Bd. 1. Leben, Denken und Wirken, 1883-1932 -- Bd. 2. Widerstand, Verfolgung, Emigration, 1933-1939.

In ‘(Really) Defending Exclusionary Reasons’, Monti seeks to defend Raz’ notion of exclusionary reasons from the attack made by Daniel Whiting. Monti agrees with Whiting that exclusionary reasons cannot motivate and so suggests that they operate by guiding rather than motivating. However, Monti’s account of guiding omits the key feature that they can guide even when one’s action is the opposite to what the exclusionary reason seems to recommend. An amended account of what it is to be guided by exclusionary (...) reasons is needed to give the Razian account the explanatory power it is due. (shrink)

Joseph Raz argues that legal authority includes a claim by the law to replace subjects’ contrary reasons. I reply that this cannot be squared with the existence of choice-of-evils defenses to criminal prosecutions, nor with the view that the law has gaps (which Raz shares). If the function of authority is to get individuals to comply better with reason than they would do if left to their own devices, it would not make sense for law to claim both to pre-empt (...) our contrary reasons and to leave open spaces or catch-all exceptions which we must use our own devices to fill. (shrink)

1. T. Der hellenische Staat.--2. T. Der hellenistische Staat.

We live in strange, frustrating and paradoxical times. Like other trends on the left, Marxism is immobilised by theoretical confusion and practical ineffectiveness just when a relentless state-led war against the working class is nearing the end of its second decade, the greatest transfer of wealth from the poor to the rich in human history has reasserted the centrality of class with a vengeance, the international capitalist financial system teeters on the edge of collapse, whole countries are bankrupt, and hundreds (...) of millions of people are undergoing absolute immiseration and devastating attacks on their standard of living. The gap between what the objective situation demands and what the Left has to offer is so profound that public affairs has become little more than a debate between a powerful right and an eviscerated ‘centre’ – all this at a time of unprecedented crisis and opportunity. Indeed, we do not even seem to know what to talk about. Reminders of how theoretical blind alleys and historic openings have often gone hand in hand may help us orient ourselves to broad trends, but they only underline how essential it is that we begin addressing the profoundly important questions of contemporary life. Until we do, we should not be surprised that people put their trust in angels, consult soothsayers, and are not interested in what we have to say. (shrink)

This book presents an innovative reading of Daoist philosophy that highlights the critical and therapeutic functions of satire and humor. Moeller and D'Ambrosio show how the Zhuangzi expounds the Daoist art of "genuine pretending" the paradoxical skill of enacting social roles without submitting to them or letting them define one's identity.

I LAW AND NATURE i. The "Pure" Theory The Pure Theory of Law is a theory of positive law. It is a theory of positive law in general, not of a specific legal ...

What is the nature of law and what is the best way to discover it? This book argues that law is best understood in terms of the social functions it performs wherever it is found in human society. In order to support this claim, law is explained as a kind of institution and as a kind of artefact. To say that it is an institution is to say that it is designed for creating and conferring special statuses to people so (...) as to alter their rights and responsibilities toward each other. To say that it is an artefact is to say that it is a tool of human creation that is designed to signal its usability to people who interact with it. This picture of law's nature is marshalled to critique theories of law that see it mainly as a product of reason or morality, understanding those theories via their conceptions of law's function. It is also used to argue against those legal positivists who see law's functions as relatively minor aspects of its nature. -/- This method of conceptualizing law's nature helps us to explain how the law, understood as social facts, can make normative demands upon us. It also recommends a methodology for understanding law that combines elements of conceptual analysis with empirical research for uncovering the purposes to which diverse peoples put their legal activities. (shrink)

The primary aim of this chapter is to show that several missteps made by others in in their thinking about law as an artefact are due to misconceptions about the role of intentions in understanding law as an artefact. I first briefly recap my own contention that law is a genre of institutionalized abstract artefacts (put forth in The Functions of Law (OUP 2016) and subsequent papers), mostly following Searle’s understanding of institutions and Thomasson’s understanding of public artefacts. I highlight (...) the central place that this theory affords law’s functions, without requiring the theorist to say that possession or performance of the function is either necessary or sufficient for inclusion in the class of law. Some of the most common misunderstandings are exemplified in Brian Leiter’s paper ‘Legal Positivism about the Artifact Law’. He thinks that holding an intentionalist view of artefacts commits the theorist to privileging drafters’ intentions when interpreting law. (It doesn’t.) He also has confusions about the differences between artefact tokens and artefact types leading him to a problematically broad understanding of artefacts. Another problem can be seen in thinking that functional understandings of artefacts are vulnerable to the same problems that arise in functional explanations for biological systems. I go on to consider the work of Luka Burazin and Corrado Roversi, addressing worries that making intentionality central to artefacts implies too much conscious thought is required to make one, noting that several theories of intentionality do not require conscious thought in the execution of intentional action. While those who think a central place for intentionality threatens to leave us unable to explain customary law, this can be dealt with by noting the important distinction between customary rules and customary laws (where the latter requires a decision to enlist public aid in redressing violations). I claim that authors’ intentions are communicated requests for the artefacts’ audiences to see the artefacts as members of their putative kinds. Finally, I address the question of whether or not legal systems are themselves artefacts and institutions, given that they may or may not have been intentionally created. An early lawgiver might have created a legal system by accident in the process of handing down the first laws. I raise the possibility that we might want to impute intentionality to necessary by-products of artefact creation, seeing those by-products as artefacts as well. (shrink)

Ludwik Fleck, Edmund Husserl : on the historicity of scientific knowledge -- Gaston Bachelard : the concept of "phenomenotechnique" -- Georges Canguilhem : epistemological history -- Pisum : Carl Correns's experiments on Xenia, 1896-99 -- Eudorina : Max Hartmann's experiments on biological regulation in protozoa, 1914-21 -- Ephestia : Alfred Kähn's experimental design for a developmental physiological -- Genetics, 1924-45 -- Tobacco mosaic virus : virus research at the Kaiser Wilhelm Institutes for Biochemistry and Biology, 1937-45 -- The concept of (...) the gene : molecular biological perspectives -- The liquid scintillation counter : traces of radioactivity -- The concept of information : the writings of François Jacob -- Intersections -- Preparations -- The economy of the scribble. (shrink)

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. 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)

Abstract: We sometimes say our moral claims are "objectively true," or are "right, even if nobody believes it." These additional claims are often taken to be staking out metaethical positions, representative of a certain kind of theorizing about morality that "steps outside" the practice in order to comment on its status. Ronald Dworkin has argued that skepticism about these claims so understood is not tenable because it is impossible to step outside such practices. I show that externally skeptical metaethical theory (...) can withstand his attacks, thereby defending the possibility of this kind of metatheoretical method and showing that the additional objectivity claims still make sense as external claims. Four interpretations of the additional objectivity claims can still be understood externally: as secondary properties, as arguing for some form of causal correspondence, as explaining error, and under Blackburn's expressivism. In the end, Dworkin's argument can be turned against itself. (shrink)

"Social ontology, conventionally defined, is not primarily about us. Rather, it is about the social world (or worlds), about social reality (or realities), or about the domain(s) of social facts. Social ontology aims at providing an inventory of the basic kinds of entities that make up the social world(s) - items such as norms, institutions, social practices, status positions, power structures, and artifacts. It is the study of the basic kinds of properties of these entities, and of how the social (...) world exists, how it is constituted, or constructed"--. (shrink)

I argue that there is methodological space for a functional explanation of the nature of law that does not commit the theorist to a view about the value of that function for society, nor whether law is the best means of accomplishing it. A functional explanation will nonetheless provide a conceptual framework for a better understanding of the nature of law. First I examine the proper role for function in a theory of law and then argue for the possibility of (...) a neutral functional theory, addressing issues raised by Leslie Green, Stephen Perry, Michael Moore and John Finnis. (shrink)

I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating the concept of law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria generally offered for essential contestation. I then buttress this claim with the additional explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it is (...) useful to gain a greater understanding of uses of the concept to which it is applied (adducing criteria for making such judgments of usefulness). With that in mind, I then show that applying the appellation of essential contestation to the concept of law does not helpfully illuminate the most general concept of law (usually of most interest to legal philosophers) and therefore it should not be used, while allowing that it might be more useful for the related concept of the rule of law. (shrink)

This chapter provides an explanation of precedent as a kind of artefact, in keeping with broader accounts of law that do so, specifically the author’s account of law as a genre of institutionalized abstract artefact. The chapter develops its explanation by responding to an argument by Dan Priel against seeing the common law as an artefact when understood to be a form of custom. The chapter shows that customs can themselves be artefacts but also that the precedential elements of common (...) law are not necessarily quite as customary as sometimes considered, showing that the common law built from precedents fits within a distributed design model of artefacts and that stare decisis has a wider systemic function of upholding certain rule of law principles. It ends with some considerations about the institutional nature of precedents, specifically that judicial decisions are most often both applications and developments of legal norms, but also determinations of legal validity. (shrink)

I have argued that law is a genre of institutionalized abstract artifact, meaning that laws are purposive products of human creation designed to signal norms of behavior with respect to them. Its institutional nature is seen in the fact that it is a system of artificial statuses that convey deontic powers to status holders understood in their institutional roles. Following Searle in explaining institutions, however, is also to see the institution as the 'continuing possibility of a practice.' Hence there is (...) no tension in seeing law as both a practice and a genre of artifact. (shrink)

This volume provides the first English translation of Hans Kelsen's and Carl Schmitt's influential Weimar-era debate on constitutional guardianship and the legitimacy of constitutional review. It includes Kelsen's seminal piece, 'The Nature and Development of Constitutional Adjudication', as well as key extracts from the 'Guardian of the Constitution' which present Schmitt's argument against constitutional review. Also included are Kelsen's review of Schmitt's 'Guardian of the Constitution', as well as some further material by Kelsen and Schmitt on presidential dictatorship under (...) Article 48 of the Weimar Constitution. These texts show Kelsen and Schmitt responding to one another, in the context of a debate focused on a concrete constitutional crisis, thus allowing the reader to assess the plausibility of Kelsen's and Schmitt's legal and constitutional theories. (shrink)

_Wittgenstein_ presents a concise, comprehensive, and systematic treatment of Ludwig Wittgenstein's thought from his early work, _Tractatus Logico-Philosophicus,_ to the posthumous publication of _On Certainty_, notes written just prior to his death. A substantial scholarly addition to our understanding of one of the most original and influential thinkers of the twentieth century, by renowned Wittgenstein scholar, Hans Sluga Proposes an original new interpretation of Wittgenstein's work Written to also be accessible to readers unfamiliar with Wittgenstein's thought Includes discussion of (...) the social and political background and contemporary relevance of Wittgenstein's thoughts. (shrink)

Loneliness in medicine is a serious problem not just for patients, for whom illness is intrinsically isolating, but also for physicians in the contemporary condition of medicine. We explore this problem by investigating the ideal physician-patient relationship, whose analogy with friendship has held enduring normative appeal. Drawing from Talbot Brewer and Nir Ben-Moshe, we argue that this appeal lies in a dynamic form of companionship incompatible with static models of friendship-like physician-patient relationships: a mutual refinement of embodied virtue that draws (...) both persons together. The ideal physician-patient relationship has a dialectical character that fosters each member's improvement of phenomenologically recognizing and embodying moral virtues. A key component of this dynamic is a commitment to the common goal of the patient's health, realized through joint interactivities and conversations over time. The physician's presence to the patient's suffering—understood best as an alienating phenomenological condition for the patient—orients and discloses possibilities for virtuous caregiving by structuring the meanings of the goals, conversations, and joint narrative constitutive of their relationship. Presence to suffering, paradoxically, is perhaps an important prerequisite for this dynamic partnership. These activities dialectically build an interpretive horizon of understanding through which moral goods and character refinement—in and for the other—may become revealed for both persons in their shared being-in-the-world. This analysis of suffering, mood, and revealing of (possible) moral goods has implications for addressing the modern problem of loneliness for patients and physicians, who are increasingly inhibited from building flourishing relationships with each other. (shrink)

This paper discusses possible correspondences between neuroscientific findings and phenomenologically informed methodologies in the investigation of kinesthetic empathy in watching dance. Interest in phenomenology has recently increased in cognitive science (Gallagher and Zahavi 2008 ) and dance scholars have recently contributed important new insights into the use of phenomenology in dance studies (e.g. Legrand and Ravn (Phenomenology and the Cognitive Sciences 8(3):389–408, 2009 ); Parviainen (Dance Research Journal 34(1):11–26, 2002 ); Rothfield (Topoi 24:43–53, 2005 )). In vision research, coherent neural (...) mechanisms for perceptual phenomena were uncovered, thus supporting correlation of phenomenology and neurophysiology Spillmann (Vision Research 49(12):1507–1521, 2009 ). Correspondingly, correlating subjects’ neurophysiological data with qualitative responses has been proposed as a means to research the human brain in the study of consciousness (Gallagher and Zahavi 2008 ), with similar issues in clinical psychology Mishara (Current Opinion in Psychiatry 20(6):559–569, 2007 ) and biology Kosslyn et al. (American Psychologist 57:341–351, 2002 ). Yet the relationship between neuroscience and qualitative research informed by phenomenology remains problematic. How qualitative research normally handles subjective experiences is difficult to reconcile with standard statistical analysis of objective data. Recent technological developments in cognitive neuroscience have inspired a number of researchers to use more naturalistic stimuli, outside the laboratory environment, such as dance, thereby perhaps helping to open up the cognitive sciences to more phenomenologically informed approaches. A question central to our research, addressed here, is how the phenomenal experiences of a dance audience member, as accessed by qualitative research methods, can be related to underlying neurophysiological events. We outline below some methodological challenges encountered in relating audiences’ first-person accounts of watching live dance performance to neurophysiological evidence of their experiences. (shrink)