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)

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

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)

Recently, several authors have utilized the notion of dependence to respond to the traditional argument for the incompatibility of freedom and divine foreknowledge. However, proponents of this response have not always been so clear in specifying where the incompatibility argument goes wrong, which has led to some unfounded objections to the response. We remedy this dialectical confusion by clarifying both the dependence response itself and its interaction with the standard incompatibility argument. Once these clarifications are made, it becomes clear both (...) (1.) that the dependence response does not beg the question against the proponent of the incompatibility argument and (2.) that the dependence response advances the dialectic whether it is developed as a version of Ockhamism or as a version of multiple-pasts compatibilism. (shrink)

This article proposes a rigorous method to “map” the law on to the facts in the legal analysis of “sexual consent” using a series of mandatory questions of law designed to eliminate the legal errors often made by decision-makers who routinely rely on personal beliefs about and attitudes towards “normal sexual behavior” in screening and deciding cases. In Canada, sexual consent is affirmative consent, the communication by words or conduct of “voluntary agreement” to a specific sexual activity, with a specific (...) person. As in many jurisdictions, however, the sexual assault laws are often not enforced. Reporting is lowest and non-enforcement highest in cases involving the most common type of assailants, those who are not strangers but instead persons the complainant knows, often quite well -- acquaintances, supervisors or co-workers, and family members. Reliance on popular narratives about “seduction” and “stranger-danger” leads complainants, police, prosecutors, lawyers, and trial judges, to truncate legal analysis of the facts and leap to erroneous conclusions about “consent.” Wrongful convictions and perverse acquittals, questionable plea bargains and ill-considered decisions not to charge, result. This proposal is designed to curtail the impact of pre-judgments, assumptions, and biases in legal reasoning about voluntariness and affirmative agreement and produce decisions that are legally sound, based on the application of the rule of law to the material facts. Law has long had better tools than the age-old and popular tales of “ravishment” and “seduction.” Those tools can and should be used. (shrink)

The Question of Iterated Grounding (QIG) asks what grounds the grounding facts. Although the question received a lot of attention in the past few years, it is usually discussed independently of another important issue: the connection between metaphysical explanation and the relation or relations that supposedly “back” it. I will show that once we get clear on the distinction between metaphysical explanation and the relation(s) backing it, we can distinguish no fewer than four questions lumped under QIG. I (...) will also argue that given some plausible assumptions about what it would take for a relation to back metaphysical explanation, many salient views about grounding allow us to give “easy” answers to these questions—easy in the sense that we can straightforwardly derive them from the respective conception of grounding without getting into the sorts of complexities that typically inform answers to QIG. The paper's main upshot is that we cannot expect to make much progress on QIG without first addressing the difficult issue of how exactly grounding is related to metaphysical explanation. (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)

We can evaluate laws as better or worse relative to different normative standards. One might lament the fact that a law violates human rights or, in a different register, marvel at its ease of application. A question in legal philosophy is whether some standards for evaluating laws are fixed by—or grounded in—the very nature of law. I take Raz’s discussion of the distinctively legal virtues, those that fall under the rubric of the “Rule of Law” such as clarity, generality, (...) and non-retroactivity, as my starting point for exploring a very general puzzle about the relationship between law’s essence and its virtue. -/- The claim that there are some virtues that laws have qua laws invites a comparison between law and other “goodness-fixing kinds.” 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. For example, if an object belongs to the kind CLOCK, whether it keeps time accurately provides a basis for evaluating it as better or worse as a clock. Furthermore, the relevant normative fact—if a clock does not keep time accurately, it is a bad clock—is at least partly explainable in terms of the nature of clocks (clocks are things that are supposed to be keep time accurately). Hence, 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 constitutive standard defined by the Rule-of-Law virtues, these questions lack settled answers. Although Raz 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 goodness-fixing kinds involves revising the general picture. (shrink)

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

We defend a view according to which Austrian economics rests on what can most properly be called an Aristotelian methodology. This implies a realist perspective, according to which the world exists independently of our thinking and reasoning activities; an essentialist perspective, according to which the world contains certain simple essences or natures which may come together in law-like ways to form more complex static and dynamic wholes, and an apriorist perspective, according to which given essences and essential structures are intelligible, (...) in the sense that they ca be grasped non-inductively in our thinking. We show the consequences of this view for an analysis of the thinking of Mises and Hoppe, both of which – we claim – incorporate what we believe to be foreign mixtures of Kantianism in their account of the foundations of Austrian economics. (shrink)

Aboriginal claims for self-government in the Americas and Australasia are distinctive for being less about secession—at least so far—than about demanding an innovative rethinking of the regulative norms and institutions within and between already established nation-states. Recent cases in Australia (and Canada) provide an opportunity to consider the nature of such claims, and some of the theoretical implications for regulative conceptions of sovereignty and the rule of law. A general question informing the entire discussion here is: how do particular (...) conceptions of the rule of law affect Aboriginal claims? Can a distinctive body of Aboriginal law survive in a liberal constitutional state already constituted in part by regulative ideals of the rule of law? (shrink)

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

In “What Makes a Transnational Rule of Law? Understanding the Logos and Values of Human Action in Transnational Law”, Veronica Rodriguez-Blanco explores the possibility—and opportunity—of the existence of a Rule of Law (from now on, RoL) on a transnational level. The aim of this paper is to briefly discuss some points related to various facets of Rodriguez-Blanco’s proposal: the correct question about the RoL and her particular view of human action (section 2); the type of explanation about rules, standards, (...) regulations and principles (section 3); the definitions of RoL, coercion, and freedom (section 4); the parties of the relevant relationship and the notion of transnational law (section 5); and the structure of relevant relationships in national and transnational contexts (section 6). I will try, on the one hand, to show how these points could appear quite problematic and thus seem to undermine the integrity of Rodriguez-Blanco’s proposal, and on the other hand, to offer some suggestions as to how these problems could be solved to strengthen her proposal. With these comments, I will also try to indicate what I think are the most important points that should be considered in any sound discourse or proposal on these subjects. I will then conclude with some final remarks (section 7). (shrink)

Much has been made of Deleuze’s Neo-Leibnizianism,3 however not very much detailed work has been done on the specific nature of Deleuze’s critique of Leibniz that positions his work within the broader framework of Deleuze’s own philo- sophical project. The present chapter undertakes to redress this oversight by providing an account of the reconstruction of Leibniz’s metaphysics that Deleuze undertakes in The Fold. Deleuze provides a systematic account of the structure of Leibniz’s metaphys- ics in terms of its mathematical underpinnings. (...) However, in doing so, Deleuze draws upon not only the mathematics developed by Leibniz – including the law of continuity as reflected in the calculus of infinite series and the infinitesimal calculus – but also the developments in mathematics made by a number of Leibniz’s contemporaries – including Newton’s method of fluxions – and a number of subsequent developments in mathematics, the rudiments of which can be more or less located in Leibniz’s own work – including the theory of functions and singularities, the theory of continuity and Poincaré’s theory of automorphic functions. Deleuze then retrospectively maps these developments back onto the structure of Leibniz’s metaphysics. While the theory of continuity serves to clarify Leibniz’s work, Poincaré’s theory of automorphic functions offers a solution to overcome and extend the limits that Deleuze identifies in Leibniz’s metaphysics. Deleuze brings this elaborate conjunction of material together in order to set up a mathematical idealization of the system that he considers to be implicit in Leibniz’s work. The result is a thoroughly mathematical explication of the structure of Leibniz’s metaphysics. What is provided in this chapter is an exposition of the very mathematical underpinnings of this Deleuzian account of the structure of Leibniz’s metaphysics, which, I maintain, subtends the entire text of The Fold. (shrink)

This paper is in part an introduction to Plato's late political philosophy. In the central sections, I look at Plato's Laws and Statesman and ask the question of how law can produce authentic virtue. If law is merely coercive or habituating, but virtue requires rational understanding, there will be a gap between what law can do and what it is supposed to do. I examine the solution to this difficulty proposed in the Laws, the persuasive preludes attached to the (...) laws, and suggest that they produce an inferior, passive mode of rational order that falls short of full virtue. (shrink)

The experimental turn in philosophy has reached several sub-fields including ethics, epistemology, and metaphysics. This paper is among the first to apply experimental techniques to questions in the philosophy of law. Specifically, we examine Lon Fuller's procedural natural law theory. Fuller famously claimed that legal systems necessarily observe eight principles he called "the inner morality of law." We evaluate Fuller's claim by surveying both ordinary people and legal experts about their intuitions about legal systems. We conclude that, at best, we (...) should be skeptical of Fuller's inner morality of law in light of the experimental data. (shrink)

We subsist under the law where we claim our rights and are obliged to do something enforced. What is a law? The question would be perplexing in history, and one of crucial themes with many lawyers or legal philosophers. As we know, two most important perspectives had earned a universal and historical forge in academics, to say, the natural law and legal positivism. The concept of natural law deals in its primacy for the humanity and natural order which often (...) can be traded as something inviolable or inalienable. The concept has strands in several aspects; (i) its anchor with the civil democratic revolution around 17 and 18 centuries (ii) its supremacy with the new constitutional states (iii) less quality as a realist law from ambiguities and lack of clear definition. The concept of public policy may be related with the social justice, ethics and administration. It generally pursues a justice and desired state of public or community where the tension and conflict always exist between the ruling class and citizens. Historically, the public policy could be mightier to address the society than law where the benevolent Kings or Sovereigns liked to address both their needs and social justice. They may abrogate, more in endowment and divinity, the laws or social customs. The tension between the public power and private interests could be one reason as well as offers a good dualism in understanding the rule of law concept and advent of modern democracy. In this dimension, the King would no longer be divine nor entitled to exercise a plenary power of state rule. Instead, the popular sovereignty in the US democracy or parliamentary type in the UK were to be established to resolve a feudal conflict within the class and society. Lighted to be in vein of influence could arise the two contexts which are a contractarian view and plutocracy desire of the founding fathers. They underlay the mood and philosophical ethos of US revolution. Hence, three concepts as a pillar in private law were sanctified in the very foundation of US constitutional state, sanctity of property right, freedom of contract and due limits for the civil liability. The governmental power should be limited to protect the life and limb of citizens which addressed the Hobbes’ evil, “war against all the rest.” The due process concept was expressed as a fundamental principle of constitution where the human rights are inviolable and inalienable. The separation of powers principle could serve the freedom and wealth of new civil class in the continent, and bicameralism was devised for the check and balance within the federal congress. They see the role of judicial branch is important to preserve their civil interest. Then we can derive some assumptions between the law and public policy. First, a law plays to protect the private interest while the public policy pursues the social justice and mediates the competing interests, “private v. private” and “public v. private.” The civil courts may address a first nature of conflict and the law of takings or regulatory laws may deal with the second aspect. Second, the public or administrative law can shape a legal plane of bureaucracies or public administration, and may guarantee the rule of law ideals. It plays as an enabling authority and, on the other, monitors an arbitrariness and unfairness in the bureaucratic government. In this context, the unresponsive and unfathomable bureaucracy in the Kafka’s could be remedied. Third, for the welfare state in the late 19th and 20th century, a law can well be seen as one of authoritative expression of public policy to redress the evils of capitalist states. Some public laws, such as the Sherman Act classically and Lanham Act recently, may act to regulate the monopoly or oligopoly while other laws were enacted to restore justice between the labor and employers. Through the chapters, the fundamentals of law and public policy will be considered to address their proper status. (shrink)

‘Justice’ is spoken of in two ways: the lawful and the fair. The law is a human construct that is devoted to the advantage of all, or to the advantage of the best, or to the advantage of those in power or to the advantage of those representing it – let it be the politician, the media, the TV presenter, the filmmaker. Thus, the law serves the production or the preservation of happiness within politics and business. The law commands us (...) to act according to the mean. A well-written law follows the mean well and a poorly written law does not. On the other hand, fairness is a principle sometimes materialised through the law and the given justice system. Fairness is the ultimate value pursued by both the common law and civil law traditions. However, its distribution through the law and the representation of this delivery varies. Does this mean that a different kind of justice is distributed? Through the teachings of Aristotle, this essay aims to deconstruct the notion of justice, by breaking down its two ingredients, the lawful and the fair, and by analysing the effect of their representation in modern European society. The relativity attached to the notion of justice is not a modern phenomenon, but a philosophical matter that can be analysed and indeed explained through the teachings of Aristotle and its contemporary students. The analysis will be developed in the context of convergent Europe, focusing on the role of the media and courts especially in relation to criminal justice. (shrink)

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

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

This 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)

Free will skepticism maintains that what we do, and the way we are, is ultimately the result of factors beyond our control and because of this we are never morally responsible for our actions in the basic desert sense—the sense that would make us truly deserving of praise and blame. In recent years, a number of contemporary philosophers have advanced and defended versions of free will skepticism, including Derk Pereboom (2001, 2014), Galen Strawson (2010), Neil Levy (2011), Bruce Waller (2011, (...) 2015), and myself (Caruso 2012, 2013, forthcoming). Critics, however, often complain that adopting such views would have dire consequences for ourselves, society, morality, meaning, and the law. They fear, for instance, that relinquishing belief in free will and basic desert moral responsibility would leave us unable to adequately deal with criminal behavior, increase anti-social conduct, and undermine meaning in life. -/- In response, free will skeptics argue that life without free will and basic desert moral responsibility would not be as destructive as many people believe (see, e.g., Pereboom 2001, 2014; Waller 2011, 2015; Caruso 2016, forthcoming). According to optimistic skeptics, prospects of finding meaning in life or of sustaining good interpersonal relationships, for instance, would not be threatened. And although retributivism and severe punishment, such as the death penalty, would be ruled out, incapacitation and rehabilitation programs would still be justified (see Pereboom 2001, 2013, 2014; Levy 2012; Caruso 2016; Pereboom and Caruso, forthcoming). In this paper, I attempt to extend this general optimism about the practical implications of free will skepticism to the question of creativity. -/- In Section I, I spell out the question of creativity and explain why it’s relevant to the problem of free will. In Section II, I identify three different conceptions of creativity and explain the practical concerns critics have with free will skepticism. In Section III, I distinguish between three different conceptions of moral responsibility and argue that at least two of them are consistent with free will skepticism. I further contend that forward-looking accounts of moral responsibility, which are perfectly consistent with free will skepticism, can justify calling agents to account for immoral behavior as well as providing encouragement for creative activities since these are important for moral and creative formation and development. I conclude in Section IV by arguing that relinquishing belief in free will and basic desert would not mean the death of creativity or our sense of achievement since important and realistic conceptions of both remain in place. (shrink)

Passages in Aristotle’s Politics Book 3 are cited in discussions of the “rule of law”, most particularly sections in 1287a where the famous characterization of law as “mind without desire” occurs and in 1286a where Aristotle raises and explores the question whether it is better to be ruled by the best man or the best laws. My paper aims, by exegetically culling out Aristotle’s position in the Politics, Nicomachean Ethics and Rhetoric, to argue that his view on the rule (...) of law and its relations to human subjects is considerably more complex and considerably more interesting. Despite Aristotle’s dictum, laws are not expressions or institutions of a pure and passionless rationality, and in order to be framed, understood and administered well, one must both have the sort of solid understanding of virtues, vices, passions, and motives of human action that Aristotle’s moral philosophy provides and have developed, at least to some degree, certain virtues. My paper focuses particularly on three themes: the role of the passions and desires in judgment, action, virtues and vices; the inescapability of passions and desires in the functioning of law; the possibility for rule of law and a certain level of virtue to be mutually supporting. (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)

The publication of Guido Calabresi’s book “The Future of Law and Economics” has drawn a substantial amount of attention among law and economics scholars. We thought that the best way to devote special attention to this book was to devote a Special issue to it. This article situates Calabresi’s book among other reflections on the future of the discipline, introduces and explains the reasons behind this Special issue and discuss the organization and content of it. -/- We emphasize how Calabresi’s (...) historical-conceptual standpoint allows him to isolate the stakes of different future developments around the question of how could further appreciation of legal institutions that defy the standard economic assumptions help the field develop theoretically. Overall, the contributors all shared Calabresi’s attempt to restore the balance between Law and Economics and the need to better account for the “whole unanalysed experience of human race”, often neglected by the Economic Analysis of Law approach. Most disagreements are about the ‘how’. In any case, the search for the Law and Economics ‘not (yet) taken’ or for other “Law and … ” approaches is always open to the Future. (shrink)

In an attempt to resolve the problem or the marriage between law and morality, Dr. John Ezenwankwor publishes this book, Law and Morality: An Appraisal of Hart's Concept of Law. In it, he delves into a critical analysis of the works of a British legal philosopher, Herbert Lionel Adolphus Hart (1907-1992), who made landmark contributions to the moral and legal questions surrounding human actions or conducts. Incidentally, he surpasses his master, Hart, in this book, by correcting his mistaken and poor (...) consideration of the influence of morality in holding the society together and his dismissal of legal enforcement of morality. (shrink)

This chapter considers whether legal requirements can constitute reasons for action independently of the merits of the requirement at hand. While jurisprudential opinion on this question is far from uniform, sceptical views are becoming increasingly dominant. Such views typically contend that, while the law can be indicative of pre-existing reasons, or can trigger pre-existing reasons into operation, it cannot constitute new reasons. This chapter offers support to a somewhat less sceptical position, according to which the fact that a legal (...) requirement has been issued can be a reason for action, yet one that is underpinned by bedrock values which law is apt to serve. Notions discussed here include a value-based conception of reasons as facts ; a distinction between complete and incomplete reasons ; and David Enoch’s idea of triggering reason-giving. Following a discussion of criticism against the view adopted here, the chapter concludes by considering some more ‘robust’ conceptions of law’s reason-giving capacity. (shrink)

I emphasize two merits of Eric Watkins’ account in "Kant on Laws": the strong evidential support it has, and the central place it gives to Kant’s laws of mechanics. Then, I raise two questions for further research. 1. What kind of evidential reasoning confirms a Kantian law? 2. Do natures explain Kantian laws? If so, how?

Abstract McDowell's contributions to epistemology and philosophy of mind turn centrally on his defense of the Aristotelian concept of a ?rational animal?. I argue here that a clarification of how McDowell uses this concept can make more explicit his distance from Davidson regarding the nature of the minds of non-rational animals. Close examination of his responses to Davidson and to Dennett shows that McDowell is implicitly committed to avoiding the following ?false trichotomy?: that animals are not bearers of semantic content (...) at all, that they are bearers of content in the same sense we are, and that they are bearer of "as if" content. Avoiding the false trichotomy requires that we understand non-rational animals as having concepts but not as making judgments. Furthermore, we need to supplement McDowell's distinction between the logical spaces of reasons and of the realm of law with what Finkelstein calls ?the logical space of animate life?. Though McDowell has taken some recent steps to embrace a view like this, I urge a more demanding conception than what McDowell has thus far suggested. (shrink)

This article outlines a new approach to the law of political economy as a form of transformative law, a new approach that combines a focus on the function of law with a concept of law encapsulating the triangular dialectics between the form-giving prestation of law, the material substance the law is oriented against, and the transcendence of legal forms—that is, the rendering of compatibility between forms. Transformative law thereby serves as an alternative to both law and economics and recently emerging (...) culturalist and neo-Marxist approaches. The timing of this publication is not coincidental. The era of neoliberalism—that is, of structural liberalism, which started in the 1970s and experienced its breakthrough in the 1980s and 1990s after the collapse of structural Marxism—is ending. This makes the question of what will succeed the neoliberal episteme pertinent. (shrink)

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

This paper deals with Veronica Rodriguez-Blanco’s answer to the paradox of the normativity of law: How can autonomous self-legislating persons act, without compromising their autonomy and their will, following legal rules? Regarding Rodriguez-Blanco’s answer, I offer two main critiques. The first one is based on Rodriguez-Blanco’s comments to David Enoch’s paper in which I argue against the idea that a descriptive theoretical account of law can, and should, give an answer to general problems of normativity due to the fact that (...) a theoretical approach that engages in questions about the normativity of law cannot be purely descriptive, therefore against Rodriguez-Blanco I conclude that Enoch’s answer is the only response a descriptive account is able to offer. The second criticism focuses on Rodriguez-Blanco’s response to the paradox and argues that her solution is not, in fact, a descriptive one, but one that relies on strong normative premises, which as it turns out defend a perfectionist perspective towards the law.Resumen:Este trabajo analiza la respuesta que Veronica Rodriguez-Blanco propone para resolver la paradoja de la normatividad del derecho: ¿Cómo es posible que una persona autónoma actúe siguiendo los mandatos de normas jurídicas sin comprometer su autonomía ni su voluntad? El autor ofrece dos críticas a la respuesta de Rodriguez-Blanco. La primera de ellas está basada en los comentarios que Rodriguez-Blanco ha hecho sobre la propuesta de David Enoch. En este punto, el autor argumenta en contra de la idea según la cual una perspectiva descriptiva del derecho puede, y debe, tratar de responder a los problemas generales de la normatividad del derecho. De acuerdo con el autor, una perspectiva que pretenda dar respuesta a los problemas de la normatividad del derecho no puede ser una perspectiva puramente descriptiva. En este sentido, el autor sostiene que la respuesta que ofrece Enoch es la única respuesta que una perspectiva descriptiva del derecho puede dar. La segunda crítica está dirigida a la respuesta que Rodriguez-Blanco da sobre la paradoja de la normatividad. En este segundo punto el autor argumenta que la perspectiva de Rodriguez-Blanco no es una perspectiva descriptiva como ella presume, sino que adopta una perspectiva normativa la cual, además, está comprometida con una idea perfeccionista del derecho. (shrink)

This essay is titled "Critique the Postulation of the Historical Law Theory and relate it to African Law. The postulation of the historical law school that law emanates from customs through an ordered pattern of systematized progress into a codified system in relation to African law forms the crust of this essay. To achieve this task, this essay adopts a critical method in exposing c postulation of the historical law school and the African Law (keeping in mind the Ukelle communal (...) Law System). This essay questions whether there can be an independent law made or promulgated without targeting a given people or that there can be a people-free law? This essay claims that like the historical law school, laws emanate from their ground norms but insists that unlike the historical law school, laws in Ukelle Traditional System do not necessarily have to submit to through the rigor of systematic and strict evolutionary pattern of progress. Like Herder, this essay avers that there is a unique character with each culture, and as such Ukelle Traditional Law does not have to submit to any universal character of law. (shrink)

What does it mean to act politically? This paper contributes an answer to this question by looking at the role that necessity plays in the political theory of Carl Schmitt. It argues that necessity, whether in the form of existential danger or absolute values, does not affect the sovereign decision, which must be free from normative determinations if it is to be a decision in Schmitt’s sense at all. The paper then provides a reading of Schmitt in line with (...) Weber’s ethics of responsibility, according to which the political actor decides not arbitrarily and irresponsibly, but actively assumes responsibility for the decisions he takes. (shrink)

There is an old and powerful argument for the claim that divine foreknowledge is incompatible with the freedom to do otherwise. A recent response to this argument, sometimes called the “dependence response,” centers around the claim that God’s relevant past beliefs depend on the relevant agent’s current or future behavior in a certain way. This paper offers a new argument for the dependence response, one that revolves around different cases of time travel. Somewhat serendipitously, the argument also paves the way (...) for a new reply to a compelling objection to the dependence response, the challenge from prepunishment. But perhaps not so serendipitously, the argument also renders the dependence response incompatible with certain views of providence. (shrink)

In ‘What Has Philosophy to Learn from Tort Law?’, Bernard Williams reaffirms J. L. Austin’s suggestion that philosophy might learn from tort law ‘the difference between practical reality and philosophical frivolity’. Yet while Austin regarded tort law as just another repository of time-tested concepts, on a par with common sense as represented by a dictionary, Williams argues that ‘the use of certain ideas in the law does more to show that those ideas have strength than is done by the mere (...) fact that they are part of the currency of common sense’. But what does it mean to show that ideas or concepts ‘have strength’? How does conceptual strength relate to the distinction between practical reality and philosophical frivolity? And what special features of the law are supposed to make it a better test of conceptual strength than common sense? In this chapter, I reconstruct and develop Williams’s answers to these questions. I show why Williams believes that we need to test the concepts forming the currency of common sense against practical reality as embodied by legal practice; I identify seven features of tort law that make it particularly suitable to act as such a test; I distinguish three respects in which concepts can show strength, and unpack Williams’s metaphor of microwave-resistant concepts: concepts capable of holding and presenting material for intense critical scrutiny without succumbing to it themselves; lastly, I show how philosophy can learn to identify systematically weak concepts, and the limits of otherwise valuable concepts, by considering which concepts fail the test. (shrink)

Sample chapter from H. Asgeirsson, The Nature and Value of Vagueness in the Law (Hart Publishing, 2020), in which I present and partially defend a version of what has come to be called the communicative-content theory of law. Book abstract: Lawmaking is – paradigmatically – a type of speech act: people make law by saying things. It is natural to think, therefore, that the content of the law is determined by what lawmakers communicate. However, what they communicate is sometimes vague (...) and, even when it is clear, the content itself is sometimes vague. The monograph examines the nature and consequences of these two linguistic sources of indeterminacy in the law with the aim of providing plausible answers to three related questions: In virtue of what is the law vague? What might be good about vague law? How should courts resolve cases of vagueness? (shrink)

In this paper, I distinguish four ways to ask the question whether morality must be grounded in God. One asks whether or not God is the ultimate source for moral goodness, values, or standards. A second way asks whether a minimal morality, purified of any explicit reference to God, could not be worked out on bases of common human experience and rational reflection. A third way asks whether some kind of divine revelation is required for morality to be adequately (...) understood or worked out. A fourth way asks whether a person requires practical engagement with God in adequately live out a sufficiently moral life. I then examine Anselm of Canterbury's responses to each of these questions. -/- The first part examines the issue of God as the origin of moral value and standards. The second part shift to a vantage point taking Anselm’s God out of the picture, in order to outline a morality based upon the exercise of a natural human practical rationality. The third and fourth part address what Anselm would see as shortcomings of such an approach to morality. The third part focuses on guidance and assistance Anselm thinks Christianity provides to human reason in developing a more adequate morality. The fourth part looks at the indispensable role Anselm accords to God and to Christianity, understood not only as belief or practice, but as community and experience. (shrink)

Contents 1 Introduction / 2 The Timaeus on dignity: the Demiurge’s speech / 3 Justice as a virtue / 4 The content of just actions / 5 Justice of the law and justice of the state / 6 Equality / 7 Some key issues in Plato’s conception of justice / 7.1 What is more excellent—justice of the soul or justice of action? / 7.2 Which activity is best and what is its best object? / 7.2. Just actions over contemplation / (...) 7.2. The Timaeus and Plato’s teaching on justice / 7.2. The elderly Cephalus on justice: foreword as epilogue / 7.3 The sharing of wives: testing the interpretation on a ‘hard case’ / 8 Conclusions. (shrink)

In the period of emergence of early modern science, ‘monsters’ or individuals with physical congenital anomalies were considered as rare events which required special explanations entailing assumptions about the laws of nature. This concern with monsters was shared by representatives of the new science and Late Scholastic authors of university textbooks. This paper will reconstruct the main theses of the treatment of monsters in Late Scholastic textbooks, by focusing on the question as to how their accounts conceived nature’s regularity (...) and teleology. It shows that they developed a naturalistic teratology in which, in contrast to the naturalistic explanations usually offered by the new science, finality was at central stage. This general point does not impede our noticing that some authors were closer to the views emerging in the Scientific Revolution insofar as they conceived nature as relatively autonomous from God and gave a relevant place to efficient secondary causation. In this connection, this paper suggests that the concept of the laws of nature developed by the new science –as exception-less regularities—transferred to nature’s regularity the ‘strong’ character that Late Scholasticism attributed to finality and that the decline of the Late Scholastic view of finality played as an important concomitant factor permitting the transformation of the concept of laws of nature. (shrink)

The question of whether the Pyrrhonist adheres to certain logical principles, criteria of justification, and inference rules is of central importance for the study of Pyrrhonism. Its significance lies in that, whereas the Pyrrhonist describes his philosophical stance and argues against the Dogmatists by means of what may be considered a rational discourse, adherence to any such principles, criteria, and rules does not seem compatible with the radical character of his skepticism. Hence, if the Pyrrhonist does endorse them, one (...) must conclude that he is inconsistent in his outlook. Despite its import, the question under consideration has not received, in the vast literature on Pyrrhonism of the past three decades, all the attention it deserves. In the present paper, I do not propose to provide a full examination of the Pyrrhonist’s attitude towards rationality, but to focus on the question of whether he endorses the law of non-contradiction (LNC). However, I will also briefly tackle the question of the Pyrrhonist’s outlook on both the canons of rational justification at work in the so-called Five Modes of Agrippa and the logical rules of inference. In addition, given that the LNC is deemed a fundamental principle of rationality, determining the Pyrrhonist’s attitude towards it will allow us to understand his general attitude towards rationality. (shrink)

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

This chapter provides a general overview and introduction to the law and ethics of virtual sexual assault. It offers a definition of the phenomenon and argues that there are six interesting types. It then asks and answers three questions: (i) should we criminalise virtual sexual assault? (ii) can you be held responsible for virtual sexual assault? and (iii) are there issues with 'consent' to virtual sexual activity that might make it difficult to prosecute or punish virtual sexual assault?

Throughout its history the European integration process has not undermined but rather strengthened the autonomy of Member States vis-à-vis wider societal interests in relation to political economy, labour markets and social provisions. Both the ‘golden age nation state’ of the 1960s as well as the considerable transformations of Member State political economies over the past decades, and especially after the euro-crisis, was to a considerable degree orchestrated through transnational, most notably European, arrangements. In both cases the primary objective has been (...) to strengthened state capacities of public power and law against the encroachment of private interests into the state. In spite of this continuity considerable changes can however be observed in the substantial economic policies advanced due to the switch from a Keynesian to a monetarist economic paradigm. It is suggested that the debate on constitutional imbalances between the EU’s economic and social constitutions should be seen in this light. (shrink)

Libertarian views of freedom claim that, although determinism would rule out our freedom, we are nevertheless free on some occasions. An odd implication of such views (to put it mildly) seems to be that indeterminism somehow enhances or contributes to our agency. But how could that be? What does indeterminism have to offer agency? This paper develops a novel answer, one that is centred around the notion of explanation. In short, it is argued that, if indeterminism holds in the right (...) places, then the best explanation of the history of the world necessarily cites facts about our agency. Along the way, alternative proposals regarding the significance of indeterminism are considered and, ultimately, rejected in favour of the one developed in this paper. (shrink)

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

Constitutional democracies unilaterally enact the laws that regulate immigration to their territories. When are would-be migrants to a constitutional democracy morally justified in breaching such laws? Receiving states also typically enact laws that require their existing citizens to participate in the implementation of immigration restrictions. When are the individual citizens of a constitutional democracy morally justified in breaching such laws? In this article, I take up these questions concerning the justifiability of noncompliance with immigration law, focusing on the case of (...) nonviolent – or mere – noncompliance. Dissenting from Javier Hidalgo’s view, I argue that the injustice of an immigration law is insufficient to make mere noncompliance justified. Instead, I contend that only if an immigration law lacks legitimate authority are individuals justified in breaching it, since the subjects of an institution with legitimate authority are under a content-independent moral duty to comply with its rules. I further argue that a constitutional democracy’s regimes of law regulating immigration and requiring its citizens’ participation in implementing these regulations have legitimate authority. Nevertheless, when a particular immigration law is egregiously unjust, its legitimacy is defeated. (shrink)

Thomas Hobbes wrote in his Leviathan that money exchanging hands, monetary policies, activities, and transactions are the blood of the “Leviathan” - the eponymous subject of the book. Hobbes writes that this Leviathan's “blood” includes the “collectors, receivers, and treasurers; of the second are the treasurers again, and the officers appointed for payment of several public or private ministers.” Hobbes, follows this with an analogy of a living man, stating that this “artificial man maintains his resemblance with the natural [man]; (...) whose veins, receiving the blood from the several parts of the body, carry it to the heart; where, being made vital, the heart by the arteries sends it out again, to enliven and enable for motion all the members of the same.” Hobbes maintains a parallel between the natural man and what he calls the “artificial man”, the state throughout his Leviathan. -/- Ultimately, the mechanisms of finance in the United States are the accumulation of historical precedents - both legal and non-legal (such as economic, but also social). These precedents have led to the current system, on a continuing and settled basis. The legal and economic systems merging for the best system of an international monetary order can represent a balance of legal realism and legal formalism. -/- “Money” is printed by the U.S. government, designated as an official note. Value is correlated with how many of those printed pieces of paper exist. This is the basic concept of inflation. This concept of value and inflation is said to be connected to a commodity - such as how much gold or silver existed in the Federal Reserve's physical locations or Fort Knox. Such systems have been in place since at least Mesopotamia, where clay tablets were used to represent credit, or comparable contracts that seem to resemble modern forms of fiat currency. (shrink)

Abstract: This paper traces a Kantian and pragmatist line of thinking that connects the ideas of conceptual content, object cognition, and modal constraints in the form of counterfactual sustaining causal laws. It is an idea that extends from Kant’s Critique of Pure Reason through C. I. Lewis’s Mind and the World-Order to the Kantian naturalism of Wilfrid Sellars and the analytic pragmatism of Robert Brandom. Kant put forward what I characterize as a modal conception of objectivity, which he developed as (...) an extended argument stretching from the transcendental deduction through the analogies of experience to the regulative maxims of reason and reflective judgment. In related ways in Lewis and Sellars, the very idea of an object of knowledge (and of intentionality more generally) is connected with a certain lawfulness or modal constraint the necessary representation of which, they argue, is an achievement of conceptualization. While Sellars agreed with the spirit of Lewis’s famous pragmatic conception of the a priori, Sellars’s conception of meaning and conceptual content differed in crucial ways with important consequences for this issue. I argue furthermore that a certain phenomenalist temptation threatens to spoil this insight both among some of Kant’s interpreters and in Lewis’s thought. Finally, I point out that Brandom’s “Kant-Sellars thesis” provides new support for this line of thought. Although questions concerning idealism continue to raise controversies for neo-Kantians and pragmatists, the line of thought itself represents a distinctive and still promising approach to questions concerning intentionality and conceptual content. (shrink)

Two approaches to elevating certain laws of nature over others have come to prominence recently. On the one hand, according to the meta-laws approach, there are meta-laws, laws which relate to laws as those laws relate to particular facts. On the other hand, according to the modal, or non-absolutist, approach, some laws are necessary in a stricter sense than others. Both approaches play an important role in current research, questioning the ‘orthodoxy’ represented by the leading philosophical theories of natural laws—Humeanism, (...) the DTA view, dispositional essentialism and primitivism. This paper clarifies the relations between these two emerging approaches, as well as their applicability to physical laws and the status of the challenges they pose for standard theories of laws of nature. We first argue that, despite some significant similarities between the two approaches (especially in the context of Lange’s counterfactual account of laws), they are in general distinct and largely independent of each other. Then, we argue that the support for meta-laws from physical theory and practice is more questionable than usually presented. (shrink)