인간의 이성적 의식과 법의 관계를 밝히고 법의 해석 과 판단에 인간의 의식이 어떻게 작용하는가를 고찰 한 저술. 제1부에서는 법의 형이상학적인 측면에서 법의 실체, 그리스의 법, 데카르트의 법, 로크와 법, 칸트와 법, 헤겔과 법, 아담스미스의 법의 경제, 중국의 도덕과 법사상을 다루었다. 제2부에서는 심리학적 분석으로 헌법의 심리학적 해석, 법의 판결절차, 증거법, 형법과 죄, 청소년과 가족법, 조세법, 플라톤의 법, 칸트의 도덕론의 경험적 확인, 헤겔의 자아와 노동법, 법의 4차원에 대해 다뤘다.

Vice crimes, crimes prohibited in part because they are viewed as morally corrupting, engage legal theorists because they reveal importantly contrasting views between liberals and virtue-centered theorists on the very limits of legitimate state action. Yet advocates and opponents alike focus on the role law can play in suppressing personal vice; the role of law is seen as suppressing licentiousness, sloth, greed etc. The most powerful advocates of the position that the law must nurture good character often draw on Aristotelian (...) theories of virtue to ground the connection between law and virtue. While Aristotle believed that law and character were linked, it is ironic to note that he did not argue for the position evidenced in our vice laws that law was likely to succeed in instilling virtue. Indeed, Aristotle thought the project of using law to instill private virtue was nearly certain to fail. Aristotle’s deep concern was not for the way law protected private virtue within each person but the way law had to protect civic virtue between citizens. This article argues that even from its foundations, the project of vice crimes as moral instruction is misconceived. The use of law for overly instrumental or narrow reasons opens law and legal institutions to abuse and factionalism. Lawyers, judges and others specially connected to law must first and foremost aim at addressing “legal vices,” vices internal to the institutions of law. Particularly, increasing factionalism and instrumentalism which disconnects law from the pursuit of the common good threatens our civic bonds. Most importantly, where civic bonds are disrupted, citizens have no reason to remain law abiding. The striking lesson, captured both in ancient philosophy and modern history, is that when legal vices grow unchecked and factions use the law to pursue narrow interests, ultimately law abidingness is corrupted and interest groups harm themselves as much as others. (shrink)

There have been serious controversies in the latter part of the 20th century about the roles and functions of scientific and medical research. In whose interests are medical and biomedical experiments conducted and what are the ethical implications of experimentation on subjects unable to give competent consent? From the decades following the Second World War and calls for the global banning of medical research to the cautious return to the notion that in controlled circumstances, medical research on human subjects is (...) in the best interest of the given individual and the broader population, this book addresses the key implications of experimentation on humans. This volume covers major ethical themes within biomedical research providing historical, philosophical, legal and policy reflections on the literature and specific issues in the field of research on human subjects. Focusing on special populations (the elderly, children, prisoners and the cognitively impaired) it represents the most up-to-date review of the special ethical and legal conflicts that arise with relation to experimentation on subjects from these groups. In the light of current initiatives for law reform pertaining to research ethics the world over, this volume provides a timely, comprehensive and provocative exploration of the field. The volume has been carefully organized to present important philosophical perspectives on organizing principles that should underlie any practical application. A forward-looking historical review of the regulatory regimes of principal jurisdictions, including of the legal controls already in place, provides the backdrop for future policy initiatives. Additionally, in the light of global restructuring of health care systems, several chapters have been devoted to epidemiological research and related issues. (shrink)

First-2d ed. published under title: Manual de introduccion a la ciencia del derecho.

In this entry, Frege’s logic is introduced and described in some detail. It is shown how the Dedekind-Peano axioms for number theory can be derived from a consistent fragment of Frege’s logic, with Hume’s Principle replacing Basic Law V.

Standard accounts of civil disobedience include nonviolence as a necessary condition. Here I argue that such accounts are mistaken and that civil disobedience can include violence in many aspects, primarily excepting violence directed at other persons. I base this argument on a novel understanding of civil disobedience: the special character of the practice comes from its combination of condemnation of a political practice with an expressed commitment to the political. The commitment to the political is a commitment to engaging with (...) others as co-members in the on-going political project of living together. I show how such an understanding of civil disobedience is superior to the Rawlsian strain of thought, which focuses on fidelity to law. Rawls was concerned with civil disobedience solely in the context of overriding political obligation. The project of characterizing a contestatory political practice that can be distinguished and used in a wider variety of contexts than Rawls is concerned with, including under illegitimate regimes, beyond the nation-state, or on behalf of anarchism, requires a different understanding of civil disobedience. (shrink)

This book examines three areas in which abductive reasoning is especially important: medicine, science, and law. The reader is introduced to abduction and shown how it has evolved historically into the framework of conventional wisdom in logic. Discussions draw upon recent techniques used in artificial intelligence, particularly in the areas of multi-agent systems and plan recognition, to develop a dialogue model of explanation. Cases of causal explanations in law are analyzed using abductive reasoning, and all the components are finally brought (...) together to build a new account of abductive reasoning. By clarifying the notion of abduction as a common and significant type of reasoning in everyday argumentation, _Abductive Reasoning_ will be useful to scholars and students in many fields, including argumentation, computing and artificial intelligence, psychology and cognitive science, law, philosophy, linguistics, and speech communication and rhetoric. (shrink)

_Arguments from Ignorance _explores the situations in which the argument from ignorance functions as a respectable form of reasoning and those in which it is indeed fallacious. Douglas Walton draws on everyday conversations on all kinds of practical matters in which the _argumentum ad ignorantiam _is used quite appropriately to infer conclusions. He also discusses the inappropriate use of this kind of argument, referring to various major case studies, including the Salem witchcraft trials, the McCarthy hearings, and the Alger Hiss (...) case. This book makes an original contribution in the areas of argumentation theory and informal logic, contending that, despite its traditional classification as a fallacy, the argument from ignorance is a genuine, very common, and legitimate type of argumentation with an identifiable structure. But the book is also interdisciplinary in scope, explaining many widely interesting and controversial subjects in artificial intelligence, medical education, philosophy of science, and philosophy of law in a clear way that makes it accessible to a broad range of readers. (shrink)

Debate over the nature of science has recently moved from the halls of academia into the public sphere, where it has taken shape as the "science wars." At issue is the question of whether scientific knowledge is objective and universal or socially mediated, whether scientific truths are independent of human values and beliefs. Ronald Giere is a philosopher of science who has been at the forefront of this debate from its inception, and Science without Laws offers a much-needed mediating (...) perspective on an increasingly volatile line of inquiry. Giere does not question the major findings of modern science: for example, that the universe is expanding or that inheritance is carried by DNA molecules with a double helical structure. But like many critics of modern science, he rejects the widespread notion of science--deriving ultimately from the Enlightenment--as a uniquely rational activity leading to the discovery of universal truths underlying all natural phenomena. In these highly readable essays, Giere argues that it is better to understand scientists as merely constructing more or less abstract models of limited aspects of the world. Such an understanding makes possible a resolution of the issues at stake in the science wars. The critics of science are seen to be correct in rejecting the Enlightenment idea of science, and its defenders are seen to be correct in insisting that science does produce genuine knowledge of the natural world. Giere is utterly persuasive in arguing that to criticize the Enlightenment ideal is not to criticize science itself, and that to defend science one need not defend the Enlightenment ideal. Science without Laws thus stakes out a middle ground in these debates by showing us how science can be better conceived in other ways. (shrink)

Auf Grund aller oben erörterten Betrachtungen und Tatsachen können wir jetzt die folgenden allgemeinen Gesetze der organischen Evolution erwähnen, die bzw. sich an die unmittelbaren Ursachen, Mechanismen und Tendenzen der Evolution beziehen: Alle diese Gesetze bilden zusammen ein einheitliches Ganzes und sind eher als Teilaus drücke eines einzelnen allgemeinen Gesetzes der organischen Evolution aufzufassen. Ob der Verfasser eine richtige Interpretation der Tatsachen gefunden hat, darüber darf man diskutieren; — das ist nur die Fragestellung. Das Problem selbst ist sowohl theoretisch wie (...) auch praktisch sehr wichtig, so dass wir kein menschliches Recht haben um seine Lösung den künftigen Generationen zu überlassen. (shrink)

Analogies come in several forms that serve distinct functions. Inductive analogy is a common type of analogical argument, but critical thinking texts sometimes treat all analogies as inductive. Such an analysis ignores figurative analogies, which may elucidate but do not argue; and also neglects a priori arguments by analogy, a type of analogical argument prominent in law and ethics. A priori arguments by analogy are distinctive, but--contrary to the claims of Govier and Sunstein-they are best understood as deductive, rather than (...) a special form of non deductive reasoning. (shrink)

Drawing on classic and contemporary scholarship and empirical analysis of elections and public expenditures in 80 countries, the author argues for the existence of primary and secondary laws of politics. Starting with how basic elements of politics-leadership, organization, ideology, resources, and force-coalesce in the formation of states, he proceeds to examine the operations of those laws in democracies and dictatorships. Primary laws constrain the support that incumbents draw from the electorate, limiting their time in office. They operate (...) unimpeded in democracies. Secondary laws describe the general tendency of the state to expand vis-à-vis economy and society. They exert their greatest force in one-party states imbued with a totalitarian ideology. The author establishes the primary laws in a rigorous analysis of 1,100 parliamentary and presidential elections in 80 countries, plus another 1,000 U.S. gubernatorial elections. Evidence for the secondary laws is drawn from public expenditure data series, with findings presented in easily grasped tables and graphs. Having established these laws quantitatively, the author uses Cuba as a case study, adding qualitative analysis and a practical application to propose a constitutional framework for a future Cuban democracy. Written in an engaging, jargon-free style, this enlightening book will be of great interest to students and scholars in political science, especially those specializing in comparative politics, as well as opinion leaders and engaged citizens. (shrink)

This second edition has been revised to provide additional coherence to the themes examined and introduces sections on topical issues, for example the chapter on Utilitarianism now includes a discussion on law and economics.

I argue that legitimacy discourses serve a gatekeeping function. They give practitioners telic standards for riding herd on social practices, ensuring that minimally acceptable versions of the practice are implemented. Such a function is a necessary part of implementing formalized social practices, especially including law. This gatekeeping account shows that political philosophers have misunderstood legitimacy; it is not secondary to justice and only necessary because we cannot agree about justice. Instead, it is a necessary feature of actual human social practices, (...) which must be implemented via practitioners' discretion in changing contexts. (shrink)

The essays collected in this special issue explore what legitimacy means for actors and institutions that do not function like traditional states but nevertheless wield significant power in the global realm. They are connected by the idea that the specific purposes of non-state actors and the contexts in which they operate shape what it means for them to be legitimate and so shape the standards of justification that they have to meet. In this introduction, we develop this guiding methodology further (...) and show how the special issue’s individual contributions apply it to their cases. In the first section, we provide a sketch of our purpose-dependent theory of legitimacy beyond the state. We then highlight two features of the institutional context beyond the state that set it apart from the domestic case: problems of feasibility and the structure of international law. (shrink)

Auf Grund aller oben erörterten Betrachtungen und Tatsachen können wir jetzt die folgenden allgemeinen Gesetze der organischen Evolution erwähnen, die bzw. sich an die unmittelbaren Ursachen, Mechanismen und Tendenzen der Evolution beziehen: Unmittelbare Ursachen: das Gesetz der Mutation; Mechanismen: das Gesetz der natürlichen Auswahl : Tendenzen: das Gesetz der funktionellen Differenzierung; das Gesetz der Koordinierung der sich differenzierenden Funktionen; das Gesetz der Integrierung der funktionellen Systemen; das Gesetz der funktionellen Verbesserung des Lebens; das Gesetz der Beschleunigung der Evolution.Alle diese Gesetze (...) bilden zusammen ein einheitliches Ganzes und sind eher als Teilaus drücke eines einzelnen allgemeinen Gesetzes der organischen Evolution aufzufassen. Ob der Verfasser eine richtige Interpretation der Tatsachen gefunden hat, darüber darf man diskutieren; — das ist nur die Fragestellung.Das Problem selbst ist sowohl theoretisch wie auch praktisch sehr wichtig, so dass wir kein menschliches Recht haben um seine Lösung den künftigen Generationen zu überlassen.Life is considered as a functional whole, but not in the holistic sense of the word, because of an essentially different interpretation of the role of the individual element in the evolution of the functional system at various levels of the organisation of the life. This paper contains the following chapters: a) introduction, b) the unity of the life, c) the main questions of the theory of evolution, d) some regularities of organic evolution, and e) the general laws of organic evolution.The following general laws, referring to the immediate causes, mechanisms and tendences of evolution are formulated. the law of mutation , the law of selection , the law of functional differentiation, the law of coordination of the differentiating functions, the law of integration of the functional systems, the law of functional perfection of the life, the law of acceleration of the evolution.All this laws form together an internally coherent system, which may be considered as the unitary law of evolution. (shrink)

A leading expert in informal logic, Douglas Walton turns his attention in this new book to how reasoning operates in trials and other legal contexts, with special emphasis on the law of evidence. The new model he develops, drawing on methods of argumentation theory that are gaining wide acceptance in computing fields like artificial intelligence, can be used to identify, analyze, and evaluate specific types of legal argument. In contrast with approaches that rely on deductive and inductive logic and rule (...) out many common types of argument as fallacious, Walton’s aim is to provide a more expansive view of what can be considered "reasonable" in legal argument when it is construed as a dynamic, rule-governed, and goal-directed conversation. This dialogical model gives new meaning to the key notions of relevance and probative weight, with the latter analyzed in terms of pragmatic criteria for what constitutes plausible evidence rather than truth. (shrink)

Background : researchers and sponsors increasingly confront the issue of whether participants in a clinical trial should have post-trial access (PTA) to the trial drug. Legislation and guidelines are inconsistent, ambiguous or silent about many aspects of PTA. Recent research highlights the potential importance of systematic reviews (SRs) of reason-based literatures in informing decision-making in medicine, medical research and health policy. Purpose: to systematically review reasons why drug trial participants should, or need not be ensured PTA to the trial drug (...) and the uses of such reasons. Data sources: databases in science/medicine, law and ethics, thesis databases, bibliographies, research ethics books and included publications’ notes/bibliographies. Publication selection: a publication was included if it included a reason as above. See article for detailed inclusion conditions. Data extraction and analysis: two reviewers extracted and analyzed data on publications and reasons. Results: of 2060 publications identified, 75 were included. These mentioned reasons based on morality, legality, interests/incentives, or practicality, comprising 36 broad (235 narrow) types of reason. None of the included publications, which included informal reviews and reports by official bodies, mentioned more than 22 broad (59 narrow) types. For many reasons, publications differed about the reason’s interpretation, implications and/or persuasiveness. Publications differed also regarding costs, feasibility and legality of PTA. Limitations: reason types could be applied differently. The quality of reasons was not measured. Conclusion: this review captured a greater variety of reasons and of their uses than any included publication. Decisions based on informal reviews or sub-sets of literature are likely to be biased. Research is needed on PTA ethics, costs, feasibility and legality and on assessing the quality of reason-based literature. (shrink)

The essay replies to comments by Finnis, Gardner and Endicott, on my book, Law as a Moral Idea. It is questioned whether Finnis is right to suggest that governance by law is a requirement of justice. It is suggested that Hart's positivism may have rested upon an unduly private conception of morality. Gardner's suggestion that Law as a Moral Idea falsely manufactures disagreement with Hart is rejected, principally by pointing out that Gardner focuses upon only one issue, where the book (...) already acknowledges that Hart might conceivably agree, and ignores other issues where the disagreement with Hart seems indisputable. In response to Endicott, it is acknowledged that 'politics' could be understood as a moral idea comparable to the idea of 'law', but denied that this robs either thesis of interest. The nature of doctrinal reasoning and law's justificatory force is then discussed. (shrink)

The law of inequality of development in the evolution.The law of inequality is manifested by the universality of the fact, that each living functional system consists of individual components, whose momentary evolutive state, as well as their evolutive trends and speeds are different.The fact itself depends directly from the lack of direction of the elementary changes of heredity .The law is to be considered as one of the eight general laws of evolution which form together a whole.It is pretended (...) that these laws are applicable to all levels of the process of the historical development of life, including also all features of the human life.La ley de la desigualdad del desarrollo en la evolución.La ley de la desigualdad del desarrollo se manifiesta por la universalidad del hecho de que todos los sistemas funcionales vivientes se componen de las partes cuyo estado evolutivo momentanei asi como tendencias y velocidades evolutivas son distintas.Este mismo hecho depende directamente de la falta de la dirección hacia un determinado fin en los cambios elementales de la herencia .La ley debe ser considerada como una de las ocho leyes generales de la evolución, las cuales forman un conjunto indisoluble.Se pretende que estas leyes son aplicables a todos los niveles del desarrollo historico de la vida, incluyendo todas las manifestaciones de la vida humana. (shrink)

Jewish law has a history stretching from the early period to the modern State of Israel, encompassing the Talmud, Geonic and later codifications, the Spanish Golden Age, medieval and modern responsa, the Holocaust and modern reforms. Fifteen distinct periods are separately studied in this volume, each one by a leading specialist, and the emphasis throughout is on the development of the institutions and sources of the law.

I argue for a new conception of practical authority based on an analysis of the relationship between authority and subject. Commands entail a demand for practical deference, which establishes a relationship of hierarchy and vulnerability that involves a variety of signals and commitments. In order for these signals and commitments to be justified, the subject must be under a preexisting duty, the authority’s commands must take precedence over the subject’s judgment regarding fulfillment of that duty, the authority must accept the (...) position and responsibilities of command, and the authority must be sufficiently trustworthy relative to how vulnerable the subject makes herself by deferring. This results in an instrumentalist conception of practical authority that can be favorably compared to Joseph Raz’s famous service conception. The relational conception’s main advantage is that it focuses on the authority as much as the subject, requiring that the authority accept responsibility for the relationship and be sufficiently trustworthy. (shrink)

Causal determinism is the view that all events in the universe are predetermined and that the laws of nature causally necessitate these events. In the debates on free will, there are two different positions called incompatibilism and compatibilism. Accordingly, compatibilist accounts claim that free will and causal determinism can be compatible and coexist. On the contrary, incompatibilist accounts defend that compatibilist accounts are problematic and claim that free will cannot exist in a universe where causal determinism holds. The main (...) approach that we will consider in this work will be the incompatibilist approach of the American philosopher Peter van Inwagen, which he defends in free will debates. The arguments put forward by Peter van Inwagen as the basis of incompatibilism can be summarized as the consequence argument and the Mind argument. The consequence argument, hypothetically takes into account a world in which causally deterministic and claiming that free will doesn't exist in such a world. Peter van Inwagen's Mind argument, on the other hand, claims that agent-causation cannot be sufficient for a definite possession of free will because a person who represents oneself as an agent in every event s/he is involved in, cannot be sure whether the consequences of these events are due to chance. In both arguments, Peter van Inwagen refers to philosophical moves that affirm incompatibilism is consistent for free will debate. Therefore in my dissertation, I argue that incompatibilism is actually a sufficient step towards solving the free will and causal determinism dilemma in a theoretical sense. This work also deals with Peter van Inwagen's views on philosophy of action and philosophy of religion in general. Additionally, in order to draw the relational framework between causal determinism and free will, the concepts of 'event', 'causal powers' and 'states of affairs' are used methodologically. Instead of just having an ethical discussion of free will, I took care to stay within the boundaries of the metaphysics of free will. (shrink)