This book proves to be an excellent guide through the labyrinth of law. Its crucial point is legal order viewed from the perspective of a situated "We". Jurisprudence appears as an implicit sort of thinking, embedded in moral, political, epistemological, and linguistic contexts. Numerous example cases lead us from everyday issues to the abysses of violence. Anyone who practices or studies law will highly profit from reading this book. One sees how law functions by being more than mere law. Bernhard (...) Waldenfels, Ruhr-University Bochum, Germany Legal Thought and Philosophy clarifies background questions in legal research projects, such as the relationship between law and justice, law and politics, law and knowledge, facts and norms, normativity and validity, constituent and constitutional power, and rule and context. It provides advanced students in law and philosophy with an account of legal thinking that combines analytical and phenomenological insights. From a conception of justice as principled political self-restraint, the book explains why there are moral reasons to separate law from morality conceptually and in what sense a legal order is positive--that is, set by authority and bound up with history. The book explores the conditions under which law may become an object of knowledge and theorising, before finally discussing how these features come together in law as rule-following by citizens, officials, judges, and legislators alike. Addressing advanced students in law and philosophy, this key book: bridges separate traditions in legal philosophy (in particular analytical philosophy and phenomenology), develops a view of law as an institution of authority from a conception of justice in the socio-political relationship between we and the others, presents a systematic account of normativity and validity, explains in what sense law is doing things with rules. (shrink)

In the Social Contract Rousseau gives what could be called a philosophical rule of recognition for law in Modernity: a law is law if and only if 'the whole people rules over the whole people'. Thus, he defines self-legislation as, at bottom, collective intentional action. I will first map out the speech act structure [LEX] underlying self-legislation on this account. In particular, I argue for a first person plural counterpart of the reflexive structure inherent to intentions generally: the notion of (...) a collective self. Then I take issue with Bratman's analysis of shared intentional activity in terms of mutuality, submitting that it misses out on the specifically political presupposition involved in 'doing something together'. I will show why 'mutuality' requires representation of the unity of a polity, and how this representation can take form without either external authority or mutual responsiveness. (shrink)

This issue is a special investigation into phenomenology of law through the thought of Bernard Waldenfels. Waldenfels, who is presently emeritus professor of philosophy at Ruhr Universität, Bochum, has made a name for himself in his own research and publications on the nexus surrounding the other as non-phenomenon, language as response, and the fissures of corporeality.Along side his expansive introduction and own separate article, guest editor Bert van Roermund has collected together six outstanding contributions to this ‘Waldenfeldian’ phenomenology of (...) law.Waldenfels himself kicks of this number with an original article outlining his conception of the legal order within a phenomenology of the other. Arguing that the legal order, like all orders, must have its own particular ‘outside’ or ‘unsaid,’ he investigates the critical perspectives that thus emerge.Then, David Janssens takes up Waldenfels’ treatment of Plato, which Janssens approaches through a Socratic investigation into the aporias at the foundation of the Platonic legal order. Waldenfels’ Plato seems rather Socratic in his confrontation of the reader with alterity.Next, William Conklin offers an in-depth investigation into the question as to how can human rights be considered universal by the very tribunals that also grant nations the right to define those who may legally be considered persons? Waldenfels’s notion of territorial structure offers its apparatus to Conklin’s substantial critique.Petra Gehring goes into the phenomenological theory of law, looking the ability of the law as an order to respond to claims of the alien. Claiming that law in fact is unable to respond, Gehring argues that phenomenology should legal phenomena critically as a problem of order within the double nature of what Waldenfels calls Anspruch and Antwort.Hans Lindahl analyzes the spatio-temporal borders of the European Union to lay bare the genesis of the Community’s legal order. Lindahl reveals this genesis to embody Waldenfels’ notion of the “chiasm of strangeness,” wherein the foundation of a Heimwelt simultaneously generates a Fremdwelt, and thus questions the very ability of Europe to be its own place.Finally, guest-editor Bert van Roermund supplements his introduction with yet another original contribution arguing that modern legislation is self-legislation. Attempting to identify the different voices comprising this self in an analytical scheme he terms [LEX], van Roermund borrows from Waldenfel’s notion of response and alterity in his analysis of how this structure responds to the classical notion of justice for every subject. (shrink)

The core of Kelsen's strong views onauthority emerging from his concept of law is this:Authority of law, authority in law andauthority about law are one and the same thing.The conceptual problems suggested by these threedifferent prepositions must and can be solved in onefell swoop. Kelsen's core view will first be probed bygiving an account of what is a promising approachoffered in a fairly early text, Das Problem derSouveränität, namely, what it means to`set' or `posit' the law. Inevitably, this leadsto an (...) interpretation of the Grundnorm, one thatintends to accommodate as many Kelsenian emphases aspossible. The Grundnorm will be presented as ashield against hypostatising authority. From there,some characteristics will be inferred of the type ofauthority that arises from Kelsen's account of legalknowledge, which will be called, somewhat polemically,authority without an author. (shrink)

Sovereignty and representation are the two concepts that legal theory is quick to regard as redundant in any account of legal authority. Sovereignty is alleged to be at odds with both the facts and the values of political pluralism; representation is, at most, a provisional substitute for participation in supra- and infra-national legal development. Antonio Negri, however, analyses sovereignty and representation as the two, closely linked, conceptual devices by which a legal order neutralizes constitutive political power. He argues that constitutionalism (...) and institutionalism are but the contemporary guises of these traditional notions and advocates openness for the multifarious initiatives of 'the multitude' to create new societal structures. This article argues that Negri is right in his critique of, in particular, institutionalism, but that he is wrong in thinking that Lefort's position can be reduced to its simple version. In the background of Lefort's theory we should see the political analogon of Merleau-Ponty's celebrated distinction between parole parlante and parole parlée. Negri himself appears unable to avoid the appeal to questionable referents of sovereignty and representation. (shrink)

This volume examines the problems of legal and linguistic diversity in the EU legal system. In a union of 27 member states, with 23 different languages, how can the coherence of EU law be guaranteed? Is there a common understanding between lawyers from different national backgrounds as to the meaning and domestic application of EU law? The volume addresses these central questions from a range of theoretical and practical perspectives.

This paper reflects on the idea of ‘visualization’ of legal rules as part of an account of rule following in action. Presenting an alternative to Van Schooten’s (Jurisprudence and communication. Deborah Charles, Liverpool, 2012) account of interpretation, I first distinguish between two modes of interpretation: rehearsing and discursive. I argue that the former is the more basic one, relating to our respecting sources, rather than noticing signs, in action. In other (Wittgensteinian) words, we have to understand how we take guidance (...) from rules. This account can profit from an analysis of what ‘seeing’ amounts to. Taking my cue from Merleau-Ponty, I point to the intertwinement between agent and world in seeing, in rule-following, and eventually in legal rule-following. The proof of the pudding is an alternative account of the time-honoured paradigm of legal interpretation: Hart’s ‘no vehicles in the park’. I show how this example is predicated on detecting ‘depth-clues’ in a rule, which allow an agent to correlate his vantage point to a vanishing point of a rule. The example illustrates a key-feature of rule following: reflexivity. I cannot follow a rule unless I project myself into its picture. (shrink)

Making a first sketch of philosophical issues arising from European Community law I want to present a series of more or less obvious, and more or less interrelated dilemmas, or even 'double binds'. Deepening the community becomes incompatible with widening membership. National states seem both necessary for and obstructive in articulating transnational problems. The more democracy is needed as a warrant for the public exercise of political power in Europe, the more the very concept of democracy on a European scale (...) evades understanding. European unity presupposes a unifying rule of law, while member states have radically different conceptions of this principle. Even the very core of European integration, the common market, is subject to two conflicting and, indeed, incompatible doctrines of competition. In explaining the nature of each dilemma I will try to take my cue from the Maastricht Treaty wherever this seems suitable. Then I will elaborate on the jurisprudential problems involved in it. Finally, each section will be closed by an attempt to state the nature of these problems in philosophical terms. (shrink)

In this paper Section 1 distinguishes between two modes of interpreting legal rules: rehearsal and discourse, arguing that the former takes priority over the latter in law, as in many other contexts. Section 2 offers two arguments that following a legal rule in the rehearsing mode presents a riddle. The first argument develops from law, and submits that legal rules do not tell us anything, because they are tautological. The second one develops from philosophy (Wittgenstein's later works), confronting us with (...) the paradox that incompatible courses of action may be derived from any rule. My solution presents a theory of rules as icons (Section 3). I use “icon” rather than “picture,” partly to avoid confusion with what is known among philosophers as “the picture theory of meaning.” Interpretation in the rehearsing mode hinges on imagination: imagining oneself in the space of reasons for action rather than reasoning oneself. In this act of imagination, we project ourselves into the rule in ways that are similar to the way we grasp the sense of paintings, music, stories, or poems. Finally (Section 4) I will defend the position that my view solves the puzzles in the second section, by arguing (a) that it is a better account of what Wittgenstein wrote than two competing theories (intuitionism and conventionalism), and (b) that it provides a more satisfactory account of how lawyers deal with legal rules in actual practice. (shrink)

The French Code civil , including the tradition of legal practice and scholarship it stands for, is the child of two parents: Enlightenment and Restoration. They came together in the person of Jean Etienne Marie Portalis (1746-1807), who was the main drafter of the code under Napoleon. I want to investigate which line of philosophical argument he followed in uniting the two and critically assess the value of this argumentation. In section 1 I briefly sketch the codification of civil law (...) in the (post-)revolutionary setting of the time, as well as Portalis’ philosophical background. Section 2 turns to the principled and wide-ranging discourse he delivered at the occasion of the formal presentation of the draft civil code to the legislature. This discourse, in turn, found its deeper roots in an extensive treatise that he wrote prior to the former, on the use and abuse of reason in times of Enlightenment (Section 3). I will focus, in particular, on the twin concepts of knowledge (section 4) and nature (section 5) in this treatise. From this vantage point, section 6 analyzes the eclectic way in which Portalis uses his philosophical godfathers Montesquieu and Rousseau, while section 7 shows why his preoccupation with the protection of established property rights can explain such eclecticism. Section 8 takes stock and submits that at least one of Portalis’ arguments presents a real challenge to Enlightenment philosophy up until the present day. (shrink)

Legislation in Modernity is self-legislation: legislation by a collective self. I argue that it can be formally characterised as a first-person plural intention, featuring an index ‘we’ at four different positions: the originator of the speech act expressing the intention, the subject of the intention expressed, the agent of the action intended, and the beneficiaries of the action to be performed. I carve out these four positions or ‘voices’ of the first person inlegislation, summarising them in an analytical scheme [LEX].But (...) self-legislation presupposes self-inclusion. Thus, it constitutes a boundary between the plural self and its alien. Taking my cue from Waldenfels’ explorations of responsiveness to ‘the alien,’ I ask how and why [LEX] responds to the classical appeal of justice: ‘to give everyonehis or her due.’ What does it mean to say that a self-enclosed ‘we’ is the agent of this giving? I will argue that the boundary constituted by this enclosure is possible only if it is imagined to be traversable.Throughout the argument, my main concern is with the question in what sense and to what extent a legal order requires unity. (shrink)

Due to its extraordinary predictive power and the great generality of its mathematical structure, quantum theory is able, at least in principle, to describe all the microscopic and macroscopic properties of the physical world, from the subatomic to the cosmological level. Nevertheless, ever since the Copen hagen and Gottingen schools in 1927 gave it the definitive formu lation, now commonly known as the orthodox interpretation, the theory has suffered from very serious logical and epistemologi cal problems. These shortcomings were immediately (...) pointed out by some of the principal founders themselves of quantum theory, to wit, Planck, Einstein, Ehrenfest, Schrodinger, and de Broglie, and by the philosopher Karl Popper, who assumed a position of radical criticism with regard to the standard formulation of the theory. The aim of the participants in the workshop on Open Questions in Quantum Physics, which was held in Bari (Italy), in the Department of Physics of the University, during May 1983 and whose Proceedings are collected in the present volume, accord ingly was to discuss the formal, the physical and the epistemo logical difficulties of quantum theory in the light of recent crucial developments and to propose some possible resolutions of three basic conceptual dilemmas, which are posed respectively ~: (a) the physical developments of the Einstein-Podolsky-Rosen argument and Bell's theorem, i. e. (shrink)

Recent accounts on the global workspace theory suggest that consciousness involves transient formations of functional connections in thalamo-cortico-cortical networks. The level of connectivity in these networks is argued to determine the state of consciousness. Emotions are suggested to play a role in shaping consciousness, but their involvement in the global workspace theory remains elusive. In the present study, the role of emotion in the neural workspace theory of consciousness was scrutinized by investigating, whether unconscious and conscious display of emotional compared (...) to neutral facial expressions would differentially modulate EEG coherence. EEG coherence was measured by means of computing an average EEG coherence value between the frontal, parietal, and midline scalp sites. Objective awareness checks evidenced that conscious identification of the masked facial expressions was precluded. Analyses revealed reductions in EEG coherence in the lower frequency range for the masked as compared to unmasked neutral facial expressions. Crucially, a decline in EEG coherence was not observed for the emotional facial expressions. In other words, the level of EEG coherence did apparently vary as a function of awareness, but not when emotion was involved. The current finding suggests that EEG coherence is modulated by unconscious emotional processes, which extends common views on the global workspace architecture of consciousness. (shrink)

From an epistemological viewpoint, the Forms constitute the objects of true knowledge. From an ontological point of view, they are the principles that underlie the order of the universe.

These are the proceedings of the Workshop on Quantum Logic held in Erice (Sicily), December 2 - 9, 1979, at the Ettore Hajorana Centre for Scientific Culture. A conference of this sort was originally proposed by Giuliano Toraldo di Francia, who suggested the idea to Antonino Zichichi, and thus laid the foundation for the Workshop. To both of them we express our appreciation and thanks, also on behalf of the other participants, for having made this conference possible. There were approximately (...) fifty participants; their names and institutions are listed in the text. Quantum logic, which has now a history of some forty or more years, has seen remarkable growth during the sixties and seventies. The papers in the present volume presuppose, by and large, some acquaintance with the elements of the subject. These may be found in the well-known books by J.H. Jauch (Foundations of Quantum Hechanics; Reading, 1968), V.S. Varadarajan (Geometry of Quantum Theory: Princeton, 1968), and C. Piron (Foundations of Quantum Theory; New York, 1976). The initial program for the conference listed about twenty-five invited papers. But in the context of a very active and qualified attendance, other contributions were offered. This volume contains all of them. The program listed six main topics: I. Classification or different areas of quantum logic, and open problems. II. Comparison and unification of different approaches to quantum theories; problems of interpretation. III. Formal quantum logic; axiomatics. IV. Hodal interpretations of quantum logic. v vi FOREWORD V. Quantum set theory. (shrink)

OBJECTIVES: Cognitive and sensory difficulties frequently jeopardize informed consent of frail elderly patients This study is the first to test whether preliminary research experience could enhance geriatric patients' capacity to consent. DESIGN/SETTING: A step-wise consent procedure was introduced in a study on fluid balance in geriatric patients. Eligible patients providing verbal consent participated in a try-out of a week, during which bioelectrical impedance and weight measurements were performed daily. Afterwards, written informed consent was requested. Comprehension, risk and inconvenience scores (ranges: (...) 0-10) were obtained before and after the try-out by asking ten questions about the study's essentials and by asking for a risk and inconvenience assessment on a ten-points rating scale. SUBJECTS AND RESULTS: Seventy of the 78 eligible subjects started the try-out and 53 (68%) provided written consent. The comprehension score increased from 5.0 (+/- 2.3) to 7.0 (+/- 1.9) following the try-out (P < 0.001). The number of subjects capable of weighing risks and inconveniences increased from 32 to 48 (P < 0.001). CONCLUSIONS: Research experience improved the capacity to consent, still enabling an acceptable participation rate. Therefore, experienced consent seems a promising tool to optimize informed consent in frail elderly subjects. (shrink)

This paper investigates connectionism's potential to solve the frame problem. The frame problem arises in the context of modelling the human ability to see the relevant consequences of events in a situation. It has been claimed to be unsolvable for classical cognitive science, but easily manageable for connectionism. We will focus on a representational approach to the frame problem which advocates the use of intrinsic representations. We argue that although connectionism's distributed representations may look promising from this perspective, doubts can (...) be raised about the potential of distributed representations to allow large amounts of complexly structured information to be adequately encoded and processed. It is questionable whether connectionist models that are claimed to effectively represent structured information can be scaled up to a realistic extent. We conclude that the frame problem provides a difficulty to connectionism that is no less serious than the obstacle it constitutes for classical cognitive science. (shrink)

Probability kinematics is the theory of how subjective probabilities change with time, in response to certain constraints . Rules are classified by the imposed constraints for which the rules prescribe a procedure for updating one's opinion. The first is simple conditionalization , and the second Jeffrey conditionalization . It is demonstrated by a symmetry argument that these rules are the unique admissible rules for those constraints, and moreover, that any probability kinematic rule must be equivalent to a conditionalization preceded by (...) a determination of the values x i to be given to the members of such a partition. Next two rival rules which can go beyond such conditionalization are described. INFOMIN and MTP . Their properties are investigated and compared. (shrink)