The Italian Pragmatists were a group of philosophers in the early 20th century. They gathered around the journal _Leonardo_, which was published in Florence. This volume emphasizes what they all shared, as well as their value for philosophy and culture.

This paper is a contribution to the study of the four classical Italian pragmatists: Papini, Prezzolini, Vailati and Calderoni. They are seen more as representatives of a pragmatist movement than as singular systematic thinkers. The center of Italian pragmatism was the periodical, Leonardo, where these authors discussed and presented an original and provocative understanding of pragmatist philosophy. Thier understanding of pragmatist philosophy has often been underestimated by the subsequent literature. They showed a good comprehension of the novelty brought by American (...) pragmatism but, ignoring some of the most important epistemic aspects of Peirce’s and James’s theories, their philosophical proposals often missed consistency. However, even in their misunderstandings, they signaled a need and possibly a weakness of the whole pragmatist movement. Italian pragmatists underlined the importance of the concreteness of individuals in the realization of universal laws of mathematics and logic, physics and psychology. But, this attitude suffered from some serious tensions between metaphysical assumptions and methodological claims. (shrink)

The Article addresses three main questions. First: Why do some scholars and decision-makers take evidence assessment criteria as standards of proof and vice versa? The answer comes from the fact that some legal systems are more concerned with assessment criteria and others with standards; therefore jurists educated in different contexts tend to emphasize what they are more familiar with, and to assimilate to it what they are less familiar with. Second: Why do systems differ in those respects? Here the answer (...) stems from the historical, institutional and procedural differences that explain why some systems are more concerned with assessment criteria and others with standards of proof. And third, assuming that both criteria and standards are necessary to legal decision-making about facts: How can a system work if it neglects one of these things? Here the Article argues that there is a functional connection between criteria and standards. The functional connection account is distinguished from a functional equivalence account, and some systems and jurisdictions are referred to in greater detail to support the functional connection claim. (shrink)

The paper provides a conceptual distinction between evidence assessment criteria and standards of proof. Evidence must be assessed in order to check whether it satisfies a relevant standard of proof, and the assessment is operated with some criterion; so both criteria and standards are necessary for fact-finding. In addition to this conceptual point, the article addresses three main questions: Why do some scholars and decision-makers take assessment criteria as standards of proof and vice versa? Why do systems differ as to (...) criteria and standards? How can a system work if it neglects one of these things? The answers to the first and second question come from the historical and procedural differences between the systems. The answer to the third focuses on the functional connection between criteria and standards. (shrink)

In his tightly argued, thought-provoking volume Interpretation without Truth, Pierluigi Chiassoni offers a groundbreaking, reductionist account of judicial fictions.1 Under Chiassoni’s view, judici...

Projectual abduction is the inference drawing the means to achieve an end. Planning a course of action is an inferential task and we claim that the relevant inference is abduction. We distinguish projectual abduction from epistemic abduction. While epistemic abduction aims to determine an explanatory relation, projectual abduction aims to determine a teleological relation. It is important to remind in any case that abduction does not stand by itself: as is true for epistemic abduction, projectual abduction has to be developed (...) and evaluated by subsequent deduction and induction. After defining projectual abduction in section 1, we focus on the relations between projectual abduction, normativity and truth in section 2. Then we sketch how projectual abduction works in artistic creativity , in evolutionary and teleological processes and finally in social processes. (shrink)

The paper argues for a pragmatist understanding of the reasonable doubt standard in law. It builds on the idea that our dispositions to act signal the epistemic states we are in. This helps clarify the notion of a reasonable doubt and the idea of being certain beyond it. More specifically, the paper points out three major standards of proof used in legal contexts and the rationale of their distinction. It articulates the received view according to which the reasonable doubt standard (...) is superior to allegedly subjective standards as the French “intime conviction”; then it addresses what I call the “rampant critique” of the reasonable doubt standard, namely the view that, as the notion of a reasonable doubt is obscure and undetermined, the standard is irremediably subjective. The paper finally presents a pragmatist understanding and defense of the standard, building on the idea of beliefs as dispositions to act. (shrink)

The most extreme form of legal realism says that judicial decisions depend on what judges had for breakfast. It is unclear whether any of the American realists really claimed anything of that sort. Sometimes Jerome Frank is charged with that extreme view, which is not surprising given that Frank is generally considered to be the most radical, skeptical and cynic among those realists. It has been said in fact that critics of American legal realism have promoted a “Frankification” of this (...) movem.. (shrink)

Prema najekstremnijem obliku pravnoga realizma sudske odluke ovise o tome što su suci jeli za doručak. Nejasno je je li itko od američkih pravnih realista takvo što zaista i tvrdio. Ponekad se to ekstremno stajalište pripisuje Jeromeu Franku, što nije iznenađujuće s obzirom da se Franka obično smatra najradikalnijim, najskeptičnijim i najciničnijim među tim realistima. Tvrdi se zapravo da su kritičari američkog pravnog realizma promovirali «frankifikaciju» toga pokreta upravo kako bi ga učini..

El artículo se pregunta qué sentido tiene la práctica de conferir o reconocer derechos y sostiene que son sus consecuencias lo que nos interesa y lo que hace sensata la práctica relacionada con ellos. La virtud de esta tesis es que permite aterrizar el vocabulario aéreo de los derechos y que invita a determinar sus contenidos específicos con la mayor precisión posible. Se trata de una tesis realista y pragmatista respecto de los derechos. Realista, porque busca comprender en qué consiste (...) realmente ser titular de derechos; pragmatista, en la medida en que, para hacerlo, se interesa por las consecuencias de su titularidad. El artículo busca también mostrar el modo en que una tesis pragmatista sobre los derechos puede dar cuenta de los derechos fundamentales. (shrink)

El trabajo presenta un caso civil donde se muestra la necesidad de aclarar la ratio legis de una regulación legislativa para determinar la legitimidad de su aplicación analógica. Esto significa que el argumento analógico requiere una interpretación teleológica de los textos normativos pertinentes, para determinar la ratio de una regulación y luego proceder a una posible integración analógica del derecho. En la medida en que la interpretación teleológica no sólo sirve para determinar el contenido de un texto a la luz (...) de su razón subyacente, sino también para determinar la razón misma, la interpretación teleológica es necesaria para la analogía. Al mismo tiempo, el trabajo muestra cómo el uso de la ratio es controvertido y que los argumentos jurídicos de segundo grado pueden resolver los casos más problemáticos. (shrink)

In this paper, we discuss the notion of inevitable ignorance that the Italian Constitutional Court has introduced in justifying a restriction of the legal maxim Ignorantia legis non excusat. In particular, we argue that the epistemic flavor of the notion extends to the notion of inevitability beside that of ignorance, and we offer an epistemic analysis of the notion. This analysis is based both on the legal-theoretical framework defined by the justification of the restriction of the maxim, and on a (...) discussion of some paradigmatic Italian cases where the standard of excusability involving inevitable ignorance is applied. The analysis reveals that the notion of inevitable ignorance is closely connected to a number of notions also used in formal epistemology, such as belief, evidence, rationality, and trust. (shrink)

Le code italien de déontologie de l’avocat impose à ce dernier, outre un devoir général de probité, un devoir de vérité dans le procès. Ce travail analyse la portée de ce devoir et soutient qu’il revient plutôt à l’interdiction du mensonge et au devoir de faire des assertions justifiées par les preuves disponibles. Cela ne signifie pas cependant que la vérité ne joue aucun rôle dans le procès. En effet, d’une part, les assertions en justice soulèvent une prétention de vérité, (...) fondée sur une conception de la vérité comme correspondance, et, d’autre part, les apports des avocats et des parties, notamment à travers les procédures contradictoires, permettent de découvrir la vérité sur les faits pertinents. (shrink)

The article addresses three theses on judgment in general and legal judgment in particular, starting from Peirce’s and Dewey’s claims about them. The first thesis, ontological, concerns the content of an act of judgment and says that judgment is about an object instantiating a property (not about a property instantiated by an object). The second, alethic, concerns the relation between judgment and truth and says that judgment is the attribution of a truth value to a proposition. The third, genetic, deals (...) with the moments of judgment claiming it is a process susceptible of being articulated in such moments. Its fundamental moments are 1) hypothesis, 2) inquiry, 3) result. The article claims that the three theses interconnect and hold for both judgment in general and legal judgment, given that the latter is a model of the former; so a complex conception of judgment is articulated, discussing also its relations with assertion and inference. (shrink)

La justification des croyances peut être de nature pragmatique – à savoir, une justification qui dépende des enjeux pratiques de la situation dans laquelle le sujet ayant une certaine croyance se trouve. De plus, dans des contextes spécifiques, comme par exemple le contexte juridique, il y a des cas où une connaissance est attribuée à un sujet ayant une croyance vraie en faisant abstraction de la justification qu’il peut avoir ou non à propos de sa croyance. Dans ces cas, l’attribution (...) de connaissance est justifiée par les enjeux pratiques de la situation, de façon analogue à celle où une croyance est justifiée par un critère pragmatique.The pragmatic justification of beliefs may be of pragmatic nature, namely a justification which depends on practical stakes in the situation in which the subject having a certain belief finds himself. Furthermore, in specific contexts, as for example the legal context, there are cases where a knowledge is granted to a subject having a true belief by disregarding the justification which he can have or not about his belief. In those case, the attribution of knowledge is justified by the practical stakes of the situation, in a similar way to that where a belief becomes justified by a pragmatic criterion. (shrink)

Riassunto : Per la teoria della documentalità gli oggetti sociali sono atti iscritti e per la teoria della mente estesa le menti si estendono a processi o dispositivi esterni al corpo. Pur per motivi diversi, le due teorie convergono nel ridurre le differenze fra menti e documenti, e hanno a loro supporto la dimensione semiotica di menti e documenti; eppure, in una certa lettura, tali teorie risultano implausibili se si considera che le proprietà delle cose che chiamiamo “menti” non sono (...) identiche alle proprietà delle cose che chiamiamo “documenti”. Ciò chiama in causa una implicita tesi comune alle due teorie, quella di un esternismo forte che può essere messo in discussione in favore di un esternismo moderato o interazionista. Parole chiave : Diritto; Documentalità; Esternismo; Oggetti sociali; Ontologia sociale; Mente estesa; Maurizio Ferraris Minds are not documents: In the theory of documentality, social objects are understood as inscribed acts; in extended mind theory, minds are considered to extend beyond the body to external processes and devices. Although for different reasons, these two theories rely on the semiotic dimension to reduce the differences between minds and documents. Yet, in a certain reading, such theories are implausible if we consider that the properties of the things we call “minds” are not identical to the properties of the things we call “documents”. This calls into question a common thesis implicit in both theories: that moderate or interactionist externalism can be used to challenge strong externalism. Keywords : Law; Documents; Extended Mind; Externalism; Social Objects; Social Ontology; Maurizio Ferraris. (shrink)

In some of his philosophical and scientific works Charles S. Peirce emphasized the economic constraints put upon scientific research. The process of generation, selection and testing of hypotheses, as well as the collection of data and information, is subject to time and resource constraints. Working scientists must individuate the most promising hypotheses and lines of research given the amount of resources at disposal. To this effect they have to estimate in particular the resources needed for testing, and what the acceptability (...) standards require. To put this into economic terms, they have to estimate the expected benefits of research compared with its expected costs. Those who allocate research funds... (shrink)

Frederic Kellogg has already published several works on legal pragmatism and on Oliver Wendell Holmes in particular.1 In this volume, he focuses on the early history of Holmes' views, on his readings in law and philosophy, and his interests in science in the years of the Metaphysical Club. Drawing on sources like Francis Bacon, John Stuart Mill and Chauncey Wright, Holmes developed an inductive approach to common law reasoning; eventually, as I discuss below, this approach needed refinement when he engaged (...) with constitutional interpretation. Other parts of the book focus on contemporary issues like legal indeterminacy, hard cases, the role of politics in legal interpretation, Rorty's neopragmatism, liberalism and... (shrink)

Epistemic and practical interests are often in conflict. This also occurs in institutional settings such as the legal one. Rule 407 of the U.S. Federal Rules of Evidence is an example of that because it sacrifices some epistemic interests in favour of practical ones. It is the rule on subsequent remedial measures (SRM), which is mainly designed to answer a practical concern (reducing accidents) instead of the epistemic one of getting some evidence to find out whether the defendant was negligent (...) or whether there was a defect in a product. Some commentators and courts think that the rationale of the rule is more complex and deserves a more careful discussion, as this paper shows. Additionally, this paper discusses a modification proposal (from categorical ban of SRM evidence to case‐by‐case decision) and develops some theoretical considerations, in the spirit of philosophical pragmatism, on the best way to conceptualize the problem addressed. The idea is to see such conflicts as conflicts of goals and to explain them in terms of the incompatible desires that we happen to have. (shrink)

We remark that the A Contrario Argument is an ambiguous technique of justification of judicial decisions. We distinguish two uses and versions of it, strong and weak, taking as example the normative sentence “Underprivileged citizens are permitted to apply for State benefit”. According to the strong version, only underprivileged citizens are permitted to apply for State benefit, so stateless persons are not. According to the weak, the law does not regulate the position of underprivileged stateless persons in this respect. We (...) propose an inferential analysis of the two uses along the lines of the scorekeeping practice as described by Robert Brandom, and try to point out what are the ontological assumptions of the two. We conclude that the strong version is justified if and only if there is a relevant incompatibility between the regulated subject and the present case. (shrink)

"Philosophical Foundations of Evidence Law presents a cross-disciplinary overview of the core issues in the theory and methodology of adjudicative evidence and factfinding, assembling the major philosophical and interdisciplinary insights that define evidence theory, as related to law, in a single book. The volume presents contemporary debates on truth, knowledge, rational beliefs, proof, argumentation, explanation, coherence, probability, economics, psychology, bias, gender, and race. It covers different theoretical approaches to legal evidence, including the Bayesian approach, scenario theory, and inference to the (...) best explanation. The volume’s contributions come from scholars spread across three continents and twelve different countries, whose common interest is evidence theory as related to law"-- from publisher's website. (shrink)

Several legal arguments use the notion of ratio legis in order to sustain a normative conclusion, in particular the argument from analogy and some forms of teleological argumentation. However, determining the ratio is often a difficult and controversial task. In this paper we look firstly at the speech acts typically performed by legal practitioners in order to determine the ratio and, secondly, we take into account the argumentative commitments they undertake in so doing and the argumentative constraints put on them. (...) This will lead us to distinguish different uses of the notion of ratio legis and to ask on what conditions each of them is justified. (shrink)

In this paper we consider whether a pragmatics of semantic content can be a useful approach to legal interpretation. More broadly speaking, since a pragmatic conception of meaning is a component of inferential semantics, we consider whether an inferentialist approach to legal interpretation can be useful in dealing with some problems of this important aspect of law. In other words, we ask whether Legal Inferentialism is a suitable conception for legal interpretation. In Section 1 we briefly consider the semantics/pragmatics debate (...) in contemporary philosophy of language and in relation to legal interpretation. In Section 2 we discuss the relations between a pragmatics of semantic content and an inferentialist conception of content. In Section 3 we consider how Inferentialism can be applied to legal interpretation. Finally, in Section 4 we consider some possible advantages and drawbacks of Inferentialism applied to legal interpretation and adjudication. (shrink)

The A Simili Argument draws the conclusion that a target case has a normative property Q since it shares a relevant property P with a source case. It can be seen as a complex inference constituted by three inferential steps: An abduction of the relevant property P , an induction of the class having that property, and a deduction of the target's having property Q . A major problem of this argument is the characterization of the property relevance. The standard (...) answer refers to the notion of ratio: It is the ratio that fixes what is relevant for what. But the determination of the ratio is often a difficult and controversial task. This issue is considered here from an inferentialist point of view, claiming that the ratio and relevance are determined by the normative statuses reciprocally attributed by the speakers in the context of legal argumentation. (shrink)

The paper is about the uses of the argument from legislative counterfactual intention, in the field of legal interpretation and argumentation. After presenting the argument from intention in general, it distinguishes the varities of the argument from counterfactual legislative intention and discusses their justification conditions.

Riggs v. Palmerhas become famous since Dworkin used it to show that legal positivism is defective. The debate over the merits of Dworkin's claims is still very lively. Yet not enough attention has been paid to the fact that the content of the statute at issue inRiggswas given by thecounterfactual intentionof the legislature. According to arguments from legislative intent, a judicial decision is justified if it is based on the lawmaker's intention. But can legislative intentions be determined counterfactually? More generally, (...) what are the discursive commitments undertaken by a lawyer or a judge, in an exchange of legal reasons, when using this interpretive methodology? This paper addresses these issues considering, in particular, David Lewis's “resemblance” condition and “relevant similarity” between possible worlds in the evaluation of counterfactual statements. The analysis sheds some new light on the debate on theoretical disagreements and shows that Dworkin's conception of law as an argumentative practice is not necessarily at odds with legal positivism. It rather allows us to look at it under a better light. (shrink)

Extensive interpretation of legal provisions is in tension with the prohibition of reasoning by analogy in criminal law, for it is unclear what the difference is between the two. Some scholars claim that they differ from a theoretical point of view, since they do not have the same argumentative structure. On the other hand, the two come to the same result starting from the same legal materials: they justify the extension of a regulation to a case that is not explicitly (...) considered by the law. The paper deals with this issue discussing a recent Italian case and proposes an account of the distinction between the two based upon the principle of semantic tolerance and its inferential structure in legal argumentation. (shrink)

The paper introduces the debate, hosted by the present Journal, on Schauer's book The Force of Law. It points out some starting points of the discussion and puts into question the status of contemporary jurisprudence.

Take a hypothetical sequence of human beings ordered by height from tallest to shortest. Make sure there is no more than a difference of a millimeter between each person and make sure the tallest person is clearly tall and the shortest person is clearly not tall. Now consider the following argument: P1 A person of height n is tall ; P2 For any height n, if n is tall, then n–1mm is tall ; C Therefore, a person of height n (...) = 1mm is tall. P1 and P2 are intuitively true, C is intuitively false, yet the argument is deductively valid (the conclusion follows... (shrink)

Comments on G. Maddalena and G. Tuzet, editors, I Pragmatisti Italiani. Tra Alleati e Nemeci (Italian Pragmatists. Between Enemies and Allies). Milano: Albo Versorio, 2007.