those of a mythical victim. Accordingly, Vandervort argues that the prosecution may show either refusal, the absence of affirmative voluntary agreement (including passivity or the absence of consent due to unconsciousness), or circumstances that invalidate any apparent consent. Any of these prove the absence of consent for the purposes of establishing the actus reus of sexual assault. -/- The definition of consent as the affirmative communication of voluntary agreement is also shown to have a variety of implications for the interpretation and application of the law of sexual assault and the handling of evidentiary issues at trial in sexual assault cases. Key among these is the pivotal significance of the legal definition of consent as a tool to bar availability of the defence of “mistaken belief in consent.” Vandervort argues that in many cases the defence of “mistaken belief in consent” is based on ignorance of the law of consent, mistake about the legal definition of consent, or a failure to appreciate the legal significance of facts that are well-known, and not on a mistaken belief in an erroneous set of facts. The broad proposition asserted here is that a statutory criminal law is enforceable only if all defences based directly or indirectly on belief in the validity of extra-legal norms that authorize infringement of rights protected by the criminal law are barred. This proposition and the characterization of some mistakes about consent as legal, not factual, are also shown to be useful to exclude rape-myths and stereotypical assumptions---the stuff of which “social” definitions of consent have long been constructed---from the decision-making process at trial. -/- . (shrink)

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

This essay is divided into two parts. In the first part (§2), I introduce the idea of practical meaning by looking at a certain kind of procedural systems — the motor system — that play a central role in computational explanations of motor behavior. I argue that in order to give a satisfactory account of the content of the representations computed by motor systems (motor commands), we need to appeal to a distinctively practical kind of meaning. Defending the explanatory relevance (...) of semantic properties in a computationalist explanation of motor behavior, my argument concludes that practical meanings play a central role in an adequate psychological theory of motor skill. In the second part of this essay (§3), I generalize and clarify the notion of practical meaning, and I defend the intelligibility of practical meanings against an important objection. (shrink)

Consider the claims that representations of physical laws are intersubjective, and that they ultimately provide the foundation for all other intersubjective knowledge. Those claims, as well as the deeper philosophical commitments that justify them, constitute rare points of agreement between the Marburg School neo-Kantians Paul Natorp and Ernst Cassirer and their positivist rival, Ernst Mach. This is surprising, since Natorp and Cassirer are both often at pains to distinguish their theories of natural scientific knowledge from positivist views like Mach’s, and (...) often from Mach’s views in particular. Thus the very fact of this agreement between the Marburg School neo-Kantians and their positivist stalking horse points to a deep current of ideas that runs beneath the whole of the post-Kantian intellectual context they shared. (shrink)

A stable classification of practical principles into mutually exclusive types is foundational to Kant’s moral theory. Yet, other than a few brief hints on the distinction between maxims and laws, he does not provide any elaborate discussion on the classification and the types of practical principles in his works. This has led Onora O’Neill and Lewis Beck to reinterpret Kant’s classification of practical principles in a way that would clarify the conceptual connection between maxims and laws. In this paper (...) I argue that the revised interpretations of O’Neill and Beck stem from a mistaken reading of the fundamental basis of the classification of practical principles. To show this, I first argue that Kant distinguishes between maxims and laws on the bases of validity and reality. I then argue that although a practical principle necessarily has the feature of validity, its reality in actually moving the agents to action sufficiently makes a principle a practical principle. If this is so, I argue that the classification of practical principles must be based on the extent to which they are effective in human agents. Such a classification yields us three exhaustive and mutually exclusive types namely, “maxims that are not potential laws”, “maxims that are potential laws” and “laws that are not maxims”. (shrink)

In recent work, Adlam (2022b), Chen & Goldstein (2022), and Meacham (2023) have defended accounts of laws that take laws to be primitive global constraints. A major advantage of these accounts is that they’re able to accommodate the many different kinds of laws that appear in physical theories. In this paper I’ll present these three accounts, highlight their distinguishing features, and note some key differences that might lead one to favor one of these accounts over the others. I’ll conclude by (...) briefly discussing a version of a “constraint” account that I think is especially attractive. (shrink)

As analysis of Kant’s account of virtue in the Lectures on Ethics shows that Kant thinks of virtue as a form of moral self-mastery or self-command that represents a model of self-governance he compares to an autocracy. In light of the fact that the very concept of virtue presupposes struggle and conflict, Kant insists that virtue is distinct from holiness and that any ideal of moral perfection that overlooks the fact that morality is always difficult for us fails to (...) provide an appropriate model of human virtue. No matter how morally good we are or become, virtue remains a disposition to do one’s duty from duty, out of necessitation by practical reason. Yet, even though finite rational beings require a power of self-constraint in accordance with the commands of duty to comply with the law (which we obey reluctantly), the virtuous agent displays a unified soul that is at peace. This picture of virtue uncovered from the Lectures on Ethics thus reveals the way in which Kant’s conception of virtue accords with his foundational commitments in his moral theory, while at the same time representing a more complex theory of moral character and a life lived in accordance with practical reason. (shrink)

My analysis here is an attempt to bring out the main through-line in the development of Bulgarian philosophy of law today. A proper account of Bulgarian philosophy of law in the 20th century requires an attempt to find, on the one hand, a solution to epistemological and methodological problems in law and, on the other, a clear-cut influence of the Kantian critical tradition. Bulgarian philosophy of law follows a complicated path, ranging from acceptance and revision of Kantian philosophy to the (...) development of interesting theories on the logic of legal reasoning. (shrink)

In the book, the author defines the evolution as a continuous and nonlinear complex of the structure of matter, interaction types and environments of existence; analyzes existing in modern science and philosophy approaches to the study of the process of evolution, degree of development factors and causes of evolution. Unifying interdisciplinary research in cosmology, evolution, biology, neuroscience and philosophy, the author presents his vision of the evolution model of «Evolving matter», which allows us to consider not only the laws of (...) the transition space vacuum in neural networks but also to see our Universe as a complex, heterogeneous organization. Interdisciplinary amount of information on the theory of evolution is systematized and a new method of world perception is proposed in the book. (shrink)

En «What Makes a Transnational Rule of Law? Understanding the Logos and Values of Human Action in Transnational Law», Verónica Rodríguez-Blanco explora la posibilidad –y oportunidad– de la existencia de un Rule of Law (en adelante, ROL) a nivel transnacional. El objetivo de este trabajo es discutir brevemente algunos puntos relativos a diferentes facetas de la propuesta de Rodríguez-Blanco: la pregunta correcta acerca del ROL y su visión particular acerca de la acción humana (sección 2); el tipo de explicación acerca (...) de las reglas, estándares, reglamentos y principios (sección 3); las definiciones de ROL, coerción, y libertad (sección 4); las partes de la relación relevante y la noción de derecho transnacional (sección 5), y la estructura de las relaciones relevantes en contextos nacionales y transnacionales (sección 6). Intentaré, por una parte, mostrar cómo estos puntos pueden presentarse como relativamente problemáticos y por tanto debilitar la integridad de la propuesta de Rodriguez-Blanco; y, por otra parte, ofrecer algunas alternativas acerca de cómo estos problemas podrían ser resueltos para fortalecerla. A través de esos comentarios intentaré también mostrar cuáles serían, en mi opinión, los puntos importantes a considerar para cualquier discurso o propuesta sólida relacionada con éstos. Finalmente, concluiré con algunos comentarios finales (sección 7). (shrink)

Several variants of Lewis's Best System Account of Lawhood have been proposed that avoid its commitment to perfectly natural properties. There has been little discussion of the relative merits of these proposals, and little discussion of how one might extend this strategy to provide natural property-free variants of Lewis's other accounts, such as his accounts of duplication, intrinsicality, causation, counterfactuals, and reference. We undertake these projects in this paper. We begin by providing a framework for classifying and assessing the variants (...) of the Best System Account. We then evaluate these proposals, and identify the most promising candidates. We go on to develop a proposal for systematically modifying Lewis's other accounts so that they, too, avoid commitment to perfectly natural properties. We conclude by briefly considering a different route one might take to developing natural property-free versions of Lewis's other accounts, drawing on recent work by Williams. (shrink)

Recent defenders of the divine command theory like Adams and Alston have confronted the Euthyphro dilemma by arguing that although God’s commands make right actions right, God is morally perfect and hence would never issue unjust or immoral commandments. On their view, God’s nature is the standard of moral goodness, and God’s commands are the source of all obligation. I argue that this view of divine goodness fails because it strips God’s nature of any features that would make (...) His goodness intelligible. An adequate solution to the Euthyphro dilemma may require that God be constrained by a standard of goodness that is external to Himself -- itself a problematic proposal for many theists. (shrink)

This chapter briefly reviews the present state of judgment aggregation theory and tentatively suggests a future direction for that theory. In the review, we start by emphasizing the difference between the doctrinal paradox and the discursive dilemma, two idealized examples which classically serve to motivate the theory, and then proceed to reconstruct it as a brand of logical theory, unlike in some other interpretations, using a single impossibility theorem as a key to its technical development. In (...) the prospective part, having mentioned existing applications to social choice theory and computer science, which we do not discuss here, we consider a potential application to law and economics. This would be based on a deeper exploration of the doctrinal paradox and its relevance to the functioning of collegiate courts. On this topic, legal theorists have provided empirical observations and theoretical hints that judgment aggregation theorists would be in a position to clarify and further elaborate. As a general message, the chapter means to suggest that the future of judgment aggregation theory lies with its applications rather than its internal theoretical development. (shrink)

Due to his theory of deontological ethic, Kant is regarded, in the history of philosophy, as one of the cornerstones of ethics, and it is said, as a rule, that he has an original theory of ethics in that he posited the idea of free and autonomous individual. However, when dug deeper into Kant‟s ethics, and also if it is ex-actly compared with theological ethic, it is clearly seen that all he has accomplished was to make a copy (...) of the theological ethic and to use such secular terms as reason, conscience, good will, moral law, categorical imperative, universalizability, summum bonum, ethico-civil state/universal religion of mere reason as a substitute for such key terms of religious ethics as God, prophet, for God‟s sake, the Golden Rule, Divine command, Heaven, Kingdom of God without modifying the wording, content and logic of theolog-ical ethics. So, the notion of a subject or reason which pretends to be God has no sign of originality. (shrink)

An adequate account of laws should satisfy at least five desiderata: it should provide a unified account of laws and chances, it should yield plausible relations between laws and chances, it should vindicate numerical chance assignments, it should accommodate dynamical and non-dynamical chances, and it should accommodate a plausible range of nomic possibilities. No extant account of laws satisfies these desiderata. This paper presents a non-Humean account of laws, the Nomic Likelihood Account, that does.

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)

Eric Posner’s signaling theory of social norms holds that individuals adopt social norms in order to signal that they have a low discount rate , and are therefore reliable long-term cooperative partners. This paper radically expands Posner’s theory by incorporating internalization into his model . I do this by tethering Posner’s theory to an evolutionary model. I argue that internalization is an adaptive quality that enhances the individual’s ability to play Posner’s signaling game and was thus selected (...) for. The idea that internalization is evolutionarily conditioned is not new; however, linking this to Posner’s theory of discount rate signals is, and doing so offers tremendous explanatory potential.Part I identifies the limitations of Posner’s purely rational choice approach, argues for the necessity of including internalization, and then proposes a model that does so – what I call the Expanded Signaling Model of Norms . Part II examines the problems that arise when we embrace such a model. How this model answers some key criticisms plaguing sociobiology is also briefly explored. Part III then examines existing criticisms of Posner’s theory, demonstrating how the Expanded Signaling Model clearly resolves these issues. The paper concludes that incorporating internalization into Posner’s signaling model greatly broadens the explanatory reach of Posner’s theory, providing a measure of clarity and predictability regarding how and why norms are internalized – an important insight, as these beliefs form the normative underpinning to law. (shrink)

Ultimately this book provides a theory of intergenerational justice that is both intellectually robust and practical with wide applicability to law and policy.