This Paper addresses the problem of statelessness, a problem which remains despite treaties and judicial decisions elaborating distinct rules to protect stateless persons. I explain why this has been so. Drawing from the work of Bernhard Waldenfels, I argue that international and domestic courts have presupposed a territorial sense of space, a territorial knowledge and the founding date for the territorial structure of a state-centric international legal community. I then focus upon the idea that an impartial third party can resolve (...) a dispute involving stateless persons by deferring to a universal rule. I call the third party the ‘rule of law third’. Such a rule, I argue, presupposes a presupposed knowledge over stateless persons. The Third takes for granted the territorial boundary of a legal structure, a boundary which excludes the recognition of outsiders to the boundary. (shrink)

Almost every facet of the experience of musical listening—from pitch, to rhythm, to the experience of emotion—is thought to be shaped by the meeting and thwarting of expectations. But it is unclear what kind of mental states these expectations are, what their format is, and whether they are conscious or unconscious. Here, we distinguish between different modes of musical listening, arguing that expectations play different roles in each, and we point to the need for increased collaboration between music psychologists and (...) philosophers in order to arrive at a more detailed characterisation of conscious musical experience and the role of expectations therein. (shrink)

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)

I investigate the role of the subject in judgment in Kant, Frege, and Husserl, situating it in the broader and less-often-considered context of their accounts of presentation as well as judgment. Contemporary philosophical usage of “representation” tends to elide the question of what Kant called the constitution of content, because of a reluctance, traced to Frege’s anti-psychologism, to attend to subjectivity. But for Kant and Husserl, anti-psychologism allows for synthesis as the subjective act necessary for both “mere presentation” and (...) judgment. In Begriffshrift, Frege alludes to a significant logical role for the subjective act of judgment, and in later work, traces of this logical role remain in the intensional notions of grasping a thought and judging as acknowledging its truth. But Frege’s anti-psychologism blocks interpreting these subjective notions in term of synthesis. Although similar in certain ways to Frege and equally anti-psychologistic, Husserl’s theory of judgment in the Logical Investigations maintains a role for subjective syntheses for presentations and judgments, and goes beyond Kant in allowing for a kind of objectivity at the level of non-judgment presentations. These two great anti-psychologists at the dawn of the parallel heydays of linguistic and phenomenological analysis are thus differentiated by the fates they assign to the act of synthesis. (shrink)

Even if one sees the law as “a self-contained system of legal reasoning” from which we deduce “neutral,” non-political conclusions from “general principles and analogies among cases and doctrines” (including formalist claims that judges simply call “balls and strikes” like umpires in a baseball game), one should still consider certain characteristics of the party making such deductions or calling such “balls and strikes.” [Relevant citations to quoted language are in the Article.] If such decision maker has questionable motivations, lacks proper (...) perspective, does not grasp the flexibility in the concepts in play, does not grasp the restraints on concepts in play, does not follow the proper processes involved, and lacks the detail, courage, and tenacity needed to reach the proper “deduction” or “call,” on the face of things the formalist, too, should have reason to re-examine any “deduction” or “call” by such party. Thus, even the formalist should not deny the critical role of virtue when examining legal analysis, a role belying the notion of law as a "self-contained system of legal reasoning." -/- This Article thus explores basic freedoms and restraints applicable to legal analysis and the role that virtue plays in balancing such freedoms and restraints. Such exploration covers: (i) the origin, nature, and purpose of concepts and categories used in legal analysis; (ii) the experiential nature of the meaning of such concepts and categories used in legal analysis; (iii) the freedoms and restraints applicable to such concepts and categories as a result of either experience or of the concepts or categories themselves; (iv) how workable notions of virtue rightly balance such freedoms and restraints in legal analysis; (v) the distinction between such virtue and skill; (vi) reconceiving the analytically virtuous mean as a proper balance between such applicable freedoms and restraints; and (vii) defining and surveying the particular virtues that lead us to such proper balance and thus to good legal analysis. My hope is that lawyers and law schools in their curricula will follow such explorations as well in a quest to better understand legal analysis and how to teach and perform it well. (shrink)

David Hume’s legal theory has normally been interpreted as bearing close affinities to the English common law theory of jurisprudence. I argue that this is not accurate. For Hume, it is the nature and functioning of a country’s legal system, not the provenance of that system, that provides the foundation of its authority. He judges government by its ability to protect property in a reliable and equitable way. His positions on the role of equity in the law, on artificial (...) reason and the esoteric nature of the law, and on the role of judges in the legal system are all at odds with those of the common lawyers. (shrink)

This paper argues that the concept of the Earth plays a pivotal role in Merleau-Ponty’s thinking in two ways. First, the concept assumes a special importance in terms of Merleau-Ponty’s relation to Husserl via the fragment known as “The Earth Does Not Move.” Two, from this fragment, the Earth marks a key theme around which Merleau-Ponty’s late philosophy revolves. In particular, it is with the concept of the Earth that Merleau-Ponty will develop his archaeologically oriented phenomenology. To defend this (...) claim, the paper unfolds in three stages. First, I provide a preliminary reading of Husserl’s fragment, focusing in particular on the co-constitution of body and Earth. Two, I turn to Merleau-Ponty’s interpretations of this fragment, especially in the lectures on nature and then in the later lectures on Husserl. From these varying interpretations, the germs of Merleau-Ponty’s archaeological phenomenology are conceived. Accordingly, in the final part of the paper, I claim that Merleau-Ponty’s account of the Earth is Husserlian insofar as it reinforces the primordial “ground (sol) of experience” but at the same time marks a departure from Husserl insofar as the Earth registers a brute or wild layer that resists phenomenology. (shrink)

[This draft is dated November 2007. I wrote it while I was a fellow at the Center for 21st Century Studies at UW-Milwaukee, in 2005-06, and published it only on the Center's website as a working paper. Many of the core ideas in this paper wound up in "Receptivity and the Will," Nous 2009, "Assertion, Sincerity, and Knowledge," Nous 2013, and "Assurance and Warrant," Philosophers' Imprint 2014 -- though formulated rather differently. What follows is the original abstract.] This working paper (...) extends a project that I’ve been developing for several years on the role of trust, including self-trust, in rationality and personal autonomy. I’m interested equally in epistemic questions (what to believe) and in practical questions (how to act), though the present paper addresses only the former. In an earlier paper on the epistemic side of my project, “Telling as Inviting to Trust” (Philosophy and Phenomenological Research, May 2005), I offered an explanation of how you can get an entitlement to believe something simply by trusting someone when she tells you it’s so, the entitlement deriving not merely from the assurance but from the trustworthy character of the one who gives it. The present paper adapts my explanation of believing-on-another’s-word to belief as such, via the observation that you can’t form a belief without trusting someone’s judgment – if only your own. I view intrapersonal reasoning about what to believe as an internalization of the interpersonal cases I analyzed in that earlier paper. In each instance, belief-formation has a second-personal dynamic: an invitation to trust on one side, trusting acceptance of that invitation on the other. If I’m right, the dynamic at the heart of all belief manifests not autonomy but a trusting heteronomy, whereby you render yourself appropriately receptive to judgment – your own or another’s. (The idea that judging is inviting self-trust first occurred to me in 2002, but I didn’t get a chance to develop it properly till 2005-06, my fellowship year at the Center for 21st Century Studies. I appreciate the support.). (shrink)

This article will explain that the difficulty in understanding the role of the "We" in the Phenomenology arises from the confusion between the two distinct ways that consciousness appears in its basic nature, where "consciousness is, on the one hand, consciousness of the object, and on the other, consciousness of itself" (PhdG §85). Firstly, there is consciousness of an object, let's call it C(O), which also holds that there is a distinction between itself, C(O), and the object in-itself, "O." (...) Thus we have C(O) + O. Here, "consciousness simultaneously distinguishes itself from something, and at the same time relates itself to it" (PhdG §82). Secondly we have a consciousness of C(O) + O, which can be written as C[C(O)+O]. The first "C" in this formula is called observing consciousness, and the second "C" is the observed consciousness. The observed consciousness may also be called natural or ordinary consciousness. However, both observing and observed consciousness are essentially one and the same consciousness, "C," merely differing in form, at one and the same time both subject and object to itself. (shrink)

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

Husserl’s phenomenology opens itself with a critique of positive sciences. Husserl problematizes the hardcore presupposition of positivism that the world is a definite sort of an existential totality of objects and thus it is exhaustible with empirical data and deductive-conceptual abstraction on the basis of causalspatio-temoprality. Criticizing the wholesome reduction of nature into a physical reality and the instrumentalizing of theoretical reason, he proposes transcendental phenomenology, as an ideal form of science. Self-entitled as the genuine science, the science of origin, (...) the science of all sciences, etc., it concerns itself with the matter of validity. Claiming that validating objectivity as such and the meaning of scientific objectification is something of which onlyphenomenological reflection on pure consciousness is capable and that the positivistic objectivity is and must be founded on transcendental subjectivity, Husserl radically idealistically revised the whole positivistic concept of evidence and givenness of a fact and substituted it with the phenomenological notion of apriori self-evidence and originary givenness of primordial intentional consciousness. Nevertheless, it is noticed that the absolute universal validity of positivistic objectivity was never rejected or questioned; objectivity is still in and of itself an absolute criterion of scientificity in Husserl. This paper will argue that the idealistic turn toward subjectivity takes place through factualization of transcendentality and this, by bestowing apriori apodicticity with facticity, even enhances more the supreme epistemological function of positivity. It will discuss such positivistic drive, directly bequeathed from the very cultural ethos at which phenomenological criticism targeted, as an important locomotive for Husserl’s program and point out an antinomical consequence with which it is to be faced as a consequence. (shrink)

The paper attempts to develop an immanent conception of natural law and natural rights of Mohandas Karamchand Gandhi.

Tort law depends on three key concepts: causation, responsibility, and fault. However, I argue that the three key concepts are neither necessary, nor sufficient, for tort.

In light of recent criticisms by Woodward (2017) and Rescorla (2018), we examine the relationship between mechanistic explanation and phenomenological laws. We disambiguate several uses of the phrase “phenomenological law” and show how a mechanistic theory of explanation sorts them into those that are and are not explanatory. We also distinguish the problem of phenomenological laws from arguments about the explanatory power of purely phenomenal models, showing that Woodward and Rescorla conflate these problems. Finally, we argue that the temptation to (...) pit mechanistic and interventionist theories of explanation against one another occludes important and scientifically relevant research questions. (shrink)

Social scientists have paid insufficient attention to the role of law in constituting the economic institutions of capitalism. Part of this neglect emanates from inadequate conceptions of the nature of law itself. Spontaneous conceptions of law and property rights that downplay the role of the state are criticized here, because they typically assume relatively small numbers of agents and underplay the complexity and uncertainty in developed capitalist systems. In developed capitalist economies, law is sustained through interaction between private (...) agents, courts and the legislative apparatus. Law is also a key institution for overcoming contracting uncertainties. It is furthermore a part of the power structure of society, and a major means by which power is exercised. This argument is illustrated by considering institutions such as property and the firm. Complex systems of law have played a crucial role in capitalist development and are also vital for developing economies. (shrink)

According to a widely shared view, a radical change took place in the role of intersubjectivity in Hegel's philosophy somewhere between Jena and Berlin. For instance, Jürgen Habermas's judgement is that whereas in the Jena writings – in the JenaRealphilosophien, and perhaps still in the 1807Phenomenology of Spirit– Hegel conceived of intersubjectivity as an essential element in the constitution of subjectivity and of objectivity, in Berlin Hegel's intersubjectivist conception was replaced by a metaphysics of the absolute I or absolute (...) self-consciousness, in which intersubjectivity no longer plays any important constitutive role.Perhaps it is due to something like this view having been mostly taken for granted even among Hegel-specialists that scholarly literature on intersubjectivity in Hegel's late Encyclopaedic system is indeed very scarce. Robert R. Williams'Hegel's Ethics of Recognitionargues convincingly that the theme of intersubjective recognition can be seen as a central thread running through the whole of Hegel's Encyclopaedic philosophy ofobjectivespirit. But very little has so far been written on the theme of intersubjectivity or intersubjective recognition in Hegel's Encyclopaedic philosophy of subjective spirit. My thesis in what follows is that intersubjectivity or intersubjective mediation in recognition can and should in fact be seen as an essential constituent also of subjective spirit as Hegel conceptualises it in the 1830 Encyclopaedia. (shrink)

In this paper, we develop an impure somatic theory of emotion, according to which emotions are constituted by the integration of bodily perceptions with representations of external objects, events, or states of affairs. We put forward our theory by contrasting it with Prinz's pure somatic theory, according to which emotions are entirely constituted by bodily perceptions. After illustrating Prinz's theory and discussing the evidence in its favor, we show that it is beset by serious problems—i.e., it gets the neural correlates (...) of emotion wrong, it isn't able to distinguish emotions from bodily perceptions that aren't emotions, it cannot account for emotions being directed towards particular objects, and it mischaracterizes emotion phenomenology. We argue that our theory accounts for the empirical evidence considered by Prinz and solves the problems faced by his theory. In particular, we maintain that our theory gives a unified and principled account of the relation between emotions and bodily perceptions, the intentionality of emotions, and emotion phenomenology. (shrink)

The hermeneutic pragmatism explored in this article timely examines how “post-truth” claims over-estimate semantic freedoms while at the same time underestimating semantic and pre-semantic restraints. Such pragmatism also timely examines how formalists err by committing the reverse errors. Drawing on insights from James, Peirce, Putnam, Rorty, Gadamer, Derrida, and others, such hermeneutic pragmatism explores (1) the necessary role of both internal and objective experience in meaning, (2) the resulting instrumental nature of concepts required to deal with such experience, (3) (...) the related need for workability to apply to the “the collectivity of experience’s demands, nothing being omitted,” (4) the inherent role of morality and other norms in measuring such workability, (5) the semantic as well as experiential nature of our workable realities, (6) the semantic freedoms involved in constructing, framing, and retaining our workable realities and concepts, and (7) the semantic, pre-semantic, and other restraints on constructing, framing, and retaining our workable realities and concepts. -/- Such hermeneutic pragmatism also introduces Eunomia, a real-world alternative to Dworkin’s superhuman judge Hercules. Named after the Greek goddess of good order, the human Eunomia represents the reasonable judge excellently versed in (among other things) legal theory, legal practice, linguistics, and philosophy of language. Additionally, in its appendices, this article surveys the pragmatic restraints of “implementives” and provides a detailed overview of pragmatic “workability” restraints for both law and fact. -/- (By “sense” the title of this article means not only “meaning conveyed or intended” but also “capacity for effective application of the powers of the mind as a basis for action or response.” See Sense, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2014) “Workable” has the broad meaning discussed in Sections II, IV, and Appendix C of the Article, and "good" is further explored in the section on Eunomia, namesake of the Greek goddess of good order.) -/- Keywords: Pragmatism, Hermeneutic, Truth, Rule of Law, William James, C.S. Peirce, Hilary Putnam, Richard Rorty, Gadamer, Habermas, Derrida, Lon Fuller, H.L.A. Hart, Post-truth, Postmodernism, Trump, Rhetoric, Meaning, Interpretation, Metaphor, Category, Lifeworld, Formalism, Framing, Deconstruction. (shrink)

Special science generalizations admit of exceptions. Among the class of non-exceptionless special science generalizations, I distinguish minutis rectis generalizations from the more familiar category of ceteris paribus generalizations. I argue that the challenges involved in showing that mr generalizations can play the law role are underappreciated, and quite different from those involved in showing that cp generalizations can do so. I outline a strategy for meeting the challenges posed by mr generalizations.

One sometimes believes a proposition without grasping it. For example, a complete achromat might believe that ripe tomatoes are red without grasping this proposition. My aim in this paper is to shed light on the difference between merely believing a proposition and grasping it. I focus on two possible theories of grasping: the inferential theory, which explains grasping in terms of inferential role, and the phenomenal theory, which explains grasping in terms of phenomenal consciousness. I argue that the phenomenal (...) theory is more plausible than the inferential theory. (shrink)

Meta-laws, including conservation laws, are laws about the form of more specific, phenomenological, laws. Lange distinguishes between meta-laws as coincidences, where the meta-law happens to hold because the more specific laws hold, and meta-laws as constraints to which subsumed laws must conform. He defends this distinction as a genuine metaphysical possibility, such that metaphysics alone ought not to rule one way or another, leaving it an open question for physics. Lange’s distinction marks a genuine difference in how a given meta-law (...) can be used in explanations. Yet, I argue, it is not simply an empirical matter as to whether a given conservation law is a constraint or a coincidence. There is no set matter of fact about the world that determines this, and physics alone will not be able to return a determinate verdict on a law-by-law basis, even while there is a genuine difference between any given law as constraint and as coincidence. Rather, the difference marks different ways of treating the same law in a theoretical setting: by shifting the explanatory context, treating the same law as part of a different mathematical structure, it can be a genuine constraint and a genuine coincidence. The difference between constraint and coincidence relates to the way in which we use a law in specific theoretical and explanatory settings. Because the same law can appear in multiple contexts, it can be used in these genuinely different ways, without itself ‘‘really’’ being either one or the other as some atomistic empirical fact. Conservation laws as constraints and conservation laws as coincidences are both genuine theoretical roles that the same law can play. I conclude by considering how this pragmatist construal of constraints versus coincidences reveals how two parts of Lange’s work in this section of the book are unexpectedly independent of one another. -/- . (shrink)

The paper investigates the role played by ethical deliberation and ethical judgment in Wittgenstein's early thought in the light of twentieth?century German legal philosophy. In particular the theories of the phenomenologists Adolf Reinach, Wilhelm Schapp, and Gerhart Husserl are singled out, as resting on ontologies which are structurally similar to that of the Tractatus: in each case it is actual and possible Sachverhalte which constitute the prime ontological category. The study of the relationship between the states of affairs depicted, (...) e.g., in the sentences of a legal trial and prior fact?complexes to which these may correspond suggests one possible connecting link between the logical and ontological sections of the Tractatus and the ethical reflections appearing at the end. It is argued that the latter can best be understood in terms of the idea of a ?last judgment? (with its associated ethical rewards and punishments) which would relate to the world as a whole as a penal trial relates to individual complexes of facts. (shrink)

The paper takes a closer look at the role of knowledge and evidence in legal theory. In particular, the paper examines a puzzle arising from the evidential standard Preponderance of the Evidence and its application in civil procedure. Legal scholars have argued since at least the 1940s that the rule of the Preponderance of the Evidence gives rise to a puzzle concerning the role of statistical evidence in judicial proceedings, sometimes referred to as the Problem of Bare Statistical (...) Evidence. While this puzzle has led to the development of a multitude of accounts and approaches in the legal literature, I argue here that the problem can be resolved fairly straightforwardly within a knowledge-first framework. (shrink)

The article is devoted to the analysis of the ideological component of legal consciousness. Legal ideas give meaning and weight to evaluative criteria in legal norms, develop legal intuition, which is higher than dogmatic knowledge and bureaucratic hookworming. Ideology saturates the legal form with humanistic content. Commitment to ideals does not emasculate the thinking of lawyers to constructions and algorithms. The author sees legal harmony in the combination of ideological maximalism with legal minimalism. Статья посвящена анализу идеологического компонента правосознания. Правовые (...) идеи придают смысл и вес оценочным критериям в юридических нормах, развивают правовую интуицию, которая выше догматического знания и бюрократического крючкотворства. Идеология насыщает юридическую форму гуманистическим содержанием. Приверженность идеалам не выхолащивает мышление юристов до конструкций и алгоритмов. Правовая гармония видится автору в сочетании идейного максимализма с юридическим минимализмом. (shrink)

Many wrongly believe that emotion plays little or no role in legal reasoning. Unfortunately, Langdell and his “scientific” case method encourage this error. A careful review of analysis in the real world, however, belies this common belief. Emotion can be cognitive, and cognition can be emotional. Additionally, modern neuroscience underscores the “co-dependence” of reason and emotion. Thus, even if law were a certain science of appellate cases (which it is not), emotion could not be torn from such “science.” -/- (...) As we reform legal education, we must recognize the role of cognitive emotion in law and legal analysis. If we fail to do this, we shortchange law schools, students, and the bar in grievous ways. We shortchange the very basics of true and best legal analysis. We shortchange at least half the universe of expression (the affective half). We shortchange the importance of watching and guarding the true interests of our clients, which interests are inextricably intertwined with affective experience. We shortchange the importance of motivation in law, life, and legal education. How can lawyers understand the motives of clients and other relevant parties without understanding the emotions that motivate them? How can lawyers hope to persuade judges, other advocates, or parties across the table in a transaction without grasping affective experience that motivates them? How can law professors fully engage students while ignoring affective experience that motivates students? Finally, we shortchange matters of life and death: emotions affect health and thus the very vigor of the bar. -/- Using insights from practice, modern neuroscience, and philosophy, I therefore explore emotion and other affective experience through a lawyer’s lens. In doing this, I reject claims that emotion and other affective experience are mere feeling (though I do not discount the importance of feeling). I also reject claims that emotion and other affective experience are necessarily irrational or beyond our control. Instead, such experience is often intentional and quite rational and controllable. After exploring law and affective experience at more “macro” levels, I consider three more specific examples of the interaction of law and emotion: (i) emotion, expression, and the first amendment, (ii) emotion in legal elements and exceptions, and (iii) emotion and lawyer mental health. To provide lawyers and legal scholars with a “one-source” overview of emotion and the law, I have also included an Appendix addressing a number of particular emotions. -/- Keywords: Emotion, Cognitive Emotion, Reason, Logos, Pathos, Legal Analysis, Legal Reasoning, Neuroscience, Philosophy, Persuasion, Rhetoric, Expression, First Amendment, Free Speech, Common Law Murder, Mental Health, NAACP v. McCrory, Anger, Contempt, Disgust, Hate, Malice. (shrink)

In 1993 the Law Lords upheld the original conviction of five men under the 1861 Offences Against the Person Act for participating in sado-masochistic practices. Although the five men were fully consenting adults, the Law Lords held that consent did not constitute a defence to acts of violence within a sado-masochistic context. This paper examines the judgements in this case and argues that sado-masochistic practices are no different from the known exceptions cited by the court to the idea that consent (...) is no defence to violence (sport, parental chastisement and surgery). It also argues that if we can make sense of rape as a non-consensual, violent act, expressed through sex, then we can make sense of sado-masochism as a consensual sexual act, expressed through violence. (shrink)

“Bodily autonomy” has received significant attention in bioethics, medical ethics, and medical law in terms of the general inviolability of a patient’s bodily sovereignty and the rights of patients to make choices (e.g., reproductive choices) that concern their own body. However, the role of the body in terms of how it can or does contribute to a patient’s capacity for, or exercises of their autonomy in clinical decision-making situations has not been explicitly addressed. The approach to autonomy in this (...) paper is aligned with traditional theories that conceive autonomy in terms of an individual’s capacities for, and exercises of rational reflection. However, at the same time, this paper extends these accounts by arguing that autonomy is, in part, embodied. Specifically, by drawing on phenomenological conceptions of the experience of autonomy, we argue that, in principle, the body is a necessary component of the capacity for autonomy. Secondly, through the presentation of two different cases, we highlight ways in which a patient’s body can contribute to the autonomy of treatment choices. Ultimately, we hope to encourage others to explore additional conditions under which a concept of embodied autonomy should be employed in medical decision making, how its underlying principles might be operationalised in clinical situations, and its consequences for approaches to patient autonomy in healthcare practice, policy, and law. (shrink)

Corporate governance is developing rapidly in many countries across the world. In this article, the existing state of corporate governance in Jordan is examined. Jordan does not have a corporate governance code per se. The article reveals that overall Jordan has in place some of the features of corporate governance best practice, but that there remains further progress to be made in areas such as independence of directors, compensation, and correlation between shareholding and entitlement to seats on the board. The (...) article recommends legal reforms in order to enhance corporate governance in Jordan. (shrink)

Functional intentionality is the dominant theory about how mental states come to have the content that they do. Phenomenal intentionality is an increasingly popular alternative to that orthodoxy, claiming that intentionality cannot be functionalized and that nothing is a mental state with intentional content unless it is phenomenally conscious. There is a consensus among defenders of phenomenal intentionality that the kind of phenomenology that is both necessary and sufficient for having a belief that "there is a tree in the quad" (...) is that the agent be consciously aware of the meaning of "tree" and "quad". On this theory, experiences with a valence -- experiences like happiness and sadness, satisfaction and frustration -- are irrelevant to intentionality. This paper challenges that assumption and considers several versions of "valent phenomenal intentionality" according to which a capacity for valent conscious experiences is either a necessary or a sufficient condition for intentionality (or both). (shrink)

We take it that we can exercise doxastic agency by reasoning and by making judgments. We take it, that is, that we can actively make up our minds by reasoning and judging. On what I call the ‘Standard View’ this is so because judgment can yield belief. It is typical to take it that judgments yield beliefs by causing them. But on the resultant understanding of the Standard View, I argue, it is unclear how judgment could play its role (...) in doxastic agency in the way we take it to. I therefore offer an alternative understanding of how judgment yields belief. Drawing on Ryle I argue that when one comes to believe by judging the event which is one's judging is token identical to the event which is one's coming to believe. This paves the way for version of the Standard View capable of explaining how we can actively make up our minds despite that we cannot believe or come to believe at will. (shrink)

If there is content that we reason on, cognitive content, it is in the head and accessible to reasoning mechanisms. This paper discusses the phenomenal theory of cognitive content, according to which cognitive contents are the contents of phenomenal consciousness. I begin by distinguishing cognitive content from the closely associated notion of narrow content. I then argue, drawing on prior work, that the phenomenal theory can plausibly account for the cognitive contents of many relatively simple mental states. My main focus (...) in this paper is the question whether the phenomenal theory can account for the apparently abstract and complex cognitive contents of "high-level" thoughts. It might seem dubious that the theory can account for such cognitive contents, because cognitive phenomenology is too scarce and too thin. However, I argue there are in fact few abstract or complex cognitive contents, so the phenomenal theory's predictions are correct. This position explains some apparently irrational behavior that is otherwise hard to explain, and it makes sense of the central role of inner speech and other forms of consciousness in reasoning. (shrink)

The transitory and ever-evolving process of law making plays a role of primal importance in the regulation of human conduct of society. It goes without saying that in this entire process, judges have a participation. The power entrusted by law and the nature of judicial process, make judges the prime mover of the development of law. It matters how judges decide cases. It matters most to people unlucky or litigious or wicked or saintly enough to find themselves in court... (...) The effect emanating from the decision of a case affects the life of a person in many ways that at times has far reaching impact...When the law in question happens to be criminal law, it requires a cautious consideration to see how the interpretive tools used by judges affect the life of a litigant in ways both seen and unseen... Several areas concerning adjudication and judicial interpretation have been the subject matter of study. This paper includes a discussion on the principle of non- retrospectivity in light of judicial adjudication in criminal matters. (shrink)

The method of phenomenal contrast (in perception) invokes the phenomenal character of perceptual experience as a means to discover its contents. The method implicitly takes for granted that ‘what it is like’ to have a perceptual experience e is the same as ‘what it is like’ to imagine or recall it; accordingly, in its various proposed implementations, the method treats imaginations and/or recollections as interchangeable with real experiences. The method thus always contrasts a pair of experiences, at least one of (...) which is imagined or remembered rather than occurrent. Surveying all eighteen forms of implementing the method, I argue that in all of the proposed pairings, the substitution of imagination or recollection for perceptual experience in the method, is either inconceivable or impermissible. I identify four reasons why I think imagination cannot be substituted for real experience, and three reasons why recollection cannot be substituted for real experience. If my argument works, there is no form of implementing the method that is useful for discovering the contents of experience, and thus the method is not a well‐functioning tool to study the contents of perception. (shrink)

The concept of Environment is an ethical concept which was discussed by Greek philosophers at ancient time. Plato (347-427 BC) in his book Laws asks everyone who changes the environment to fix it as well. For example, if anyone pollutes the water well, they would also need to try to treat the pollution problem and compensate people for their loss due to the pollution problem. The Environment Ethics is a contemporary branch of philosophy. It has its own concepts that make (...) it different from other branches of human sciences. Furthermore, it focuses on the human-being in any place of the world and looks at the current world as a cooperative world controlled by Environment Responsibility and Unit-determination. Environment Ethics is also used to measure the culture of nations and to what degree they are civilized. To be civilized is not just to earn a high degree in any of the branches of sciences but it means to act in a civil manner and at a high level. To this end, culture plays an important role for these decisions to be implemented. For example, a society with civil citizens means you find a clean environment. This clean environment is an indicator of the cultural level of the particular society. -/- In this paper, I will discuss the aforementioned areas of Environmental Ethics and relationships between environment and society. (shrink)

In this chapter we examine the tendency to view future-oriented mental time travel as a unitary faculty that, despite task-driven surface variation, ultimately reduces to a common phenomenological state. We review evidence that FMTT is neither unitary nor beholden to episodic memory: Rather, it is varied both in its memorial underpinnings and experiential realization. We conclude that the phenomenological diversity characterizing FMTT is dependent not on the type of memory activated during task performance, but on the kind of subjective temporality (...) associated with the memory in play. (shrink)

In this article we examine the role of Entscheider (decision-makers) in the German asylum procedure, both legally and ethical. As the responsibility for deciding on asylum applications lies exclusively with them, their significance for the German asylum procedure can hardly be underestimated. However, over the last few decades the situation of Entscheider changed significantly: While the number and complexity of the cases they have to decide on has increased due to the growing immigration, the requirements for their education have (...) been lowered, owed to critical amendments to the relevant law. We analyze how the law currently defines the role of Entscheider, whether the legal framework is constitutional, and what modifications morality requires. Although the law defining their role seems to be constitutional, Entscheider’s education must be improved and they must be entrusted with the hearing of the applicants to meet what morality requires, we conclude. DOI: 10.17879/95189429199. (shrink)

Kaplan (1989) famously claimed that monsters--operators that shift the context--do not exist in English and "could not be added to it". Several recent theorists have pointed out a range of data that seem to refute Kaplan's claim, but others (most explicitly Stalnaker 2014) have offered a principled argument that monsters are impossible. This paper interprets and resolves the dispute. Contra appearances, this is no dry, technical matter: it cuts to the heart of a deep disagreement about the fundamental structure of (...) a semantic theory. We argue that: (i) the interesting notion of a monster is not an operator that shifts some formal parameter, but rather an operator that shifts parameters that play a certain theoretical role; (ii) one cannot determine whether a given semantic theory allows monsters simply by looking at the formal semantics; (iii) theories which forbid shifting the formal "context" parameter are perfectly compatible with the existence of monsters (in the interesting sense). We explain and defend these claims by contrasting two kinds of semantic theory--Kaplan's (1989) and Lewis's (1980). (shrink)

Comments on Karen Neander's A Mark of the Mental.

The debate over the merits of originalism has advanced considerably in recent years, both in terms of its intellectual sophistication and its practical significance. In the process, some prominent originalists—Lawrence Solum and Jeffrey Goldsworthy being the two discussed here—have been at pains to separate out the linguistic and normative components of the theory. For these authors, while it is true that judges and other legal decision-makers ought to be originalists, it is also true that the communicated content of the constitution (...) is its original meaning. That is to say: the meaning is what it is, not what it should be. Accordingly, there is no sense in which the communicated content of the constitution is determined by reference to moral desiderata; linguistic desiderata do all the work. In this article, I beg to differ. In advancing their arguments for linguistic originalism, both authors rely upon the notion of successful communications conditions. In doing so they implicitly open up the door for moral desiderata to play a role in determining the original communicated content. This undercuts their claim and changes considerably the dialectical role of linguistic originalism in the debate over constitutional interpretation. (shrink)

Abstract: This article shows how in the Pāli Nikāyas, after having defined Eternalism and Nihilism as two opposed positions, Gotama makes a dialectical use of Eternalism as means to eliminate Nihilism, upheld to be the worst point of view because of its denial of kammic maturation in terms of puñña and pāpa. Assuming, from an Eternalist perspective, that actions have effects also beyond the present life, Gotama underlines the necessity of betting on the validity of moral kammic retribution. Having thus (...) demonstrated the central ethical error of Nihilism, he subtly introduces peculiar Buddhist moral concepts (kusala/akusala) to purify the Eternalist vision from the doctrine of a real existing self (attāvāda) and from the puñña/pāpa dichotomy. We can summarize this dialectical course as follows: Nihilism is pāpa/akusala because it denies kamman, Eternalism is puñña/not-akusala because it upholds kamman from a non-Buddhist perspective, Buddhism is kusala because it admits the law of kamman not centred on a theory of a real existing self (anattāvāda). (shrink)

As national and state health care policy -making becomes contentious and complex, there is a need for a forum to debate and explore public concerns and values in health care, give voice to local citizens, to facilitate consensus among various stakeholders, and provide feedback and direction to health care institutions and policy makers. This paper explores the role that regional health care ethics committees can play and provides two contrasting examples of Networks involved in facilitation of public input into (...) and the development of health care policies and adoption of state-wide practices. (shrink)

It’s a popular idea that memory resembles testimony insofar as each can ‘preserve’ epistemic warrant. But how does such ‘preservation’ do its epistemic work? I have elsewhere developed an assurance theory of testimonial warrant. Here, I develop an assurance theory of preservative memory. How could the ‘preservation’ of warrant through memory work through an assurance? What would even count as an intrapersonal assurance? I explain each form of preservation by contrasting the relation that preserves warrant with a pathological alternative. My (...) assurance theory of testimony theorizes the illocutionary norms governing the speech act of telling by explaining what goes wrong when there’s what Austin calls an ‘abuse.’ But what norms govern an intrapersonal memory relation? There are two sides in a memory relation: the earlier self judges that p, then memory keeps the later self in epistemic touch with that judgment by ‘preserving’ its warrant. But this is not an illocutionary relation. (When you ‘tell yourself that p,’ you are trying to ‘convince yourself’ that p and as such typically do not yet even judge that p.) I argue that the earlier self nonetheless offers an assurance by extending an invitation to trust. Your earlier self judges that p in part by projecting a future in which you will continue to trust yourself on the question whether p when you lose access to the evidence that informed the judgment. That projection of trust in yourself posits a worthiness of trust that ought to lead others to accept your testimony that p. Assurance in memory and assurance in testimony thus ought to work together. This aspect of the parallel emerges vividly when we see how it breaks down in the pathology of gaslighting – more than merely illocutionary abuse! – which targets specifically how testimony and memory work together in inviting trust relations. (shrink)

Newton’s impact on Enlightenment natural philosophy has been studied at great length, in its experimental, methodological and ideological ramifications. One aspect that has received fairly little attention is the role Newtonian “analogies” played in the formulation of new conceptual schemes in physiology, medicine, and life science as a whole. So-called ‘medical Newtonians’ like Pitcairne and Keill have been studied; but they were engaged in a more literal project of directly transposing, or seeking to transpose, Newtonian laws into quantitative models (...) of the body. I am interested here in something different: neither the metaphysical reading of Newton, nor direct empirical transpositions, but rather, a more heuristic, empiricist construction of Newtonian analogies. Figures such as Haller, Barthez, and Blumenbach constructed analogies between the method of celestial mechanics and the method of physiology. In celestial mechanics, they held, an unknown entity such as gravity is posited and used to mathematically link sets of determinate physical phenomena (e.g., the phases of the moon and tides). This process allows one to remain agnostic about the ontological status of the unknown entity, as long as the two linked sets of phenomena are represented adequately. Haller et. al. held that the Newtonian physician and physiologist can similarly posit an unknown called ‘life’ and use it to link various other phenomena, from digestion to sensation and the functioning of the glands. These phenomena consequently appear as interconnected, goal-oriented processes which do not exist either in an inanimate mechanism or in a corpse. In keeping with the empiricist roots of the analogy, however, no ontological claims are made about the nature of this vital principle, and no attempts are made to directly causally connect such a principle and observable phenomena. The role of the “Newtonian analogy” thus brings together diverse schools of thought, and cuts across a surprising variety of programs, models and practices in natural philosophy. (shrink)

There are historical events which cannot easily be made sense of by reference to the actions of single individuals. I suggest that one way to understand such events is by building on the involved agents' joint experience, or reports thereof. The phenomenology of joint involvement, so my suggestion, is of use in a particular kind of sense making that combines hermeneutical and explanatory elements. Such sense making, I argue, is narrative in character. I suggest a particular conception of historical narratives (...) that aligns them with what I call, taking up an idea from Ian McEwan's novel Atonement , `psychological realism' — the idea that what renders stories accurate is a reality with both physical and mental characteristics. I end by illustrating my account with a historical example. (shrink)

The recent debate on cognitive phenomenology has largely focused on phenomenal aspects connected to the content of thoughts. By contrasts, aspects pertaining to their attitude have often been neglected, despite the fact that they are distinctive of the mental kind of thought concerned and, moreover, also present in experiences and thus less contentious than purely cognitive aspects. My main goal is to identify two central and closely related aspects of attitude that are phenomenologically salient and shared by thoughts with experiences, (...) namely the rational role that they play in our mental lives and their determination by factors external to them, such as external objects or reasons. In particular, I aim to defend Phenomenal Rationalism about judgemental thoughts and perceptual experiences: the view that their phenomenal character reflects their rational role, that is, their capacity to provide and/or respond to reasons. I conclude with some remarks about how this view may be extended to other kinds of th... (shrink)

The dissertation deals with the questions surrounding the legal, ethical and strategic aspects of armed drones in warfare. This is a vast and complex field, however, one where there remains more conflict and debate than actual consensus. -/- One of the many themes addressed during the course of this research was an examination of the evolution of modern asymmetric transnational armed conflict. It is the opinion of the author that this phenomenon represents a “grey-zone”; an entirely new paradigm of warfare. (...) International terrorism has not been dealt with in a cohesive fashion. Any international prosecution of terrorism which has been conducted has been either “sectoral” adopting a piecemeal typological approach or has been carried out at the domestic level. -/- A novel approach to the problem, of sub-national actors with transnational reach, was proposed, by attributing certain groups with a new legal personality, that of “Stateless International Entities”, or “SIEs”. Those groups who possess, for all intents and purposes, the same attributes as those of States, could then be judged for their behavior before an international tribunal. Other important topics addressed in this research include an examination of important case law, targeted killing, autonomy, preemption versus prevention, imminence versus intent, the find, fix and finish paradigm, the impact of the media, and the role of the CIA, and finally, the flawed reasoning which adopts technology as a form of strategy. (shrink)

This paper concerns an ethics of our medieval tradition (in particular good, happiness, natural law and virtue) and tries to show how to recover it, facing the problems of pluralism, freedom and scientific approach in modern and contemporary age. The author points out: - The central role of the desire for good and happiness and for goods adequate or inadequate to the openness of desire (particularly of the human person). Today we speak of the meaning of life. - The (...) role of ethical virtues as the flowering of the first principles of natural law. - The principle of the entirety of the good (bonum ex integra causa) in order to judge the moral goodness of an action and as a criterion to compare different ethics in a pluralistic world. This is to distinguish between different levels of the human and moral good. - The principles of natural law as a result of the encounter between certain inclinations and practical rationality that recognizes them as normative. Nature and natural law are the conditions of freedom, not primarily a limit to it. - Now we must increase the role of freedom of choice – which is based on rationality – and the virtues as a way to freedom. It is essential to emphasize the value of personal risk and the fact that evil can serve the good. In general the author tries to face the challenges of deontology, utilitarianism and contemporary virtue ethics. -/- . (shrink)

The question of the cognitive role of fictionality is this: what is the correct cognitive attitude to take to p, when it is fictional that p? We began by considering one answer to this question, implicit in the work of Kendall Walton, that the correct response to a fictional proposition is to imagine that proposition. However, this approach is silent in cases of fictional incompleteness, where neither p nor its negation are fictional. We argue that that Waltonians should embrace (...) a pluralistic account of the cognitive role of fictional incompleteness: in some cases of fictional incompleteness, we are permitted to resolve the incompleteness during our engagement with the target fiction, and in other cases, we are obliged not to resolve the incompleteness. But though pluralism is accommodated by Walton’s wider account of fictionality, it puts tension on his motivating idea that fictionality stands to the imagination as truth stands to belief. And so we develop a rival conception of the cognitive role of fictionality that is built around a different analogy: on this evidentialist approach, (known) fictionality stands to the imagination as evidence stands to credence. (shrink)

Plato was the first philosopher who gave an account for the highly controversial claim that both genders are principally equal in respect to their talents and abilities. Consequently, one may advocate the thesis that in Plato’s view, the gender differences are rather the outcomes of social, cultural and political influences, than of natural factors. The aim of this paper is to elucidate the meaning and validity of Plato’s arguments for the gender equality in the Republic, which will be supplemented with (...) some important remarks on this same subject-matter from the Laws, in order to find out what social and political implications they have. In doing this, I will argue against some interpretations of prominent Plato scholars who criticize or reject his account of the social role that women should have in Plato’s ideal city. Additionally, I will discuss the claim, advocated by George Vlastos, that Plato is a feminist in a modern sense of the term. (shrink)