Institutional theory of law (ITL) reflects both continuity and change of Kelsen's legal positivism. The main alteration results from the way ITL extends Hart's linguistic turn towards ordinary language philosophy (OLP). Hart holds –like Kelsen – that law cannot be reduced to brute fact nor morality, but because of its attempt to reconstruct social practices his theory is more inclusive. By introducing the notion of law as an extra-linguistic institution ITL takes a next step in legal positivism and (...) accounts for the relationship between action and validity within the legal system. There are, however, some problems yet unresolved by ITL. One of them is its theory of meaning. An other is the way it accounts for change and development. Answers may be based on the pragmatic philosophy of Charles Sanders Peirce, who emphasises the intrinsic relation between the meaning of speech acts and the process of habit formation. (shrink)

This festschrift collects a number of insightful essays by a group of accomplished Christian scholars, all of who have either worked with or studied under Hendrik Hart during his 35-year tenure as Senior Member in Systematic Philosophy at the Institute for Christian Studies, Toronto, Canada.

Transoral laser microsurgery applies to the piecemeal removal of malignant tumours of the upper aerodigestive tract using the CO2 laser under the operating microscope. This method of surgery is being increasingly popularised as a single modality treatment of choice in early laryngeal cancers (T1 and T2) and occasionally in the more advanced forms of the disease (T3 and T4), predomi- nantly within the supraglottis. Thomas Kuhn, the American physicist turned philosopher and historian of science, coined the phrase ‘paradigm shift’ in (...) his groundbreaking book The Structure of Scientific Revolutions. He argued that the arrival of the new and often incompatible idea forms the core of a new paradigm, the birth of an entirely new way of thinking. This article discusses whether Steiner and col- leagues truly brought about a paradigm shift in oncological surgery. By rejecting the principle of en block resection and by replacing it with the belief that not only is it oncologically safe to cut through the substance of the tumour but in doing so one can actually achieve better results, Steiner was able to truly revolutionise the man- agement of laryngeal cancer. Even though within this article the repercussions of his insight are limited to the upper aerodigestive tract oncological surgery, his willingness to question other peoples’ dogma makes his contribution truly a genuine paradigm shift. (shrink)

This paper builds on London and Hart’s critique that Prahalad’s best-selling book prompted a unilateral effort to find a fortune at the bottom of the pyramid. Prahalad’s instrumental, firm-centered construction suggests, perhaps unintentionally, a buccaneering style of business enterprise devoted to capturing markets rather than enabling new socially entrepreneurial ventures for those otherwise trapped in conditions of extreme poverty. London and Hart reframe Prahalad’s insight into direct global business enterprise toward “creating a fortune with the base of the (...) pyramid” rather than at the BoP. This shift in language requires a recalibration of strategic focus, we argue, and will necessitate implementation of “moral imagination” to formulate new mental models that can frame the possibility of local entrepreneurs working collaboratively and discursively with development partners drawn from civil society, corporate, and government sectors. Successful partnerships will arise from interactive processes of emergent, co-creative learning within a shared problem domain or “community of practice”. We call attention to three related pluralist framings of situated learning within such communities of practice: decentered stakeholder networks; global action networks; and a focus on “faces and places” as a cognitive lens to humanize and locally situate diverse inhabitants within base of the pyramid partnership projects. (shrink)

Peter Abelard (1079–1142 ce) was the most wide‐ranging philosopher of the twelfth century. He quickly established himself as a leading teacher of logic in and near Paris shortly after 1100. After his affair with Heloise, and his subsequent castration, Abelard became a monk, but he returned to teaching in the Paris schools until 1140, when his work was condemned by a Church Council at Sens. His logical writings were based around discussion of the “Old Logic”: Porphyry's Isagoge, aristotle'S Categories and (...) On Interpretation and boethius'S textbook on topical inference. They comprise a freestanding Dialectica (“Logic”; probably c.1116), a set of commentaries (known as the Logica [Ingredientibus], c. 1119) and a later (c. 1125) commentary on the Isagoge (Logica Nostrorum Petititoni Sociorum or Glossulae). In a work Abelard called his Theologia, issued in three main versions (between 1120 and c.1134), he attempted a logical analysis of trinitarian relations and explored the philosophical problems surrounding God's claims to omnipotence and omniscience. The Collationes (“Debates,” also known as “Dialogue between a Christian, a Philosopher and a Jew”; probably c.1130) present a rational investigation into the nature of the highest good, in which the Christian and the Philosopher (who seems to be modeled on a philosopher of pagan antiquity) are remarkably in agreement. The unfinished Scito teipsum (“Know thyself,” also known as the “Ethics”; c.1138) analyses moral action. (shrink)

Since its development in the middle of the 20th century, H.L.A. Hart’s oeuvre has become a beacon for the jurisprudential community. Hart turned out to be a giant on whose shoulders many have stood. Yet the significance in its own right of Hart’s work has been neglected in recent years because his work has too often been discussed in the context of the Hart-Dworkin-debate. Hopefully, Nicola Lacey’s recent biography of Hart,which is discussed in this review-article, (...) will contribute to redress this omission. Three aspects of the biography are discussed here: 1) Hart’s life; 2) the relation between his life and work; 3) his academic work. (shrink)

Law, Morality and Society Essays in Honour of H.L.A Hart.

En este trabajo se ofrece un bosquejo biográfico de H. L. A. Hart así como una reconstrucción del contexto cultural y filosófico en el que forjó su pensamiento. En la primera parte se proporcionan los datos más relevantes de su biografía, entre los que destaca su participación en los servicios de inteligencia durante la Segunda Guerra Mundial. Posteriormente, el trabajo incursiona en el panorama filosófico británico de principios del siglo XX, durante la llamada revuelta anti-idealista, que es donde se (...) ubican los orígenes de la moderna filosofía analítica. Es allí donde encontramos los antecedentes del método filosófico de Hart; concretamente, en la corriente de la filosofía del lenguaje ordinario encabezada por J. L. Austin. El autor concluye con una serie de testimonios del propio Hart donde se evidencia lo anterior y plantea algunos temas para futuras investigaciones. (shrink)

The concept of scientific history / Isaiah Berlin -- The limits of scientific history / W.H. Walsh -- The objectivity of history / J.A. Passmore -- Explanation in science and in history / C.G. Hempel -- The Popper-Hempel theory reconsidered / Alan Donagan -- The autonomy of historical understanding / Louis O. Mink -- Historical continuity and causal analysis / Michael Oakeshott -- Causal judgment in history and in the law / H.L.A. Hart and A.M. Honoré -- Causes, connections (...) and conditions in history / Michael Scriven -- The historical individual / A.C. Danto -- Methodological individualisms : definition and reduction / May Brodbeck -- Societal laws / Maurice Mandelbaum -- Determinism in history / Ernest Nagel. (shrink)

This work presents, interprets, and largely defends the legal philosophy of H.L.A. Hart, except for his account of causation. Hart is considered by many persons to be the most important English writer on jurisprudence in the 20th century. The book considers his general theory of law, his theory of rights and of the enforcement of morality, and his analysis of the conditions of legal resposibility and the justification of punishment.

Is 'n transendentale kritiek religieus bepaald? deur V. Brümmer. -- Constitution and creativity in the philosophy of Edmund Husserl, by A. L. Conradie. -- Studium Generale, deur H. J. De Vleeschauwer. -- Sociology of law and its philosophical foundtions, by H. Dooyeweerd. -- Beginvrae en antwoorde in der Wysbegeerte, deur P. G. W. Du Plesis. -- Max Scheler's concern with the highest perfection, by S. I. M. Du Plessis. -- Christelike wetenskap, highest perfection, by S. I. M. Deu Plessis. -- (...) Christelike wetenskap, deur B. Duvenage. -- Malan's critical study, by H. Hart. -- Raakpunte vir 'n dialoog met 'n Christelike Wysbegeerte, deur A. M. T. Meyer. -- Nuwe gedagtes oor die begrip Natuurwet, deur A. H. Murray. -- Die voorwaardes vir die uitbou van 'n wysgerige antropologie, deur C. K. Oberholzer. -- De structuur van feit-en-betekenis, deur K. J. Popma. -- The relation of the arts to the presentation of the truth, by C. G. Seerveld. -- Gezag en vrijheid in het licht van Gods Woord, deur J. Stellingwerff. -- Voorveronderstellings vir 'n filosogie van die opvoeding, deur J. A. L. Taljaard. -- Objektiwiteit, sekularisasie en geskiedenis, deur N. T. Van der Merwe. -- Etiek: wetenskap van relasies, deur S. P. Van der Walt. -- Wetten en feiten, deur C. A. Van Peursen. -- Enige opmerkingen over entiteiten, deur H. Van Riessen. -- Richard Kroner on Herman Dooyeweerd, by C. Van Til. -- De mens in de taalkunde, deur P. A. Verburg, -- Enkele motieven van het anti-militair pacifisme, deur S, U. Zuidema. -- Publications of prof. dr. H. G. Stoker. Publikasies van prof. dr. H. G. Stoker (p. 303-311). (shrink)

RESUMEN: Este trabajo tiene como finalidad destacar la contribución específica de H.L.A. Hart sobre el problema del positivismo jurídico. A juicio del autor, el tratamiento que Hart dio a la polémica entre positivismo jurídico y Derecho Natural estuvo marcada por dos extremos aparentemente contradictorios. Por una parte, se abocó a clarificar las diversas tesis que anidan tras la etiqueta “positivismo jurídico”, así como las posiciones que suelen referirse como tales. Al hacerlo abrió el camino para mostrar en qué (...) sentido no resulta ilógico defender algunas tesis asociadas al mismo o negar otras. Por otra parte, y si bien no asumió una posición que afirmase la conexión necesaria entre Derecho y moral, se ocupó también de mostrar en qué sentido tal conexión existe y es importante. Con dicho objetivo, en el primer apartado se ofrece una reconstrucción detallada sobre el tratamiento que Hart hizo sobre el problema del positivismo jurídico. En el segundo se expone el tratamiento del autor sobre el iusnaturalismo, con la intención de comprender el lugar preciso e implicaciones de su conocida tesis del “contenido mínimo Derecho Natural”. En la tercera parte se aborda la teoría elaborada por Hart sobre el positivismo jurídico, esto es, el “positivismo jurídico hartiano” y las tesis por él defendidas. Importante aquí será su posición respecto a la posibilidad de que la regla de reconocimiento pueda incorporar criterios materiales para la identificación jurídica que nos introduce en una nueva etapa de la nunca acabada polémica. ABSTRACT: The aim of this work is to address H.L.A. Hart’s contribution to the problem of legal positivism. According to the author, Hart’s approach to the controversy of Natural Law/Legal Positivism was characterized by two apparently opposing ends. On the one hand, he clarified the label “Legal Positivism” as well as other approaches that are usually referred as such. In doing so, he paved the way to show in which sense it is not illogical to defend some theses associated with it and in which sense it is not. On the other hand, despite he did not take a stand for the necessary connection between Law and Morals, he did show in what sense such connection may exist and why it is important. To this end, section one offers a detailed reconstruction of Hart’s approach to the problem of legal positivism. In section two the author’s approach to Natural Law is explained so that his well-known thesis of “The Minimum Content of Natural Law”, and what it implies, is properly understood. Section three is devoted to Hart’s theory of Legal Positivism that is “Hartian Legal Positivism”, where his main claims are presented. Hart’s claim on the possibility for the rule of recognition to incorporate material criteria for legal identification or legal validity is particular relevant because it introduces us to a new stage of the never-ending controversy. PALABRAS CLAVE: H.L.A. Hart, positivismo jurídico, teorías de derecho natural, positivismo jurídico incluyenteKEYWORDS: H.L.A. Hart, legal positivism, natural law theories, inclusive legal positivism. (shrink)

This unique volume will appeal to those interested in the philosophy of mind, cognitive science, and artificial intelligence as well as students of Castaneda and Latin American philosophy.

The most influential theory of law in current analytic legal philosophy is legal positivism, which generally understands law to be a kind of institution. The most influential theory of institutions in current analytic social philosophy is that of John Searle. One would hope that the two theories are compatible, and in many ways they certainly are. But one incompatibility that still needs ironing out involves the relation of the social rule that undergirds the validity of any legal system (H.L.A. (...) class='Hi'>Hart's rule of recognition) to Searle's notion of codification: the idea that institutions need official declarations of their constitutive rules in order to enjoy the full benefits of institutions. The incompatibility arises from the fact that, in order to do its institutional work, the basic validity rule must be codified in Searle's sense—yet, given the particular role it has in legal positivism, it may be impossible to codify in the Searlean sense. In this paper I develop the incompatibility in detail, consider and reject consigning the basic validity rule to Searle's “Background” capacities that support institutional facts, and conclude that the best route to eliminating it while doing a minimum of damage to the two theories is to make a slight emendation to Searle's theory of institutions. (shrink)

It is extraordinary, when one thinks about it, how little attention has been paid by theorists of the nature and justification of punishment to the idea that punishment is essentially a matter of self-defense. H. L. A. Hart, for example, in his famous “Prolegomenon to the Principles of Punishment,” is clearly committed to the view that, at bottom, there are just three directions in which a plausible theory of punishment can go: we can try to justify punishment on purely (...) consequentialist grounds, which for Hart, I think, would be to try to construct a purely utilitarian justification of punishment; we can try to justify punishment on purely retributive grounds; or we can try to justify punishment on grounds that are some sort of shrewd combination of consequentialist and retributive considerations. Entirely absent from Hart's discussion is any consideration of the possibility that punishment might be neither a matter of maximizing the good, nor of exacting retribution for a wrongful act, nor of some imaginative combination of these things, but, rather, of something altogether different from either of them: namely, the exercise of a fundamental right of self-protection. Similarly, but much more recently, R. A. Duff, despite the fact that he himself introduces and defends an extremely interesting fourth possibility, begins his discussion by writing as though, apart from his contribution, there are available to us essentially just the options previously sketched by Hart. Again, there is no mention here, any more than in Hart's or any number of other recent discussions, of the possibility that we might be able to justify the institution of punishment on grounds that are indeed forward-looking, to use Hart's famous term, but that are not at all consequentialist in any ordinary sense of the word. (shrink)

I examine the impact of the presence of anarchists among key legal officials upon the legal positivist theories of H.L.A. Hart and Joseph Raz. For purposes of this paper, an anarchist is one who believes that the law cannot successfully obligate or create reasons for action beyond prudential reasons, such as avoiding sanction. I show that both versions of positivism require key legal officials to endorse the law in some way, and that if a legal system can continue to (...) exist and function when its key officials reject the reason-giving character of law, then we have a reason to re-examine and amend legal positivism. (shrink)

In a recent comment on H.L.A. Hart’s ‘Postscript’ to The Concept of Law, Ronald Dworkin claims that the meaning of legal and political concepts may be understood by analogy to the meaning of natural kind concepts like ‘tiger’, ‘gold’ and ‘water’. This article questions the efficacy of Dworkin’s claims by challenging the use of natural kinds as the basis for a semantic theory of legal and political concepts. Additionally, in matters of value there is no methodological equivalent to the (...) scientific method. Thus, there is little hope of finding hidden essences to explain the meaning of legal and political concepts. Finally, even if there are natural kinds, Dworkin’s arguments for their efficacy in jurisprudence are problematic and unpersuasive. The problem for Dworkin is that his embrace of natural kinds undermines the ‘fit’ side of the fit/justification model of adjudication that lies at the heart of his theory of law. (shrink)

Although a number of anthologies on the philosophy of punishment have been published in recent years, the inclusion of a number of important but rarely reprinted articles makes this volume a valuable addition to the field. Included are such historically important figures as Plato, Thomas Hobbes, and St. Thomas Aquinas; such rarely included figures as G. B. Shaw, Samuel Butler and Karl Marx; the important but ignored Mill-Gilpin controversy on capital punishment; and the hitherto nearly inaccessible paper by Richard Wasserstrom, (...) "Why Punish the Guilty?" Along with these fresh selections are numerous influential, widely-reprinted classical and contemporary essays. The selections are grouped into five sections, the largest of which, constituting nearly half the text, deals with the justification of punishment. The various justificatory theories are classified as teleological, retributivist, and teleological retributivist. The latter theory, not clearly defined by the editor, is represented by W. D. Ross, H. L. A. Hart, J. D. Mabbott, and K. G. Armstrong, who relate the teleological and retributivist elements in their theories in quite different ways. A section entitled "Alternatives to Punishment" provides selections which question the justice of punishment, its deterrent effect and the success of our present penal system. The other sections deal with the strict liability issue, the concept of punishment and the death penalty. Although containing good selections, the sections dealing with the latter two topics, including four and three articles respectively, are quite short. There are long bibliographies for each section and an introductory article by Professor Ezorsky examining the various justifications offered for punishment and arguing for a teleological retributivist theory.—M.G. (shrink)

Collection of essays around the work of H.L.A. Hart.

In terms of intervening in embodied experience, medical treatment is wonder-full in its ambition and its metaphysical presumption; yet, wonder’s role in clinical medicine has received little philosophical attention. In this paper, I propose, to doctors and others in routine clinical life, the value of an openness to wonder and to the sense of wonder. Key to this is the identity of the central ethical challenges facing most clinicians, which is not the high-tech drama of the popular conceptions of medical (...) ethics but, rather, the routine of patients’ undramatic but unremitting demands for the clinician’s time and respectful attention. Wonder (conceived as an intense and transfiguring attentiveness) is a ubiquitous ethical source, an alternative to the more familiar respect for rational autonomy, a source of renewal galvanizing diagnostic imagination, and a timely recalling of the embodied agency of both patient and clinician. (shrink)

This collection of reprinted social philosophy broadly surveys and introduces problems and positions vis-à-vis the concept of right. Using the tools of ordinary language analysis, M. MacDonald evaluates the attempts of other writers to resolve the tensions between civil and moral responsibility. H. L. A. Hart argues that "... if there are any moral rights at all, it follows that there is at least one natural right." His laudatory deductive exercise and categorization of rights suggests no leads for answering (...) the hypothetical he poses. While MacDonald and Hart raise no gut issues, G. Vlastos gives a common sense analysis of the main stream of classical debate, couching his inquiry in terms of conflicts between collective and distributive justice. His article both includes the scope and surpasses the stopping points of the earlier selections. Through leading to a philosophical discussion of the workings of the denial of human rights within the segregationist position, R. Wasserstrom unmasks the practical stakes involved in what the others leave as an academic problem. H. Morris's witty analysis of a hypothetical "right to be punished" lays bare the fact that social institutions embody some concept of right, duty, and obligation. He leaves the reader with the unanswered but clearly indicated question of which concept of right does one want society to sanction. Also included are: J. Locke's The Second Treatise of Civil Government, Chapters two and five; J. Bentham's Anarchical Fallacies; The Virginia Declaration of Rights ; Declaration of the Rights of Man and of Citizens ; Universal Declaration of Human Rights ; and a portion of the Declaration of Independence of the U.S.A.--M. D. P. (shrink)

How should we shape the practice of pastoral care, especially in the context of bioethical counseling? Martin Luther grounded it in a mutual dialogue of brethren. Friedrich Schleiermacher transformed this Protestant understanding according to the modern ideals of freedom and responsibility for oneself. In response to the other basic question of pastoral care: What is the human soul?, Sigmund Freud overcame the Platonic model undergirding Schleiermacher's account. Whoever seeks to care for his own soul and the soul of the other (...) should learn from Freud. One of the most fruitful consequences of such study lies in the formation of a mature religiosity. Another such consequence concerns the pastor's aspiring to an attitude of self-control in counseling. Building one's own competence on the experience and the knowledge of Freud can help one counteract the temptation to transfer one's own (unconscious) wishes onto the conversation partner and conversely to ward off transference from the other onto oneself. On the level of ideals and ultimate principles, however, Christian pastors, unlike Freud, will not see fate and the anonymous forces of Eros and Thanatos, as the ultimate last horizons of human self-understanding. Instead, the good news of sinful man's justification by God transcends even the limits of human existence imposed by fate. (shrink)

In this article the various descriptions and interpretations ofprofessional autonomy, as have been given in the articles from Belgium,Italy and the UK are subjected to a further analysis. The implicit claimthat professional autonomy of physicians is beneficial for the health ofpatients is scrutinized and is proven to be untrue and invalid. Theconclusion is that professional autonomy is more directed at theinterests of physicians than of those of patients and deserves nospecial place in health care.