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)

In ‘Excusing Mistakes of Law’, Gideon Yaffe sets out to ‘vindicate’ the claim ‘that mistakes of law never excuse’ by ‘identifying the truth that is groped for but not grasped by those who assert that ignorance of law is no excuse’. Yaffe does not offer a defence of the claim that mistakes of law never excuse. That claim, Yaffe argues, is false. Yaffe’s article is, rather, an effort to assess what plausible thought might be behind the idea that mistakes of (...) law often should not excuse. (Yaffe is interested in more than just the descriptive claim that in Anglo-American legal jurisdictions mistakes of law routinely do not, in fact, excuse.) More particularly, Yaffe is interested in what plausible normative justification there might be for this asymmetric pattern: -/- Asymmetry: False beliefs about non-legal facts often excuse, but false beliefs about the law rarely excuse. -/- Yaffe offers a complex argument in support of Asymmetry. This paper is organised around my reconstruction of Yaffe’s argument. I argue that Yaffe’s argument does not succeed, but that his argument provides a template for an argument that could succeed. (shrink)

This Article falls into three general parts. The first part starts with an important question: is the insanity defense constitutionally required? The United States Supreme Court will finally try to answer this question next term in the case of Kahler v. Kansas. -/- I say “finally” because the Court refused to answer this question in 2012 when it denied certiorari to an appeal brought by John Joseph Delling, a severely mentally ill defendant who was sentenced to life in prison three (...) years earlier for two murders. Delling never had the opportunity to plead the insanity defense because his home state, Idaho, had abolished it in 1982. -/- By depriving Delling of the right to plead insanity, Idaho violated Delling’s Fourteenth Amendment right to due process and his Eighth Amendment right against “cruel and unusual” punishment. Naturally, the same is true for many other mentally ill and disabled defendants who have been prosecuted in Idaho and in the other three states that have abolished the insanity defense: Kansas, Montana, and Utah. -/- The second general part of this Article notes an insight that I stumbled upon in the course of researching the first part: the insanity defense and the mistake of law defense both require ignorance of the law, what I refer to as “normative ignorance.” Indeed, normative ignorance is what makes both of these defenses exculpatory in the first place. -/- Given this critical connection, there is a way for Idaho, Kansas, Montana, and Utah to resume compliance with the Constitution. Instead of reinstating the insanity defense per se, which might be politically unpopular, they should just broaden their mistake of law defense to include normative ignorance caused by cognitive incapacity that is itself caused by mental illness or disability. -/- Still, this Article is not merely directed at these four western states. It is directed at the other forty-six states as well. Because they already have an insanity defense, they need not incorporate it into their mistake of law defense. But in the third general part, I will argue that they should still expand their mistake of law defense to cover defendants who either lack a reasonable opportunity to learn the law or reasonably but mistakenly infer from widely accepted norms or ethics that their conduct is lawful. (shrink)

The problem addressed in this article is the relationship between law and morality. It is asked (1) to what extent law and morality are connected and separated and (2) since when has it been so. To the extent that law and morality are distinct normative orders, it is asked (3) whether they rule exactly the same behaviors or whether each order rules dierent kinds of behaviors. If they rule at least some of the same behaviors, it is asked (4) whether (...) there can be antinomies (contradictions) between them. If there are an- tinomies, it is asked (5) whether the antinomies are only apparent (prima facie) and are therefore mistakes of human reason, or are definite and real. If the antinomies are apparent or real, it is asked (6) whether law or morality prevails (or should prevail) in the case of an antinomy. If one of these prevails, it is asked (7) whether this is always so, or whether law sometimes prevails (and should prevail) over morality and vice versa. In the case of existing coherence or at least solvable antinomies between law and morality, it is asked (8) whether the consequent achieved unity of practical reason is a specifically moral unity and whether it is a matter of cognition, of institutionalization, of individual or collective construction, or of consensus. (shrink)

This paper points to some limitations of law and economics as both an explanative and a normative theory. In explaining law as the result of efficiency promoting decisions, law and economics theorists often dismiss the reasons actors in the legal system give for their behavior. Recognizing that sometimes actors may be unaware of why institutions evolve as they do, I argue that the case for dismissing reasons for action is weaker when those reasons make reference to rules of practices that (...) constitute the meaning of actions within those practices, or when they have otherwise been given well-considered defenses. In criticizing law and economics as a normative theory, I acknowledge that economic considerations are often important in deciding how to act in the personal sphere and how government should allocate its scarce resources. I argue that while the use of institutions to promote our ideals forces us to take their costs into account, it is a mistake to infer from this that the question of determining social policy is a purely economic problem, and that we should acknowledge the non-utilitarian moral ideals our law and practices promote. This is the basis of both an internal criticism--law and economics theorists have not sufficiently evaluated and weighed the value of fairness and other ideals in their utility calculations--and an external criticism-- these ideals are important in ways that can not be measured in utiles. (shrink)

This is an attempt to axiomatise the natural laws. Note especially axiom 4, which is expressed in third order predicate logic, and which permits a solution to the problem of causation in nature without stating that “everything has a cause”. The undefined term “difference” constitutes the basic element and each difference is postulated to have an exact position and to have a discrete cause. The set of causes belonging to a natural set of dimensions is defined as a law. This (...) means that a natural law is determined by the discrete causes tied to a natural set of dimensions. A law is defined as “defined” in a point if a difference there has a cause. Given that there is a point for which the law is not defined it is shown that a difference is caused that connects two points in two separate sets of dimensions. (shrink)

One of the most important difficulties facing Kant’s Formula of Universal Law (FUL) is its apparent inability to show that it is always impermissible to kill others for the sake of convenience. This difficulty has led current Kantian ethicists to de-emphasize the FUL or at least complement it with other Kantian principles when dealing with murder. The difficulty stems from the fact that the maxim of convenience killing fails to generate a ‘contradiction in conception’, producing only a ‘contradiction in the (...) will’ when subjected to the two-fold test associated with the FUL. This result is thought to imply that the FUL allows us sometimes to kill for the sake of convenience. In this essay, I argue that the very diagnosis of the problem rests on a mistake, and that if the maxim of convenience killing generates a contradiction in the will, then acting on it is never permissible. (shrink)

In this paper I will discuss two aspects of ignorance of the law: ignorance of illegality (including mistaking the law) and ignorance of the penalty; and I will look at the implications for natives, for tourists and for immigrants. I will argue that Carlos Nino's consensual theory of punishment need to rely on two premises in order to justify that (claiming) ignorance of the law is no excuse. The first premise explains why individuals are presumed to 'know' current laws. The (...) second premise explains why individuals are presumed to 'know' new legislation. (shrink)

Resources for Feminist Research, Vol. 3, No. 4, pp. 44-45, 1985 In this brief article, written in 1984 and published the following year, Lucinda Vandervort sets out a comprehensive agenda for enforcement of sexual assault laws in Canada. Those familiar with her subsequent writing are aware that the legal implications of the distinction between the “social” and “legal” definitions of sexual assault, identified here as crucial for interpretation and implementation of the law of sexual assault, are analyzed at length in (...) “Mistake of Law and Sexual Assault: Consent and Mens Rea” (1986), published at (1987-88) 2(2) Canadian Journal of Women and the Law, 233 309. In that article the author argued that most mistakes about consent are not mistakes about a “fact” that may sometimes negative mens rea, but are actually mistakes about the law that afford accused no excuse under either Canadian common law or statutory criminal law. She argued further that consent must be interpreted as “voluntary agreement” and must be affirmatively and unequivocally communicated in order to operate as an effective waiver of a person’s legal right to be free from interference with his or her bodily integrity. That article was a central reference point in the consultations leading to the 1992 amendments to the sexual assault provisions in the Canadian Criminal Code and in some key decisions by the Supreme Court of Canada in sexual assault cases in the 1990’s. As a result of a gradual transformation of theoretical analysis of the law of mens rea and consent in Canada, culpable awareness is now understood by many jurists and criminal law theorists quite differently than it was twenty-five years ago. As Vandervort acknowledged in her 1984 Agenda for Action, however, clarity in legal theory and legal doctrine is no guarantee of how sexual assault laws will operate in practice. Theory and practice, doctrine and its implementation, often diverge. This phenomenon is still seen in some decisions taken at the trial, pre-trial, and pre-charge stages in sexual assault cases. Police, prosecutors, and many trial judges, like accused, may often be influenced by traditional attitudes about sexual consent and mistaken about the law of consent. Accordingly, in her recent work Vandervort re-visits and re-examines the exercise of discretion by police, prosecutors, and the judiciary. An example is her 2009 article “Legal Subversion of the Criminal Justice Process? Judicial, Prosecutorial and Police Discretion in R. v. Edmondson, Kindrat and Brown” in Sexual Assault Law, Practice & Activism in a Post-Jane Doe Era, edited by Elizabeth Sheehy (Ottawa: University of Ottawa Press, 2012). In this and some of her other recent work, the distinctions between social and legal norms and questions of fact and law, previously analyzed with the objective of clarifying the law, are used to control the effects of social ignorance and partiality in the handling of sexual assault complaints by decision-makers in the criminal justice system at trial and pre-trial. Lucinda Vandervort’s published and unpublished legal and philosophical writings on sexual assault and sexual assault law illustrate the development of a socio-legal scholar’s “Agenda for Action” into a principled, pragmatic, open-ended exercise in “institutional design.” Across two centuries, from the revolutionary era of the 18th century to the present, other radical egalitarians would recognize both the impetus for the project and many features of the political and cultural resistance to it. (shrink)

Recent debate in the literature on political obligation about the principle of fairness rests on a mistake. Despite the widespread assumption to the contrary, a person can have a duty of fairness to share in the burdens of sustaining some cooperative scheme even though that scheme does not represent a net benefit to her. Recognizing this mistake allows for a resolution of the stalemate between those who argue that the mere receipt of some public good from a scheme (...) can generate a duty of fairness and those who argue that only some voluntary action of consent or acceptance of the good can generate such a duty. I defend a version of the principle of fairness that holds that it is the person’s reliance on a scheme for the provision of some product or service that generates duties of fairness to share in the burdens of sustaining the scheme. And, on this version, the principle of fairness is politically significant: regardless of whether the citizen has a duty to obey the law, she will still have important political duties of fairness generated by her reliance on the various public goods provided by those society-wide cooperative schemes sustained by the sacrifices of her fellow citizens. (shrink)

The paper argues that at present the Criminal law does not contain satisfactory rules for dealing with the circumstances in which a mistake can be taken to vitiate the victim's consent to an action or transaction. Rules on this issue vary both between different offences and within given offences in a way that is neither coherent nor predictable. As a matter of fact consent should be regarded as vitiated whenever the victim is under a misapprehension but for which (s)he (...) would not have given consent, but from a practical point of view it will not always be possible to allow this factual vitiation to have legal effect. To try to find a more satisfactory set of rules the paper offers a series of potential rules placed along a spectrum. Towards either end of the spectrum the rules have greater certainty and coherence, but produce less desirable results in terms of policy. Towards the centre of the spectrum the reverse is true. The paper therefore concludes that no single rule will be able to provide the answer to this area, and that an approach which recognises a series of circumstances in which consent will be regarded as legally vitiated should be retained instead. However, it is imperative that in future these categories be clearly, and predictably drawn and individually explicable and justifiable. As a starting point it is proposed that consent should be regarded as vitiated when the victim has made a non est factum mistake, has been mistaken about something which would render the action or transaction physically different from that expected, or where the victim believed that the defendant had a legal qualification which in fact (s)he lacked. (shrink)

In the first few pages of chapter 4 of his Theological Political Treatise (1670), Spinoza defines his conception of the law. In fact, he defines the law twice, first in terms of compulsion or necessity and then in terms of use. I would like to investigate here these definitions, in particular the second one, as it is Spinoza’s preferred one. The difficulty with understanding this definition is that it contains an expression, ratio vivendi, that is repeated several times in the (...) first few pages of chapter 4, but, unless it is taken as a technical term referring to law as use, it is easy to mistake it as a casual expression that might mean different things each time. As a result, it is indispensable to turn to the Latin text to unlock the technical meaning of ratio vivendi. The result will be that Spinoza's conception of the law aligns with the epicurean conception of the law understood in terms of use. (shrink)

The availability of the defence of belief in consent under section 265(4) is a question of law, subject to review on appeal. The statutory provision is based on the common law rule that applies to all defences. Consideration of the defence when it is unavailable in law and failure to consider it when it is available are both incorrect. A judge is most likely to avoid error when ruling on availability of the defence if the ruling: (1) is grounded on (...) sound analysis of the substantive basis for the defence and its relationship to the principles of criminal responsibility; and (2) uses precise legal criteria to govern practical application of section 265(4) to the evidence in specific cases. The guidelines proposed in Part I are based on analyses of the substantive defence and culpable awareness and were developed to ensure that appropriate criteria are properly used when section 265(4) is applied. When a trial judge rules that the defence is available in law, the trier of fact must determine whether the defence is available on the facts as found, based on the evidence in the case. The model jury instructions proposed in Part II are designed to ensure that deliberations by the trier of fact are also guided and shaped by appropriate legal criteria. At both stages, the objective is to ground the deliberation process on fact, not fiction, and to regulate the exculpatory effect of the defence by using legal norms to exclude excuses based on extra-legal considerations such as sexual/racial fantasy, stereotype and myth, or community attitudes and custom. (shrink)

I argue that No-Ought-From-Is (in the sense that I believe it) is a relatively trivial affair. Of course, when people try to derive substantive or non-vacuous moral conclusions from non-moral premises, they are making a mistake. But No-Non-Vacuous-Ought-From-Is is meta-ethically inert. It tells us nothing about the nature of the moral concepts. It neither refutes naturalism nor supports non-cognitivism. And this is not very surprising since it is merely an instance of an updated version of the conservativeness of logic (...) (in a logically valid inference you don’t get out what you haven’t put in): so long as the expressions F are non-logical, you cannot get non-vacuous F-conclusions from non-F premises. However, the triviality of No-Non-Vacuous-Ought-From-Is is important and its non-profundity profound. No-Ought-From-Is is widely supposed to tell us something significant about the nature of the moral concepts. If, in fact, it tells us nothing, this is a point well worth shouting from the housetops. This brings me to my dispute with Gerhard Schurz who has proved a related version of No-Ought-From-Is, No-Ought-Relevant-Ought-From-Is, a proof which relaxes my assumption that ‘ought’ should not be treated as a logical constant. But if ought is not a logical expression then it does not really matter much that No-Ought-From-Is would be salvageable even if it were. Furthermore, Schurz’s proof depends on special features of the moral concepts and this might afford the basis for an abductive argument to something like non-cognitivism. As an error theorist, and therefore a cognitivist, I object. Finally I take a dim view of deontic logic. Many of its leading principles are false, bordering on the nonsensical, and even the reasonably plausible ones are subject to devastating counter-examples. (shrink)

In 2001, three non-Aboriginal men in their twenties were charged with the sexual assault of a twelve year old Aboriginal girl in rural Saskatchewan. Legal proceedings lasted almost seven years and included two preliminary hearings, two jury trials, two retrials with juries, and appeals to the provincial appeal court and the Supreme Court of Canada. One accused was convicted. The case raises questions about the administration of justice in sexual assault cases in Saskatchewan. Based on observation and analysis of the (...) record, this paper: (1) examines relationships between legal errors dealing with availability of the defence of “belief in consent” and interpretation of the “all reasonable steps” provision, the need for retrials, and apprehended race-gender-age bias and discrimination; and 2) proposes incremental and systemic remedies to address the weaknesses in police, prosecutorial and judicial policy and practice highlighted by this case. (shrink)

Despite amendments to the sexual assault provisions in the Criminal Code, decisions about the availability and operation of the defence of belief in consent remain vulnerable to the influence of legally extraneous considerations. The author proposes an approach designed to limit the influence of such considerations.

S. Matthew Liao and Christian Barry argue that the patient-centered approach to deontology that I have developed—the restricting claims principle —‘is beset with problems.’ They think that it cannot correctly handle cases in which a potential victim sits in the path of an agent doing what she needs to do for some greater good, or in which a person’s property is used to benefit others and harm her. They argue that cases in which an agent does what would be permissible (...) but acts on a malicious reason show that agent intentions, rather than patientclaims, are fundamental to deontology. And they claim that the RCP presupposes the means principle in a way that shows that it is not really offering anything new. I argue here that all of these charges are mistaken. Doing so allows me to offer important refinements to the RCP, to highlight two common mistakes in reasoning about cases, and to set challenges for agentcentered approaches to deontology. (shrink)

This article examines the operation of “reasonable steps” as a statutory standard for analysis of the availability of the defence of belief in consent in sexual assault cases and concludes that application of section 273.2(b) of the Criminal Code, as presently worded, often undermines the legal validity and correctness of decisions about whether the accused acted with mens rea, a guilty, blameworthy state of mind. When the conduct of an accused who is alleged to have made a mistake about (...) whether a complainant communicated consent is assessed by the hybrid subjective-objective reasonableness standard prescribed by s. 273.2, many decision-makers rely on extra-legal criteria and assumptions grounded on their personal experience and opinion about what is reasonable. In the midst of debate over what the accused knew and what steps were “reasonable” given what the accused knew, the legal definition of consent in section 273.1 is easily over-looked and decision-makers focus on facts that are legally irrelevant and prejudice rational deliberation. -/- That is precisely what we see here; the result is often failure to enforce the law. The author proposes: -/- (a) that section 273.2 be amended to reflect the significant developments achieved in sexual consent jurisprudence since enactment of the provision in 1992; and -/- (b) that, in the interim, the judiciary act with resolve to make full and proper use of the statutory and common law tools that are presently available to determine whether the accused acted with mens rea in relation to the absence of sexual consent. (shrink)

Suppose you are at the gym trying to see some naked beauties by peeping through a hole in the wall. A policeman happens by, he asks you what you are doing, and you honestly tell him. He then arrests you for voyeurism. Are you guilty? We don’t know yet because there is one more fact to be considered: while you honestly thought that a locker room was on the other side of the wall, it was actually a squash court. Are (...) you guilty now? -/- Probably. You might argue that your scopophiliac ambition was impossible to satisfy given that you were peeping into a squash court, not a locker room. But this “Impossibility Defense” would fail because most jurisdictions follow the very influential Model Penal Code (MPC), which says that what is important about attempt is not the likelihood of success but rather what was going on in your head. You tried to peer into a locker room with the intention of seeing some nudity; that is enough for culpability. The fact that you were mistaken about the location does not exonerate you. -/- But now suppose that the particular jurisdiction you are in does not criminalize voyeurism. While most people think that voyeurism is just plain wrong, if not disgusting, the legislature just never got around to drafting a statute against it. Are you guilty now? The answer is no. But you might just be out of luck and convicted anyway. -/- The reason for this strange conclusion is that most jurisdictions have followed the Model Penal Code in yet another respect: along with the MPC’s “subjectivist” emphasis on what is in your head, they have followed the MPC’s lead in abolishing the Impossibility Defense entirely. As a result, people who believe that they are breaking laws when they really are not may still be subject to arrest, prosecution, and conviction respectively by police, prosecutors, and judges/juries merely if all three parties regard your conduct — especially your trying to violate a law that you mistakenly believed in — as morally reprehensible. The best, if not only, defense against this charge is the Impossibility Defense, but — again — most jurisdictions have decided to make this defense unavailable to defendants. -/- Depriving eligible defendants of the Impossibility Defense is unjust. It violates one of the most basic principles of criminal justice: the legality principle. The legality principle says that there cannot be just punishment without a crime, and there should not be a crime without an explicit law designating it as such. So you cannot be charged with, and convicted of, attempted voyeurism if voyeurism, reprehensible as it may be, was not explicitly prohibited at the time that you made the attempt. -/- If we believe in the legality principle, then we must restore the Impossibility Defense. Without the latter, too many defendants are being — and will continue to be — punished for attempts to perform acts that were not themselves illegal but which various parties in the criminal justice system (except the legislature) thought should be illegal based on their extralegal, moral prejudices. -/- In addition to the MPC, the principal obstacle to resurrecting the Impossibility Defense is a good deal of conceptual confusion that permeates relevant cases and scholarship. Too many courts and academics have conflated “factual impossibility” with “legal impossibility” and have fallaciously inferred “hybrid impossibility” from “hybrid mistakes” (that is, legal mistakes that derive from factual mistakes). One of the principal goals of this Article, then, is to clear up all of this confusion. I will explicate in the simplest possible terms (a) the difference between factual impossibility and legal impossibility, (b) why only legal impossibility qualifies as exculpatory, and (c) why hybrid impossibility simply does not exist. (shrink)

continent. 1.1 : 3-13. / 0/ – Introduction I want to propose, as a trajectory into the philosophically weird, an absurd theoretical claim and pursue it, or perhaps more accurately, construct it as I point to it, collecting the ground work behind me like the Perpetual Train from China Mieville's Iron Council which puts down track as it moves reclaiming it along the way. The strange trajectory is the following: Kant's critical philosophy and much of continental philosophy which has followed, (...) has been a defense against horror and madness. Kant's prohibition on speculative metaphysics such as dogmatic metaphysics and transcendental realism, on thinking beyond the imposition of transcendental and moral constraints, has been challenged by numerous figures proceeding him. One of the more interesting critiques of Kant comes from the mad black Deleuzianism of Nick Land stating, “Kant’s critical philosophy is the most elaborate fit of panic in the history of the Earth.” And while Alain Badiou would certainly be opposed to the libidinal investments of Land's Deleuzo-Guattarian thought, he is likewise critical of Kant's normative thought-bureaucracies: Kant is the one author for whom I cannot feel any kinship. Everything in him exasperates me, above all his legalism—always asking Quid Juris? Or ‘Haven’t you crossed the limit?’—combined, as in today’s United States, with a religiosity that is all the more dismal in that it is both omnipresent and vague. The critical machinery he set up has enduringly poisoned philosophy, while giving great succour to the academy, which loves nothing more than to rap the knuckles of the overambitious [….] That is how I understand the truth of Monique David-Menard’s reflections on the properly psychotic origins of Kantianism. I am persuaded that the whole of the critical enterprise is set up to to shield against the tempting symptom represented by the seer Swedenborg, or against ‘diseases of the head’, as Kant puts it. An entire nexus of the limits of reason and philosophy are set up here, namely that the critical philosophy not only defends thought from madness, philosophy from madness, and philosophy from itself, but that philosophy following the advent of the critical enterprise philosophy becomes auto-vampiric; feeding on itself to support the academy. Following Francois Laruelle's non-philosophical indictment of philosophy, we could go one step further and say that philosophy operates on the material of what is philosophizable and not the material of the external world. [1] Beyond this, the Kantian scheme of nestling human thinking between our limited empirical powers and transcendental guarantees of categorical coherence, forms of thinking which stretch beyond either appear illegitimate, thereby liquefying both pre-critical metaphysics and the ravings of the mad in the same critical acid. In rejecting the Kantian apparatus we are left with two entities – an unsure relation of thought to reality where thought is susceptible to internal and external breakdown and a reality with an uncertain sense of stability. These two strands will be pursued, against the sane-seal of post-Kantian philosophy by engaging the work of weird fiction authors H.P. Lovecraft and Thomas Ligotti. The absolute inhumanism of the formers universe will be used to describe a Shoggothic Materialism while the dream worlds of the latter will articulate the mad speculation of a Ventriloquil Idealism. But first we must address the relation of philosophy to madness as well as philosophy to weird fiction. /1/ – Philosophy and Madness There is nothing that the madness of men invents which is not either nature made manifest or nature restored. Michel Foucault. Madness and Civilization. The moment I doubt whether an event that I recall actually took place, I bring the suspicion of madness upon myself: unless I am uncertain as to whether it was not a mere dream. Arthur Schopenhauer. The World as Will and Idea, Vol. 3. Madness is commonly thought of as moving through several well known cultural-historical shifts from madness as a demonic or otherwise theological force, to rationalization, to medicalization psychiatric and otherwise. Foucault's Madness and Civilization is well known for orientating madness as a form of exclusionary social control which operated by demarcating madness from reason. Yet Foucault points to the possibility of madness as the necessity of nature at least prior to the crushing weight of the church. Kant’s philosophy as a response to madness is grounded by his humanizing of madness itself. As Adrian Johnston points out in the early pages of Time Driven pre-Kantian madness meant humans were seized by demonic or angelic forces whereas Kantian madness became one of being too human. Madness becomes internalized, the external demonic forces become flaws of the individual mind. Foucault argues that, while madness is de-demonized it is also dehumanized during the Renaissance, as madmen become creatures neither diabolic nor totally human reduced to the zero degree of humanity. It is immediately clear why for Kant, speculative metaphysics must be curbed – with the problem of internal madness and without the external safeguards of transcendental conditions, there is nothing to formally separate the speculative capacities for metaphysical diagnosis from the mad ramblings of the insane mind – both equally fall outside the realm of practicality and quotidian experience. David-Menard's work is particularly useful in diagnosing the relation of thought and madness in Kant's texts. David-Menard argues that in Kant's relatively unknown “An Essay on the Maladies of the Mind” as well as his later discussion of the Seer of Swedenborg, that Kant formulates madness primarily in terms of sensory upheaval or other hallucinatory theaters. She writes: “madness is an organization of thought. It is made possible by the ambiguity of the normal relation between the imaginary and the perceived, whether this pertains to the order of sensation or to the relations between our ideas” Kant's fascination with the Seer forces Kant between the pincers of “aesthetic reconciliation” – namely melancholic withdrawal – and “a philosophical invention” – namely the critical project. Deleuze and Guattari's schizoanalysis is a combination and reversal of Kant's split, where an aesthetic over engagement with the world entails prolific conceptual invention. Their embrace of madness, however, is of course itself conceptual despite all their rhizomatic maneuvers. Though they move with the energy of madness, Deleuze and Guattari save the capacity of thought from the fangs of insanity by imbuing materiality itself with the capacity for thought. Or, as Ray Brassier puts it, “Deleuze insists, it is necessary to absolutize the immanence of this world in such a way as to dissolve the transcendent disjunction between things as we know them and as they are in themselves”. That is, whereas Kant relied on the faculty of judgment to divide representation from objectivity Deleuze attempts to flatten the whole economy beneath the juggernaut of ontological univocity. Speculation, as a particularly useful form of madness, might fall close to Deleuze and Guattari’s shaping of philosophy into a concept producing machine but is different in that it is potentially self destructive – less reliant on the stability of its own concepts and more adherent to exposing a particular horrifying swath of reality. Speculative madness is always a potential disaster in that it acknowledges little more than its own speculative power with the hope that the gibbering of at least a handful of hysterical brains will be useful. Pre-critical metaphysics amounts to madness, though this may be because the world itself is mad while new attempts at speculative metaphysics, at post-Kantian pre-critical metaphysics, are well aware of our own madness. Without the sobriety of the principle of sufficient reason we have a world of neon madness: “we would have to conceive what our life would be if all the movements of the earth, all the noises of the earth, all the smells, the tastes, all the light – of the earth and elsewhere, came to us in a moment, in an instant – like an atrocious screaming tumult of things”. Speculative thought may be participatory in the screaming tumult of the world or, worse yet, may produce its spectral double. Against theology or reason or simply commonsense, the speculative becomes heretical. Speculation, as the cognitive extension of the horrorific sublime should be met with melancholic detachment. Whereas Kant's theoretical invention, or productivity of thought, is self -sabotaging, since the advent of the critical project is a productivity of thought which then delimits the engine of thought at large either in dogmatic gestures or non-systematizable empirical wondrousness. The former is celebrated by the fiction of Thomas Ligotti whereas the latter is espoused by the tales of H.P. Lovecraft. /2/ – Weird Fiction and Philosophy. Supernatural horror, in all its eerie constructions, enables a reader to taste treats inconsistent with his personal welfare. Thomas Ligotti Songs of a Dead Dreamer. I choose weird stories because they suit my inclination best—one of my strongest and most persistent wishes being to achieve,momentarily, the illusion of some strange suspension or violation of the galling limitations of time, space, and natural law which forever imprison us and frustrate our curiosity about the infinite cosmic spaces beyond the radius of our sight and analysis H.P. Lovecraft. “Notes on Writing Weird Fiction” Lovecraft states that his creation of a story is to suspend natural law yet, at the same time, he indexes the tenuousness of such laws, suggesting the vast possibilities of the cosmic. The tension that Lovecraft sets up between his own fictions and the universe or nature is reproduced within his fictions in the common theme of the unreliable narrator; unreliable precisely because they are either mad or what they have witnessed questions the bounds of material reality. In “The Call of Cthulhu” Lovecraft writes: The most merciful thing in the world, I think, is the inability of the human mind to correlate all its contents. We live on a placid island of ignorance in the midst of black seas of infinity, and it was not meant that we should voyage far. The sciences, each straining in its own direction, have hitherto harmed us little; but some day the piecing together of dissociated knowledge will open up such terrifying vistas of reality, and of our frightful position therein, that we shall either go mad from the revelation or flee from the deadly light into the peace and safety of a new dark age. Despite Lovecraft's invocations of illusion, he is not claiming that his fantastic creations such as the Old Ones are supernatural but, following Joshi, are only ever supernormal. One can immediately see that instead of nullifying realism Lovecraft in fact opens up the real to an unbearable degree. In various letters and non-fictional statements Lovecraft espoused strictly materialist tenets, ones which he borrowed from Hugh Elliot namely the uniformity of law, the denial of teleology and the denial of non-material existence. Lovecraft seeks to explore the possibilities of such a universe by piling horror upon horror until the fragile brain which attempts to grasp it fractures. This may be why philosophy has largely ignored weird fiction – while Deleuze and Guattari mark the turn towards weird fiction and Lovecraft in particular, with the precursors to speculative realism as well as contemporary related thinkers have begun to view Lovecraft as making philosophical contributions. Lovecraft's own relation to philosophy is largely critical while celebrating Nietzsche and Schopenhauer. This relationship of Lovecraft to philosophy and philosophy to Lovecraft is coupled with Lovecraft's habit of mercilessly destroying the philosopher and the figure of the academic more generally in his work, a destruction which is both an epistemological destruction and an ontological destruction. Thomas Ligotti's weird fiction which he has designated as a kind of “confrontational escapism” might be best described in the following quote from one of his shortstories, “The human phenomenon is but the sum of densely coiled layers of illusion each of which winds itself on the supreme insanity. That there are persons of any kind when all there can be is mindless mirrors laughing and screaming as they parade about in an endless dream”. Whereas Lovecraft's weirdness draws predominantly from the abyssal depths of the uncharted universe, Ligotti's existential horror focuses on the awful proliferation of meaningless surfaces that is, the banal and every day function of representation. In an interview, Ligotti states: We don't even know what the world is like except through our sense organs, which are provably inadequate. It's no less the case with our brains. Our whole lives are motored along by forces we cannot know and perceptions that are faulty. We sometimes hear people say that they're not feeling themselves. Well, who or what do they feel like then? This is not to say that Ligotti sees nothing beneath the surface but that there is only darkness or blackness behind it, whether that surface is on the cosmological level or the personal. By addressing the implicit and explicit philosophical issues in Ligotti's work we will see that his nightmarish take on reality is a form of malevolent idealism, an idealism which is grounded in a real, albeit dark and obscure materiality. If Ligotti's horrors ultimately circle around mad perceptions which degrade the subject, it takes aim at the vast majority of the focus of continental philosophy. While Lovecraft's acidic materialism clearly assaults any romantic concept of being from the outside, Ligotti attacks consciousness from the inside: Just a little doubt slipped into the mind, a little trickle of suspicion in the bloodstream, and all those eyes of ours, one by one, open up to the world and see its horror [...] Not even the solar brilliance of a summer day will harbor you from horror. For horror eats the light and digests it into darkness. Clearly, the weird fiction of Lovecraft and Ligotti amount to a anti-anthrocentric onslaught against the ramparts of correlationist continental philosophy. /3/ – Shoggothic Materialism or the Formless Formless protoplasm able to mock and reflect all forms and organs and processes—viscous agglutinations of bubbling cells—rubbery fifteen-foot spheroids infinitely plastic and ductile—slaves of suggestion, builders of cities—more and more sullen, more and more intelligent, more and more amphibious, more and more imitative—Great God! What madness made even those blasphemous Old Ones willing to use and to carve such things? H.P. Lovecraft. “At the Mountains of Madness” On the other hand, affirming that the universe resembles nothing and is only formless amounts to saying that the universe is something like a spider or spit. Georges Bataille. “Formless”. The Shoggoths feature most prominently in H.P. Lovecraft's shortstory “At the Mountains of Madness” where they are described in the following manner: It was a terrible, indescribable thing vaster than any subway train – a shapeless congeries of protoplasmic bubbles, faintly self -luminous, and with myriads of temporary eyes forming and un-forming as pustules of greenish light all over the tunnel-filling front that bore down upon us, crushing the frantic penguins and slithering over the glistening floor that it and its kind had swept so evilly free of all litter. The term is a litmus test for materialism itself as the Shoggoth is an amorphous creature. The Shoggoths were living digging machines bio engineered by the Elder Things, and their protoplasmic bodies being formed into various tools by their hypnotic powers. The Shoggoths eventually became self aware and rose up against their masters in an ultimately failed rebellion. After the Elder Ones retreated into the oceans leaving the Shoggoths to roam the frozen wastes of the Antarctic. The onto-genesis of the Shoggoths and their gross materiality, index the horrifyingly deep time of the earth a concept near and dear to Lovecraft's formulation of horror as well as the fear of intelligences far beyond, and far before, the ascent of humankind on earth and elsewhere. The sickly amorphous nature of the Shoggoths invade materialism at large, where while materiality is unmistakably real ie not discursive, psychological, or otherwise overly subjectivist, it questions the relation of materialism to life. As Eugene Thacker writes: The Shoggoths or Elder Things do not even share the same reality with the human beings who encounter them—and yet this encounter takes place, though in a strange no-place that is neither quite that of the phenomenal world of the human subject or the noumenal world of an external reality. Amorphous yet definitively material beings are a constant in Lovecraft's tales. In his tale “The Dream-Quest of Unknown Kadatth” Lovecraft describes Azathoth as, “that shocking final peril which gibbers unmentionably outside the ordered universe,” that, “last amorphous blight of nethermost confusion which blashphemes and bubbles at the centre of all infinity,” who, “gnaws hungrily in inconceivable, unlighted chambers beyond time”. Azathoth's name may have multiple origins but the most striking is the alchemy term azoth which is both a cohesive agent and a acidic creation pointing back to the generative and the decayed. The indistinction of generation and degradation materially mirrors the blur between the natural and the unnatural as well as life and non-life. Lovecraft speaks of the tension between the natural and the unnatural is his short story “The Unnameable.” He writes, “if the psychic emanations of human creatures be grotesque distortions, what coherent representation could express or portray so gibbous and infamous a nebulousity as the spectre of a malign, chaotic perversion, itself a morbid blasphemy against Nature?”. Lovecraft explores exactly the tension outlined at the beginning of this chapter, between life and thought. At the end of his short tale Lovecraft compounds the problem as the unnameable is described as “a gelatin—a slime—yet it had shapes, a thousand shapes of horror beyond all memory”. Deleuze suggests that becoming-animal is operative throughout Lovecraft's work, where narrators feel themselves reeling at their becoming non-human or of being the anomalous or of becoming atomized. Following Eugene Thacker however, it may be far more accurate to say that Lovecraft's tales exhibit not a becoming-animal but a becoming-creature. Where the monstrous breaks the purportedly fixed laws of nature, the creature is far more ontologically ambiguous. The nameless thing is an altogether different horizon for thought. The creature is either less than animal or more than animal – its becoming is too strange for animal categories and indexes the slow march of thought towards the bizarre. This strangeness is, as aways, some indefinite swirling in the category of immanence and becoming. Bataille begins “The Labyrinth” with the assertion that being, to continue to be, is becoming. More becoming means more being hence the assertion that Bataille's barking dog is more than the sponge. This would mean that the Shoggotth is altogether too much being, too much material in the materialism. Bataille suggests that there is an immanence between the eater and the eaten, across the species and never within them. That is, despite the chaotic storm of immanence there must remain some capacity to distinguish the gradients of becoming without reliance upon, or at least total dependence upon, the powers of intellection to parse the universe into recognizable bits, properly digestible factoids. That is, if we undo Deleuze's aforementioned valorization of sense which, for his variation of materialism, performed the work of the transcendental, but refuse to reinstate Kant's transcendental disjunction between thing and appearance, then it must be a quality of becoming-as-being itself which can account for the discernible nature of things by sense. In an interview with Peter Gratton, Jane Bennett formulates the problem thusly: What is this strange systematicity proper to a world of Becoming? What, for example, initiates this congealing that will undo itself? Is it possible to identify phases within this formativity, plateaus of differentiation? If so, do the phases/plateaus follow a temporal sequence? Or, does the process of formation inside Becoming require us to theorize a non-chronological kind of time? I think that your student’s question: “How can we account for something like iterable structures in an assemblage theory?” is exactly the right question. Philosophy has erred too far on the side of the subject in the subject-object relation and has furthermore, lost the very weirdness of the non-human. Beyond this, the madness of thought need not override. /4/ - Ventriloquial Idealism or the Externality of Thought My aim is the opposite of Lovecraft's. He had an appreciation for natural scenery on earth and wanted to reach beyond the visible in the universe. I have no appreciation for natural scenery and want the objective universe to be a reflection of a character. Thomas Ligotti. “Devotees of Decay and Desolation.” Unless life is a dream, nothing makes sense. For as a reality, it is a rank failure [….] Horror is more real than we are. Thomas Ligotti. “Professor Nobody's Little Lectures on Supernatural Horror”. Thomas Ligotti's tales are rife with mannequins, puppets, and other brainless entities which of replace the valorized subject of philosophy – that of the free thinking human being. His tales such as “The Dream of the Manikin” aim to destroy the rootedness of consciousness. James Trafford has connected the anti-egoism of Ligotti to Thomas Metzinger – where the self is at best an illusion and we plead desperately for someone else to acknowledge that we are real. Trafford has stated it thus, “Life is played out as an inescapable puppet show, an endless dream in which the puppets are generally unaware that they are trapped within a mesmeric dance of whose mechanisms they know nothing and over which they have no control”. An absolute materialism, for Ligotti, implies an alienation of the idea which leads to a ventriloquil idealism. As Ligotti notes in an interview, “the fiasco and nightmare of existence, the particular fiasco and nightmare of human existence, the sense that people are puppets of powers they cannot comprehend, etc.” And then further elaborates that,“[a]ssuming that anything has to exist, my perfect world would be one in which everyone has experienced the annulment of his or her ego. That is, our consciousness of ourselves as unique individuals would entirely disappear”. The externality of the idea leads to the unfortunate consequence of consciousness eating at itself through horror which, for Ligotti, is more real than reality and goes beyond horror-as-affect. Beyond this, taking together with the unreality of life and the ventriloquizing of subjectivity, Ligotti's thought becomes an idealism in which thought itself is alien and ultimately horrifying. The role of human thought and the relation of non-relation of horror to thought is not completely clear in Ligotti's The Conspiracy Against the Human Race. Ligotti argues in his The Conspiracy Against the Human Race,that the advent of thought is a mistake of nature and that horror is being in the sense that horror results from knowing too much. Yet, at the same time, Ligotti seems to suggest that thought separates us from nature whereas, for Lovecraft, thought is far less privileged – mind is just another manifestation of the vital principal, it is just another materialization of energy. In his brilliant “Prospects for Post-Copernican Dogmatism” Iain Grant rallies against the negative definition of dogmatism and the transcendental, and suggests that negatively defining both over-focuses on conditions of access and subjectivism at the expense of the real or nature. With Schelling, who is Grant's champion against the subjectivist bastions of both Fichte and Kant, Ligotti's idealism could be taken as a transcendental realism following from an ontological realism. Yet the transcendental status of Ligotti's thought move towards a treatment of the transcendental which may threaten to leave beyond its realist ground. Ligotti states: Belief in the supernatural is only superstition. That said, a sense of the supernatural, as Conrad evidenced in Heart of Darkness, must be admitted if one's inclination is to go to the limits of horror. It is the sense of what should not be- the sense of being ravaged by the impossible. Phenomenally speaking, the super-natural may be regarded as the metaphysical counterpart of insanity, a transcendental correlative of a mind that has been driven mad. Again, Ligotti equates madness with thought, qualifying both as supernatural while remaining less emphatic about the metaphysical dimensions of horror. The question becomes one of how exactly the hallucinatory realm of the ideal relates to the black churning matter of Lovecraft's chaos of elementary particles. In his tale “I Have a Special Plan for This World” Ligotti formulates thus: A: There is no grand scheme of things. B: If there were a grand scheme of things, the fact – the fact – that we are not equipped to perceive it, either by natural or supernatural means, is a nightmarish obscenity. C: The very notion of a grand scheme of things is a nightmarish obscenity. Here Ligotti is not discounting metaphysics but implying that if it does exist the fact that we are phenomenologically ill-equipped to perceive that it is nightmarish. For Ligotti, nightmare and horror occur within the circuit of consciousness whereas for Lovecraft the relation between reality and mind is less productive on the side of mind. It is easier to ascertain how the Kantian philosophy is a defense against the diseases of the head as Kant armors his critical enterprise from too much of the world and too much of the mind. The weird fiction of both Lovecraft and Ligotti demonstrates that there is too much of both feeding into one another in a way that corrodes the Kantian schema throughly, breaking it down into a dead but still ontologically potentiated nigredo. The haunting, terrifying fact of Ligotti's idealism is that the transcendental motion which brought thought to matter, while throughly material and naturalized, brings with it the horror that thought cannot be undone without ending the material that bears it either locally or completely. Thought comes from an elsewhere and an elsewhen being-in-thought. The unthinkable outside thought is as maddening as the unthought engine of thought itself within thought which doesn't exist except for the mind, the rotting décor of the brain. /5/ - Hyperstitional Transcendental Paranoia or Self -Expelled Thought Weird fiction has been given some direct treatment in philosophy in the mad black Deleuzianism of Nick Land. Nick Land along with others in the 1990s created the Cyber Culture Research Unit as well as the research group Hyperstition. The now defunct hyperstitional website, an outgrowth of the Cyber Culture Research Unit, defined hyperstition in the following fourfold: 1-Element of effective culture that makes itself real. 2-Fictional quantity functional as a time-traveling device. 3-Coincidence intensifier. 4-Call to the Old Ones. The distinctively Lovecraftian character of hyperstition is hard to miss as is its Deleuzo-Guattarian roots. In the opening pages of A Thousand Plateaus Deleuze and Guattari write, “We have been criticized for over-quoting literary authors. But when one writes, the only question is which other machine the literary machine can be plugged into”. The indisinction of literature and philosophy mirrors the mess of being and knowing as post-correlationist philosophy, where philosophy tries to make itself real where literature, especially the weird, aims itself at the brain-circuit of horror. The texts of both Lovecraft and Ligotti work through horror as epistemological plasticity meeting with proximity as well as the deep time of Lovecraft and the glacially slow time of paranoia in Ligotti. Against Deleuze, and following Brassier, we cannot allow the time of consciousness, the Bergsonian time of the duree, to override natural time, but instead acknowledge that it is an unfortunate fact of existence as a thinking being. Horror-time, the time of consciousness, with all its punctuated moments and drawn out terrors, cannot compare to the deep time of non-existence both in the unreachable past and the unknown future. The crystalline cogs of Kant's account of experience as the leading light for the possibility of metaphysics must be throughly obliterated. His gloss of experience in Prolegomena to any Future Metaphysics could not be more sterile: Experience consists of intuitions, which belong to the sensibility, and of judgments, which are entirely a work of the understanding. But the judgments which the understanding makes entirely out of sensuous intuitions are far from being judgments of experience. For in the one case the judgment connects only the perceptions as they are given in sensuous intuition [....] Experience consists in the synthetic connection of appearances in consciousness, so far as this connection is necessary. Here it is difficult to dismiss the queasiness that Kant's legalism induces upon sight for both Badiou and David-Menard. Kant's thought becomes, as Foucault says when reflecting on Sade's text in relation to nature, “the savage abolition of itself”. For Badiou, Kant's philosophy simply closes off too much of the outside, freezing the world of thought in an all too limited formalism. Critical philosophy is simply the systematized quarantine on future thinking, on thinking which would threaten the formalism which artificially grants thought its own coherency in the face of madness. Even the becoming-mad of Deleuze, while escaping the rumbling ground, makes grounds for itself, mad grounds but grounds which are thinkable in their affect. The field of effects allows for Deleuze's aesthetic and radical empiricism, in which effects and/or occasions make up the material of the world to be thought as a chaosmosis of simulacra. Given a critique of an empiricism of aesthetics, of the image, it may be difficult to justify an attack on Kantian formalism with the madness of literature, which does not aim to make itself real but which we may attempt to make real. That is, how do Lovecraft's and Ligotti's materials, as materials for philosophy to work on, differ from either the operative formalisms of Kant or the implicitly formalized images of Deleuzian empiricism? It is simply that such texts do not aim to make themselves real, and make claims to the real which are more alien to us than familiar, which is why their horror is immediately more trustworthy. This is the madness which Blanchot discusses in The Infinite Conversation through Cervantes and his knight – the madness of book-life, of the perverse unity of literature and life a discussion which culminates in the discussion of one of the weird's masters, that of Kafka. The text is the knowing of madness, since madness, in its moment of becoming-more-mad, cannot be frozen in place but by the solidifications of externalizing production. This is why Foucault ends his famous study with works of art. Furthermore extilligence, the ability to export the products of our maligned brains, is the companion of the attempts to export, or discover the possibility of intelligences outside of our heads, in order for philosophy to survive the solar catastrophe. To borrow again from Deleuze, writing is inseparable from becoming. The mistake is to believe that madness is reabsorbed by extilligence, by great works, or that it could be exorcised by the expelling of thought into the inorganic or differently organic. Going out of our heads does not guarantee we will no longer mean we cannot still go out of our minds. This is simply because of the outside, of matter, or force, or energy, or thing-in-itself, or Schopenhauerian Will. In Lovecraft’s “The Music of Erich Zahn” an “impoverished student of metaphysics” becomes intrigued by strange viol music coming from above his room. After meeting the musician the student discovers that each night he plays frantic music at a window in order to keep some horridness at bay, some “impenetrable darkness with chaos and pandemonium”. The aesthetic defenses provided by the well trained brain can bear the hex of matter for so long, the specter of unalterability within it which too many minds obliterate, collapsing everything before the thought of thought as thinkable or at least noetically mutable on our own terms. Transcendental paranoia is the concurrent nightmare and promise of Paul Humphrey's work, of being literally out of our minds. It is the gothic counterpart of thinking non-conceptually but also of thinking never belonging to any instance of purportedly solid being. As Bataille stated, “At the boundary of that which escapes cohesion, he who reflects within cohesion realizes there is no longer any room for him” Thought is immaterial only to the degree that it is inhuman, it is a power that tries, always with failure, to ascertain its own genesis. Philosophy, if it can truly return to the great outdoors, if it can leave behind the dead loop of the human skull, must recognize not only the non-priority of human thought, but that thought never belongs to the brain that thinks it, thought comes from somewhere else. To return to the train image from the beginning “a locomotive rolling on the surface of the earth is the image of continuous metamorphosis” this is the problem of thought, and of thinking thought, of being no longer able to isolate thought, with only a thought-formed structure. [1] One of the central tenets of Francois Laruelle's non-philosophy is that philosophy has traditionally operated on material already presupposed as thinkable instead of trying to think the real in itself. Philosophy, according to Laruelle, remains fixated on transcendental synthesis which shatters immanence into an empirical datum and an a prori factum which are then fused by a third thing such as the ego. For a critical account of Laruelle's non-philosophy see Ray Brassier's Nihil Unbound. (shrink)

Warfare is becoming increasingly automated, from automatic missile defense systems to micro-UAVs (WASPs) that can maneuver through urban environments with ease, and each advance brings with it ethical questions in need of resolving. Proponents of lethal autonomous weapons systems (LAWS) provide varied arguments in their favor; robots are capable of better identifying combatants and civilians, thus reducing "collateral damage"; robots need not protect themselves and so can incur more risks to protect innocents or gather more information before using deadly force; (...) robots can assess situations more quickly and do so without emotion, reducing the likelihood of fatal mistakes due to human error; and sending robots to war protects our own soldiers from harm. However, these arguments only point in favor of autonomous weapons systems, failing to demonstrate why such systems need be made *lethal*. In this paper I argue that if one grants all of the proponents' points in favor of LAWS, then, contrary to what might be expected, this leads to the conclusion that it would be both immoral and illegal to deploy *lethal* autonomous weapons, because the many features that speak in favor of them also undermine the need for them to be programmed to take lives. In particular, I argue that such systems, if lethal, would violate the moral and legal principle of necessity, which forbids the use of weapons that impose superfluous injury or unnecessary harm. I conclude by highlighting that the argument is not against autonomous weapons per se, but only against *lethal* autonomous weapons. (shrink)

Mistakes are a fact of life, and the criminal law is sadly no exception to the rule. Wrongful convictions are rightfully abhorred, and false acquittals can likewise inspire outrage. In these cases, we implicitly draw a distinction between a court’s finding and a defendant’s actual guilt or innocence. These are intuitive concepts, but as this paper aims to show, contemporary use of the reasonable person standard in the law of self-defense muddles them. -/- Ordinarily, we can distinguish between a person's (...) material guilt or innocence and his juridical guilt or innocence. Someone is materially guilty if his actions in fact matched the conduct proscribed by the penal law. Someone is juridically guilty if he is found guilty by a tribunal, i.e., convicted by a judge or jury. When a tribunal convicts a innocent person or acquits a guilty person, the accuracy of its verdicts can be criticized. -/- There are three definitions of the reasonable person extant amongst courts and commentators: the reasonable person is either (1) a hypothetical ordinary, average person; (2) the embodiment of a community ideal; or (3) an embodiment of an objective ethical standard, i.e., ethical principles independent of community opinion. Nonetheless, after observing the circularity, vagueness, and lack of consistency in the definitions, wise courts and commentators have sometimes resorted to identifying the reasonable person with the judgment of the jury. -/- This piece argues that failure to settle on a fixed definition of the "reasonable person" in the criminal law of self-defense effectively conflates material guilt and innocence and juridical guilt and innocence at the doctrinal level. When courts do not clearly and consistently choose between standards one, two, and three, or when they expressly treat the reasonable person as a form of words standing in for the judgment of the jury, they make it conceptually impossible for observers outside the court system to apply a fixed, definite standard to assess the actual guilt of a person apart from the judgments of tribunals. -/- This paper's main purpose is to identify a conceptual knot rather than propose reforms. Still, it recommends two small changes meant to lift the confusion surrounding the reasonable person. First, it urges that courts expressly settle on one of the three definitions canvassed above. Second, it recommends that courts be mindful of the nature of the reasonable person standard and as such, be wary of treating conclusions about reasonableness as ordinary legal precedents, and wield the power of directed verdict aggressively to protect unpopular defendants from abuse by juries. (shrink)

Responding to recent calls made within UK Parliament for a government-backed definition of Islamophobia, this article considers the unanticipated consequences of such proposals. I argue that, considered in the context of related efforts to regulate hate speech, the formulation and implementation of a government-sponsored definition will generate unforeseen harms for the Muslim community. To the extent that such a definition will fail to address the government’s role in propagating Islamophobia through ill-considered legislation that conflates Islamist discourse with hate speech, the (...) concept of a government-backed definition of Islamophobia appears hypocritical and untenable. Alongside opposing government attempts to define Islamophobia (and Islam), I argue that advocacy efforts should instead focus on disambiguating government counter-terrorism initiatives from the government management of controversies within Islam. Instead of repeating the mistakes of the governmental adoption of the IHRA definition of antisemitism by promoting a new definition of Islamophobia, we ought to learn from the errors that were made. We should resist the gratuitous securitization of Muslim communities, rather than use such definitions to normalize compliance with the surveillance state. (shrink)

A standard strategy for defending a claim of non-identity is one which invokes Leibniz’s Law. (1) Fa (2) ~Fb (3) (∀x)(∀y)(x=y ⊃ (∀P)(Px ⊃ Py)) (4) a=b ⊃ (Fa ⊃ Fb) (5) a≠b In Kalderon’s view, this basic strategy underlies both Moore’s Open Question Argument (OQA) as well as (a variant formulation of) Frege’s puzzle (FP). In the former case, the argument runs from the fact that some natural property—call it “F-ness”—has, but goodness lacks, the (2nd order) property of its (...) being an open question whether everything that instantiates it is good to the conclusion that goodness and F-ness are distinct. And in the latter case, the argument runs from the fact that that Hesperus has, but Phosphorus lacks, the property of being believed by the ancient astronomers to be visible in the evening sky to the conclusion that Hesperus and Phosphorus are distinct. Kalderon argues that both the OQA and FP fail because in neither case is there good reason to believe that both (1) and (2) are true. The reason we are tempted to believe that they are true is because we mistake de dicto claims for de re claims. In order for FP to go through, the truth of the following de re claims needs to be established: FP1) Hesperus was believed by the ancient astronomers to be visible in the evening sky. (shrink)

This article advances two views on the role of evaluative judgment in clinical assessments of decision-making capacity. The first is that it is rationally impossible for such assessments to exclude judgments of the values a patient uses to motivate their decision-making. Predictably, and second, attempting to exclude such judgments sometimes yields outcomes that contain intractable dilemmas that harm patients. These arguments count against the prevailing model of assessment in common law countries—the four abilities model—which is often incorrectly advertised as being (...) value-neutral in respect of patient decision-making both by its proponents and in statute. A straightforward evaluative model of capacity assessment which wears its values on its sleeves and is biased against what are called ‘serious prudential mistakes’ avoids these rational and practical problems. (shrink)

Popper's account of refutation is the linchpin of his famous view that the method of science is the method of conjecture and refutation. This thesis critically examines his account of refutation, and in particular the practice he deprecates as avoiding a refutation. I try to explain how he comes to hold the views that he does about these matters; how he seeks to make them plausible; how he has influenced others to accept his mistakes, and how some of the ideas (...) or responses to Popper of such people are thus similarly mistaken. I draw some distinctions necessary to the provision of an adequate account of the so-called practice of avoiding a refutation, and try to rid the debate about this practice of at least one red herring. I analyse one case of 'avoiding' a refutation in detail to show how the rationality of scientific practice eludes both Popper and many of his commentators. Popper's skepticism about contingent knowledge prevents him from providing an acceptable account of contingent refutation, and so his method is really the method of conjecture and conjecture. He cannot do without the concepts of knowledge and refutation, however, if his account of science is to be plausible or persuasive, and so he equivocates between, amongst other things, refutation as disproof and refutation as the weaker notion of discorroboration. I criticise David Stove's account of this matter, in particular to show how he misses this point. An additional advantage Popper would secure from this equivocation is that if refutations were mere discorroborations they would be easier to achieve, and hence more common in science, than is the case. On Popper's weak notion of refutation, it would be possible to refute true theories since corroboration does not entail truth. There are two other related doctrines Popper holds about refutation which, if accepted, make some refutations seem easier to obtain than is the case. I call these doctrines 'Strong Popperian Falsificationism' (SPF) and 'Weak Popperian Falsificationism' (WPF). SPF is the false doctrine that if a prediction from some theory is refuted then that theory is refuted. Popper does not always endorse SPF. In particular, when confronted with a counterexample to it, he retreats to WPF, which is the false doctrine that if a prediction from some theory is refuted then that theory is prima facie refuted. WPF , or even SPF, can seem plausible if one has in mind predictions derived from theories in strong or conclusive tests of those theories, which I suggest Popper characteristically does. v Popper is disposed to describe any such case of predictive failure which does not lead to the refutation of the theory concerned as one in which that refutation has been avoided. To reinforce his portrayal of the refutation, or the attempted refutation, of major scientific theories as the rational core of scientific practice, Popper treats the so-called practice of avoiding a refutation as untypical of science, and much so-called avoidance he dismisses as unscientific or pseudo-scientific. I argue that his notion of avoiding a refutation is incoherent. Popper is further driven to believe that such avoidance is possible, however, because he conflates sentences with propositions and propositions with propositional beliefs. Also, he wishes to avoid being saddled with the relativisim that is a consequence of his weak account of refutation as discorroboration. Popper believes that ad hoc hypotheses are the most important of the unscientific means of avoiding a refutation. I argue that his account of such hypotheses is also incoherent, and that several hypotheses thought to be ad hoc in his sense are not. Such hypotheses appear to be so largely because of Popper's use of rhetoric and partly because these hypotheses are unacceptable for other reasons. I conclude that to know that a hypothesis is ad hoc in Popper's sense does not illuminate scientific practice. Popper has also attempted to explicate ad hocness in terms of some undesirable, or allegedly undesirable, properties of hypotheses or the explanations they would provide. The first such property is circularity, which is undesirable; the second such property is reduction in empirical content, which is not. In the former case I argue that non-circularity is clearly preferable to non-ad hocness as a criterion for a satisfactory explanation or explanans, as the case may be, and in the latter case that Popper is barking up the wrong tree. Some cases of so-called avoidance are obviously not unscientific. The discovery of Neptune from a prediction based on the reasonable belief that there were residual perturbations in the motion of Uranus is an important case in point, and one that is much discussed in the literature. The manifest failure of astronomers to account for Uranus's motion did not lead to the refutation of Newton's law of gravitiation, yet significant scientific progress obviously did result. Retreating to WPF, Popper claims that Newton's law was prima facie refuted. In general, astronomers have never shared this view, and they are correct in not doing so. I argue that the law of gravitation would have been prima facie refuted only if there had been good reason at the time to believe as false what is true, namely, that an unknown trans-Uranian planet was the cause of those Uranian residuals. Knowledge of the trans-Uranian region was then so slight that it was merely a convenient assumption, one which there was little reason to believe was false, that the known influences on Uranus's motion were the only such influences. I conclude that in believing vi or supposing that it was this assumption that was false, rather than the law of gravitation, Leverrier and Adams, the co-predictors of Neptune, were acting rationally and intelligently. Popper's commentators offer a variety of accounts of the alleged practice of avoiding a refutation, and of this case in particular. I analyse a sample of their accounts to show how common is the acceptance of some of Popper's basic mistakes, even amongst those who claim to reject his falsificationism, and to display the effects on their accounts of this acceptance of his mistakes. Many commentators recognize that anomalies are typically dealt with by changes in the boundary conditions or in other of the auxiliary propositions employed. Where many still go wrong, however, is in retaining the presupposition of WPF which encouraged Popper to hold the contradictory view about anomalies in the first place. Thus Imre Lakatos and others, for example, have developed a 'siege mentality' about major scientific theories; they see them as under continual threat of refutation from anomalies, and so come to believe that dogmatism is essential in science if such theories are to survive as they do. I examine various such doomed attempts to reconcile Popper with the history of science. It is a common failure in this literature to conflate or to fail to see the need to distinguish a belief from a supposition, and an epistemic reason from a pragmatic reason. I argue that only if one does draw these distinctions can one give an adequate account of how anomalies are rationally dealt with in science. The other important strand in Popper's thinking about 'avoidance' of refutation which has seriously misled some of his commentators is his unfounded belief in the dangers of ad hoc hypotheses. I examine the accounts that a sample of such commentators provide of the trans-Uranian planet hypotheses of Leverrier and Adams. These commentators imply or assert what Popper only hints at, namely, that there is something fishy about this hypothesis. I provide a further defence of the rationality of entertaining this hypothesis at the time. I conclude with a few remarks about Popper's dilemma in respect of scientific practice and his long standing emphasis on refutations. (shrink)

Wil Waluchow has advanced perhaps the most convincing argument in favour of what he eloquently termed ‘inclusive legal positivism’, the view that a given legal system could make legal validity depend on moral truths. This chapter refocuses the case for the opposing view of exclusive positivism on the metaphysical tension in seeing law as an institutional social fact and yet for its validity to depend on something that is not a social fact, developing an understanding of official mistake as (...) a way of highlighting that tension. If legal validity itself is understood as a socially constructed status (something with which any legal positivist would agree), key officials (as a group) cannot be wrong about the criteria sufficient for institutional membership having been met. While the officials cannot be wrong about the sufficient conditions, they can be wrong about the necessary (gatekeeping) ones and the moral criteria that inclusive positivists say could be included among the criteria of validity are invariably understood to be necessary conditions. That might look like a point in favour of inclusive positivism, but it is only the sufficient conditions that are constitutive of legal validity. Two facets of legal decisions are then marshalled to buttress the case for exclusive positivism: that almost every legal decision is also a determination of validity, and that all such decisions are systemically treated as correct until reviewed by a court of superior jurisdiction (which is itself a sufficient condition for membership). The implication of this is that moral criteria, understood as gatekeepers for legal validity, cannot be constitutive of legal validity. (shrink)

Natural philosophers make mistakes. Descartes got the laws of inertia wrong, Kant misunderstood the primacy of Euclidian geometry, and almost everyone (except perhaps Aristarchus of Samos) prior to the discovery of the telescope mistakenly thought that the solar system was geocentric. That we find Aristotle mistaken on questions in the life sciences — questions which required advances such as the microscope to even articulate — should come as little surprise. There seems nothing remarkable in the fact that Aristotle mistakenly thought (...) that the constitutive elements of the world were four (earth, wind, air, fire) or that the “organ” of thought was not the brain, but the heart. But the matter is otherwise when scholars examine Aristotle’s remarks about the female in his biological writings. When Aristotle claims that the leader of a hive is the king bee (HA 8 [9].40.623b9-10), that woman have smaller brains than men (PA 2.7.653a28-9), and that the female of the species have fewer teeth than the male (HA 2.3.501b19-21), Aristotle’s critics have suspected something more nefarious than simply poor observation at work. When Aristotle goes on to claim that “the female is, as it were, a mutilated male” (GA 2.3.737a27-8) or that “the female is more dispirited and more despondent than the male, more shameless and more lying, readier to deceive and possessing a better memory for grudges” (HA 8 [9].1.608b10-12), critics have accused Aristotle of trying to pass off misogyny as science. (shrink)

I argue that the dispute between two leading theories of interpretation of legal texts, textual originalism and textual evolutionism, depends on the false presupposition that changes in the way a word is used necessarily require a change in the word’s meaning. Semantic externalism goes a long way towards reconciling these views by showing how a word’s semantic properties can be stable over time, even through vicissitudes of usage. I argue that temporal externalism can account for even more semantic stability, however. (...) Temporal externalism is the theory that the content of an utterance at time t may be determined by developments in linguistic usage subsequent to t. If this semantic theory is correct, then the originalist and evolutionist positions effectively collapse. Originalism is correct in that the original meaning of the text is the meaning that is binding on jurists, but evolutionism is vindicated, as it is the current practices and standards that determine the meaning the text now has, and has always had. Objections to temporal externalism, and to its application to the interpretation of legal texts, are considered and addressed. (shrink)

In Fallibilism: Evidence and Knowledge, Jessica Brown identifies a number of problems for the so-called knowledge view of justification. According to this view, we cannot justifiably believe what we do not know. Most epistemologists reject this view on the grounds that false beliefs can be justified if, say, supported by the evidence or produced by reliable processes. We think this is a mistake and that many epistemologists are classifying beliefs as justified because they have properties that indicate that something (...) should be excused. Brown thinks that previous attempts to make this case have been unsuccessful. While the difficulties Brown points to are genuine, I think they show that attempts to explain a classificatory judgment haven't been successful. Still, I would argue that the classification is correct. We need a better explanation of this classificatory judgment. I will try to clarify the justification-excuse distinction and explain why it's a mistake to insist that beliefs that violate epistemic norms might be justified. Just as it's possible for a rational agent to act without justification in spite of her best intentions, it's possible that a rational thinker who follows the evidence and meets our expectations might nevertheless believe without sufficient justification. If our justified beliefs are supposed to guide us in deciding what to do, we probably should draw on discussions from morality and the law about the justification/excuse distinction to inform our understanding of the epistemic case. (shrink)

This paper addresses the question of whether rape-law reform should treat all cases of simple rape—nonconsensual sex that does not involve the use or credible threat of physical force—as a serious crime. Of primary concern here are those sexual interactions, often referred to as “date rape” or “acquaintance rape,” where the coercive element is not physical force as evidenced by reasonable resistance. Should, as some feminist reformers have urged, felony rape include sexual interactions that may not be fully consensual but (...) do not include the use of physical force? If so, can convincing answers be provided for due process questions about what constitutes valid consent to sex and how to tell when it is present. This paper warns of the difficulties in determining what counts as evidence of nonconsent and mens rea in light of the “linkage thesis” which takes valid consent in these cases to be bilateral and interactive, and to imply the absence of mens rea. Given the complexity of norms governing these sexual interactions and the high likelihood of reasonable mistakes about consent, this paper contends that criminalizing these cases of simple rape will often result in the unjust treatment of the relevant parties. (shrink)

Scientific inquiry takes onward course from the point where previous scientists had reached. But philosophical analysis initiates from scratch. Philosophy questions everything and chooses starting point for itself after having ruled out all the unsubstantiated and doubtful elements of the topic under study. Secondly, known realities must make sense. If a theory is officially 'counterintuitive', then either it is mere fiction or at the most; a distorted form of truth. This book's analysis is based on the philosophical principle that knowledge (...) is empirical and does not arise magically in absence of observational grounds. With philosophical approach, it was doubtful to accept that Georges Lemaître already knew Hubble's law in year 1927 that was yet to be found by Edwin Hubble in year 1929. Therefore this book started with denial of the claim that Lemaître already knew this law. But analysis of section I.III forced author to look the matter from original source and it came to surface that Lemaître knew this law in year 1927. But contrary to mainstream claim, Lemaître had not derived that law from general relativity (GR) equations rather had deduced from a method given by Hubble himself. Whereas whole case of the Big Bang Theory rests on misleading claim that Lemaître had derived this law solely from GR equations. The basis of this claim happened to be a manipulated translation (1931) of Lemaître's original 1927 article. People regard Big Bang Theory as truth because authoritative sources deceived them by presenting a manipulated translation in year 1931. This book is a philosophical analysis of original papers of Alexander Friedmann (1922), Georges Lemaître (1927), Edwin Hubble (1929) and Albert Einstein (1917) thus covers actual roots and origins of the Big Bang Model. In this book, only the core elements of the Big Bang Model i.e. 'Expansion of Universe' and 'CMBR' are covered. It has been sufficiently shown that 'expansion' is an illusion whereas CMBR is a proof that we live in a non-expanding infinite universe. If these two core elements of the standard Big Bang Model are precisely refuted then there is nothing crucial left with the standard model. For readers of this book at least, Big Bang Theory shall become a story of past mistakes. Author is not an authoritative source on science topics therefore readers must download all the above mentioned original papers and check all the points outlined in this book from relevant original papers. Unlike reading from an authoritative source that makes readers relaxed and careless but enables authorities to deceive them in worst way possible, this book requires readers to remain alert on all the points discussed in the book and verify everything from original sources whose links are given at the end of this description and also provided in footnotes section of the book. This book is not a judgment of the topic rather it is like a case presented by an advocate while readers are the judges. Readers are required to apply their own critical judgment to conclude the matter by themselves. After carefully reading this book, readers will also start taking 'authoritative sources' with due care and it will become difficult for the 'authorities' to deceive them again. (shrink)

This article considers the novel approach for epistemological interpretation of biomimetics or bionics and biosimilarity in different abiogenetic works with the terminological correction for elimination of the reifications (concretisms, hypostatizations), simplified metaphors and the results of metonymy. In the last part of this article one can see the analysis of the mistakes and problems of complex abiogenetic or supramolecular evolution projects within the aspects of the Conway law and the social organization of science and publishing sphere in subjective postmodern capitalistic (...) conditions. (shrink)

Character education in schools has been high on the UK political agenda for the last few years. The government has invested millions in grants to support character education projects and declared its intention to make Britain a global leader in teaching character and resilience. But the policy has many critics: some question whether schools should be involved in the formation of character at all; others worry that the traits schools are being asked to cultivate are excessively competitive or military. In (...) this pamphlet Randall Curren sets out a robust defence of character education. He welcomes the political support it presently enjoys, but contends that greater clarity about the nature, benefits and acquisition of good character is essential. In particular, he argues that too narrow a focus on traits like perseverance and resilience is a serious mistake: these traits are only virtues when they are part of a wider set of moral and intellectual qualities, and when their exercise is guided by good judgment. Curren offers us a compelling and coherent account of what good character is and how it might be cultivated in schools. He explains why schools must be needs-supporting environments that provide students with opportunities to engage in rewarding activity, and why cultivating good character implies promoting the ‘fundamental British values’ of democracy, the rule of law, individual liberty, and mutual respect and tolerance. His groundbreaking pamphlet promises to expand the scope and strengthen the foundations of character education in British schools, and should go a long way towards allaying the fears of its detractors. (shrink)

Unreproducibility stemming from a loss of data integrity can be prevented with hash functions, secure sketches, and Benford's Law when combined with the historical practice of a Pli Cacheté where scientific discoveries were archived with a 3rd party to later prove the date of discovery. Including the distinct systems of preregistation and data provenance tracking becomes the starting point for the creation of a complete ontology of scientific documentation. The ultimate goals in such a system--ideally mandated--would rule out several forms (...) of dishonesty, catch computational and database errors, catch honest mistakes, and allow for automated data audits of large collaborative open science projects. (shrink)

Is human free will compatible with the natural laws of the universe? To “compatibilists” who see free actions as emanating from the wants and reasons of human agents, free will looks perfectly plausible. However, “incompatibilists” claim to see the more ultimate sources of human action. The wants and reasons of agents are said to be caused by physical processes which are themselves mere natural results of the previous state of the world and the natural laws which govern it. This paper (...) argues that the incompatibilists make a mistake in appealing to such non-agent sources of human action. They fail to realize that free will may exist at one scale, but not at the scales where they look. When free will is considered from the correctly scaled perspective, it does seem compatible with determinism and natural laws. (shrink)

Let (leeway) incompatibilism be the thesis that causal determinism is incompatible with the freedom to do otherwise. Several prominent authors have claimed that incompatibilism alone can capture, or at least best captures, the intuitive appeal behind Jorge Luis Borges's famous “Garden of Forking Paths” metaphor. The thought, briefly, is this: the “single path” leading up to one's present decision represents the past; the forking paths that one must decide between represent those possible futures consistent with the past and the laws (...) of nature. But if determinism is true, there is only one possible future consistent with the past and the laws and, hence, only one path to choose from. That is, if determinism is true, then we are not free to do otherwise. In this paper, I argue that this understanding of the Garden of Forking Paths faces a number of problems and ought to be rejected even by incompatibilists. I then present an alternative understanding that not only avoids these problems but still supports incompatibilism. Finally, I consider how various versions of (leeway) compatibilism fit with the Garden of Forking Paths as well as the broader question of whether metaphors, however intuitive, have any dialectical force in the debates over freedom. (shrink)

The mistake of quantum physics relying on classical physics with its concept of reality confined to mas and space. The mistake of viewing the photon as a particle. The mistake of ignoring the latent identities of entities.

Laws can be evaluated as better or worse relative to different normative standards. But the standard set by the Rule of Law defines a kind-relative standard of evaluation: features like generality, publicity, and non-retroactivity make the law better as law. This fact about legal evaluation invites a comparison between law and other “goodness-fixing kinds,” where a kind is goodness-fixing if what it is to be a member of the kind fixes a standard for evaluating instances as better or worse. Indeed, (...) for any goodness-fixing kind, K, that sets a standard, S, for evaluating Ks as Ks, we can ask: (1) How does the nature of Ks explain S? (2) Does being a K depend on meeting a minimum threshold of S-relative goodness? In the case of law and its kind-relative standard defined by the Rule-of-Law virtues, these questions lack settled answers. Although Raz (1979, 2019) offers some discussion, I argue that his answers have the surprising upshot of rendering law sui generis relative to other goodness-fixing kinds, and that preserving continuity with other such kinds involves revising the general picture. On the revised picture, law construed as a system of rules is subject to kind-relative evaluation because it is (a) a functional artifact, (b) with an essential function of realizing a limited normative ideal, and (c) its being minimally good at that function—that is, its realization of the relevant normative ideal to some degree—is a condition and ground of law’s existence, since all functional artifacts appear to be subject to such threshold conditions. (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.

This paper describes and defends a novel and distinctively egalitarian conception of the rule of law. Official behavior is to be governed by preexisting, public rules that do not draw irrelevant distinctions between the subjects of law. If these demands are satisfied, a state achieves vertical equality between officials and ordinary people and horizontal legal equality among ordinary people.

Is the virtue of the good citizen the same as the virtue of the good man? Aristotle addresses this in Politics 3.4. His answer is twofold. On the one hand, (the account for Difference) they are not the same both because what the citizen’s virtue is depends on the constitution, on what preserves it, and on the role the citizen plays in it, and because the good citizens in the best constitution cannot all be good men, whereas the good man’s (...) virtue is uniform. On the other hand, (the account for Identity) the two virtues are identical in the good men in the best constitution, in which all are good citizens, each possessing the ability for ruling and for being ruled. This nuanced answer can be seen as Aristotle’s synthesis of a Periclean view (contribution to state blots out personal wrongs) and a Socratic view (no good citizen is without justice). Its nuances reflect the extent to which Aristotle’s conceptions of good citizenship and the best constitution accommodate deviations of what is probable from the human ideal set out in his ethical writings. In the present chapter, I will first address three puzzles regarding the nuances of Aristotle’s answer. Second, I will consider one question about its implication: Does Aristotle’s account for Difference turn out to entail something ultra-Periclean: that no one can simultaneously be a good man and a good citizen in any constitution other than the best? I shall argue the negative. (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)

I elaborate and defend a "necessitarian" interpretation of Kant's account of laws.

Scholars interested in the characterology presupposed by constitutional government have occasionally turned to Plato’s Laws, one of the earliest and most penetrating treatments of the subject. Even so, interpreters have neglected a vital tension that the Laws presents as coeval with lawfulness itself. Through a close reading of the dialogue’s opening passages, I argue that the rule of law for Plato is implicated in a certain paradox: it both prohibits and requires the imitation of god. Law cannot safely originate with (...) human beings; yet human beings must involve themselves nonetheless in laying law down. Trustworthy lawgivers must revere the gods while at the same time emulating them, must somehow make law themselves while regarding that very task as beyond their ken. Although the political psychology of lawfulness would therefore seem incoherent, I conclude by surveying reasons for thinking this inference unwarranted. (shrink)

The primary aim of this chapter is to show that several missteps made by others in in their thinking about law as an artefact are due to misconceptions about the role of intentions in understanding law as an artefact. I first briefly recap my own contention that law is a genre of institutionalized abstract artefacts (put forth in The Functions of Law (OUP 2016) and subsequent papers), mostly following Searle’s understanding of institutions and Thomasson’s understanding of public artefacts. I highlight (...) the central place that this theory affords law’s functions, without requiring the theorist to say that possession or performance of the function is either necessary or sufficient for inclusion in the class of law. Some of the most common misunderstandings are exemplified in Brian Leiter’s paper ‘Legal Positivism about the Artifact Law’. He thinks that holding an intentionalist view of artefacts commits the theorist to privileging drafters’ intentions when interpreting law. (It doesn’t.) He also has confusions about the differences between artefact tokens and artefact types leading him to a problematically broad understanding of artefacts. Another problem can be seen in thinking that functional understandings of artefacts are vulnerable to the same problems that arise in functional explanations for biological systems. I go on to consider the work of Luka Burazin and Corrado Roversi, addressing worries that making intentionality central to artefacts implies too much conscious thought is required to make one, noting that several theories of intentionality do not require conscious thought in the execution of intentional action. While those who think a central place for intentionality threatens to leave us unable to explain customary law, this can be dealt with by noting the important distinction between customary rules and customary laws (where the latter requires a decision to enlist public aid in redressing violations). I claim that authors’ intentions are communicated requests for the artefacts’ audiences to see the artefacts as members of their putative kinds. Finally, I address the question of whether or not legal systems are themselves artefacts and institutions, given that they may or may not have been intentionally created. An early lawgiver might have created a legal system by accident in the process of handing down the first laws. I raise the possibility that we might want to impute intentionality to necessary by-products of artefact creation, seeing those by-products as artefacts as well. (shrink)

Three popular views regarding the modal status of the laws of nature are discussed: Humean Supervenience, nomic necessitation, and scientific/dispositional essentialism. These views are examined especially with regard to their take on the apparent modal force of laws and their ability to explain that modal force. It will be suggested that none of the three views, at least in their strongest form, can be maintained if some laws are metaphysically necessary, but others are metaphysically contingent. Some reasons for thinking that (...) such variation in the modal status of laws exists will be presented with reference to physics. This drives us towards a fourth, hybrid view, according to which there are both necessary and contingent laws. The prospects for such a view are studied. (shrink)

Proponents of the rule of law argue about whether that ideal should be conceived formalistically or in terms of substantive values. Formalistically, the rule of law is associated with principles like generality, clarity, prospectivity, consistency, etc. Substantively, it is associated with market values, with constitutional rights, and with freedom and human dignity. In this paper, I argue for a third layer of complexity: the procedural aspect of the rule of law; the aspects of rule-of-law requirements that have to do with (...) "natural Justice" or "procedural due process." These I believe have been neglected in the jurisprudential literature devoted specifically to the idea of the rule of law and they deserve much greater emphasis. Moreover procedural values go beyond elementary principles like the guarantee of an unbiased tribunal or the opportunity to present and confront evidence. They include the right to argue in a court about what the law is and what its bearing should be on one's situation. The provision that law makes for argument is necessarily unsettling, and so this emphasis on the procedural aspect highlights the point predictability should not be regarded as the be-all and end-all of the rule of law. (shrink)

Over the past 50 years, there has been a great deal of philosophical interest in laws of nature, perhaps because of the essential role that laws play in the formulation of, and proposed solutions to, a number of perennial philosophical problems. For example, many have thought that a satisfactory account of laws could be used to resolve thorny issues concerning explanation, causation, free-will, probability, and counterfactual truth. Moreover, interest in laws of nature is not constrained to metaphysics or philosophy of (...) science; claims about laws play essential roles in areas as diverse as the philosophy of religion (e.g., in the argument from design) and the philosophy of mind (e.g., in the formulation of Davidson’s anomalous monism). In my dissertation, I consider and reject the widely-held thesis that the facts concerning laws can be reduced to the facts concerning the particular entities that the laws “govern,” and that the laws thus have no independent existence. I instead defend a version of nomic primitivism, according to which the facts about laws cannot be reduced to facts that are themselves non-nomic – i.e., to facts that do not fundamentally involve laws, counterfactuals, causes, etc. Insofar as the truth or falsity of reductionism about laws has implications for many of the problems mentioned above, I think that this result should be of interest even to those who who do not work in metaphysics or the philosophy of science. My methodology, which I lay out and defend in Chapter One, is a version of Carnapian explication. This method emphasizes the importance of articulating and maintaining clear distinctions between (1) the vague concept (or concepts) law of nature inherent in ordinary language and scientific practice and (2) the precise analyses of “law of nature” that philosophers have proposed as potential replacements for this concept. I argue that metaphysics-as-explication has clear advantages over rival conceptions of metaphysical methodology; in particular, it allows us to formulate evaluative criteria for metaphysical claims. In Chapter Two, I offer an example of how careful attention to concepts already in use can help resolve philosophical debate. Specifically, I argue that much recent literature has mistakenly assumed that there is only one concept of “law of nature” in use, while there are in fact at least two. Strong laws are the principles pursued by fundamental physics: they are true, objective, and bear distinctive relationships to counterfactuals and explanation. Weak laws, by contrast, lack at least one of these distinctive characteristics but play central roles in both the “special sciences” and in everyday life. In Chapters Three and Four, I offer extended arguments against the two most prominent versions of reductionism about laws – Humeanism and law necessitarianism. According to philosophical Humeans, the laws of nature supervene upon the non-modal, non-nomic facts concerning the behavior of particular things at particular times and places. Law necessitarians, by contrast, argue that the laws are in fact metaphysically necessary, and that which laws there are is determined by a class of primitive, modally loaded facts concerning the essences, natures, or dispositions. I argue that both of these views are mistaken insofar as they disagree with well-entrenched scientific practices and those in favor of reductionism have failed to provided sufficient reason for thinking that these practices should be revised. Much of my argument is focused on the role played by a number of supposed methodological principles, including appeals to intuition, parsimony, and methodological naturalism. While the conclusions of this dissertation are explicitly constrained to laws, many of the arguments should be of interest to those who are concerned about philosophical methodology (especially in the role of intuition in philosophical argument) or the appropriate relation between metaphysics, science, and the philosophy of science. (shrink)