Demystifying Legal Reasoning defends the proposition that there are no special forms of reasoning peculiar to law. Legal decision makers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. This book addresses common law reasoning when prior judicial decisions determine the law, and interpretation of texts. In both areas, the popular view that legal decision makers practise special forms of reasoning is false.

Proposing and consenting to sex are things that ordinary people manage to do all the time, yet legal regulation of sex seems to be an intractable problem. No one is satisfied with rape law, but no one knows quite what to do about it.

Precedents are judicial decisions that form the bases of further judicial decisions by constraining those decisions. There are two aspects to the constraints exerted by precedent decisions: the scope of the constraint and the strength of the constraint. The scope refers to the range of decisions that are affected by the precedent. The strength refers to the conditions under which a court can escape being bound by the precedent. Models of precedential scope are discussed and evaluated, and the question of (...) strength is analyzed.Resumen:Los precedentes son decisiones judiciales que constituyen la base de decisiones judiciales posteriores, al vincularlas. Hay dos aspectos de la vinculación ejercida por las decisiones de precedente: el alcance de la vinculación y la fuerza de la vinculación. El alcance se refiere al rango de decisiones que se ven afectadas por el precedente. La fuerza se refiere a las condiciones bajo las cuales un tribunal obligado por el precedente puede ignorarlo. En este artículo se discuten y evalúan algunos modelos del alcance del precedente y se analiza la cuestión de su fuerza. (shrink)

Actors may be called on to judge their reasons for action at two different points in time: once when they form an intention to act in the future and again at the time of action. At the time the actor forms her intention, her perspective is a general one, encompassing a range of possible circumstances that cannot be narrowed or fully specified in advance of action. At time of action, the actor's perspective is particularized, with more evidence available about reasons (...) for action. This difference in perspective presents a dilemma for rational agents. In many contexts, reliable advance planning has great value. It allows for intra-personal and interpersonal coordination and minimizes bias in favor of salient or emotionally charged facts. At the time of action, additional evidence about the context of the act clarifies, or appears to clarify, current reasons for action. I describe this dilemma in two contexts: rule-following and promissory commitment. In each case there may be significant practical reasons for agents to stand by their original intentions, treating them as exclusionary reasons for action. Yet, if the agent revisits her intentions at the time of action, her reasons for action may support, or appear to support, a change in course. I begin by examining theories of practical rationality that extend rationality over time and thus permit agents to act on their initial intentions. Understood in this way, practical rationality may require agents to follow rules or honor promises without further consideration of reasons for action. I argue, however, that on a plausible understanding of epistemic rationality and epistemic responsibility to respond to evidence, acting without reflection may be epistemically irrational. If this is correct, then the dilemma of general and particular decisionmaking persists, and affects important aspects of human life. We manage only by being imperfectly irrational. (shrink)

One key premise in Shapiro's book Legality is that rationality requires those who have accepted the master plan for a system of law to obey the system's rules. In this paper, I question this premise, arguing instead that although it may be rational for agents to commit to follow the system's rule in all (or most) cases to which they apply, it is not rational for agents to follow the rules in fact when the rules appear to require the wrong (...) outcomes in particular cases. My argument is based largely on epistemic responsibility, which I view as an element of rationality. (shrink)

Liberalism is a wonderful theory, but its adherents have a difficult time explaining why. In his Tanner Lecture entitledFoundations of Liberal Equality, Ronald Dworkin proposes to defend liberalism in a new way. Dworkin is not content to view liberalism as a political compromise in which people set aside their personal convictions in the interest of social peace. Instead, he undertakes to make liberal political theory “continuous” with personal ethics, by describing an ethical position that endorses liberalism as a matter of (...) conviction. (shrink)

This essay examines the ambition to taxonomize law and the different methods a legal taxonomer might employ. Three possibilities emerge. The first is a formal taxonomy that classifies legal materials according to rules of order and clarity. Formal taxonomy is primarily conventional and has no normative implications for judicial decision-making. The second possibility is a function-based taxonomy that classifies laws according to their social functions. Function-based taxonomy can influence legal decision-making indirectly, as a gatekeeping mechanism, but it does not provide (...) decisional standards for courts. Its objective is to assist in analysis and criticism of law by providing an overview of the body of legal doctrine. The third possibility is a reason-based taxonomy that classifies legal rules and decisions according to the moral principles or “legal principles” thought to justify them. Reason-based taxonomy of this type offers courts a set of high-level decisional rules drawn from legal data. Its objective is to guide courts in deciding new cases and evaluating precedents. A predominantly formal taxonomy facilitates legal analysis and communication. A functional taxonomy can assist those who make and apply law by providing a purposive overview of the field. Reason-based taxonomy may be useful to lawmakers but is unhelpful when offered as a guide to adjudication of disputes. (shrink)

Judicial review of statutes on constitutional grounds is affected by a cluster of doctrinal practices that are generally accepted, but not very well explained, by the courts and not entirely consistent with each other. Courts usually judge statutes rather than as written; 1 they favor of valid applications of statutes from invalid or possibly invalid applications when possible; 2 and they interpret statutes in ways that avoid constitutional difficulty. 3 These overlapping practices presumably are intended to preserve legislation, and hence (...) are associated with a modest conception of the role of courts in government. Yet they are not always modest in operation. 4. (shrink)

Emily Brady provides a systematic account of aesthetics in relation to the natural environment, offering a critical understanding of what aesthetic appreciation ...

Susan Sherwin ist eine kanadische Philosophin und Wegbereiterin der feministischen Ethik. Bis zu ihrer Emeritierung war sie lange Zeit Professorin an der Dalhousie University in Halifax, Kanada. In ihrem Text „Foundations, Frameworks, Lenses: The Role of Theories in Bioethics“ von 1999 plädiert sie für eine kritische Reflexion gängiger Metaphern in der Bioethik.

For early modern metaphysician Anne Conway, the world comprises creatures. In some sense, Conway is a monist about creatures: all creatures are one. Yet, as Jessica Gordon-Roth has astutely pointed out, that monism can be understood in very different ways. One might read Conway as an ‘existence pluralist’: creatures are all composed of the same type of substance, but many substances exist. Alternatively, one might read Conway as an ‘existence monist’: there is only one created substance. Gordon-Roth has done the (...) scholarship a great favor by illuminating these issues in Conway. However, this article takes issue with Gordon-Roth's further view that Conway ‘oscillates’ between the extremes of existence pluralism and monism. In its place, I argue we should read Conway as a priority monist: the whole of creation is ontologically prior to its parts. (shrink)

Viewed this way, the texts yield striking examples of language and notation that are irreducibly ambiguous and productive because they are ambiguous.

There is significant evidence that the health needs of women and minorities have been neglected by a medical research community whose agendas and protocols tend to focus on more advantaged segments of society. In response, the National Institutes of Health and Food and Drug Administration in the United States have recently issued new policies aimed at increasing the utilization of women in clinical studies. As well, the U.S. Congress passed the NIH Revitalization Act of 1993, which specifically mandates increased inclusion (...) of women and racial and ethnic groups in clinical studies. On the face of it, such gender and race-specific policies would appear to be morally problematic because traditionally ethics opposes the use of sex or race as legitimate criteria for distributions of benefits or burdens in social policies. Hence, these policies pose some significant moral questions. Feminist ethics provides us with a framework for evaluating such policies because of its readiness to recognize that socially and politically significant factors such as sex and race are morally relevant in setting public policy. Of course, feminist ethics does not simply endorse all appeals to sex and race but only the policies in which attention to such factors will contribute to social justice. In this essay, I Identify some of the Important ethical questions that a feminist ethics perspective raises about research policies devised to promote the Inclusion of women in clinical studies. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Hypatia 16.3 (2001) 172-176 [Access article in PDF] Book Review Diagnosis: Difference: The Moral Authority of Medicine Diagnosis: Difference: The Moral Authority of Medicine. By Abby L. Wilkerson. Ithaca: Cornell University Press, 1998. In this compact volume, Abby Wilkerson makes several important contributions to the burgeoning literature of feminist (bio)ethics by providing substantive arguments in support of some of the key intuitive beliefs that are central to much feminist (...) bioethics thinking. Most centrally, she carefully fleshes out a feminist case for re-framing traditional bioethics approaches to the relation between health and justice. Particularly valuable is her richly detailed argument establishing the importance of bringing to the realm of health and health care Iris Marion Young's (1990) important insight that justice involves far more than questions of distribution.At the same time, Wilkerson demonstrates another major feminist tenet: that ethics and epistemology are intimately related. This connection is developed [End Page 172] through a second major theme in which she systematically tracks medicine's tendency to extend its accepted epistemic authority over physical ailments into a general authority over many other aspects of life. She documents examples of medicine's success in leveraging its scientific knowledge about certain aspects of the body into a broader ideological vision through which it claims epistemic authority in the personal and moral realm. By making explicit the gaps between medical knowledge and moral knowledge, she is able to challenge the moral authority and social power that are now granted to medical experts.While these arguments are important, they are not the whole story of the book, for its message is as much about process in bioethics as it is about conclusions. Wilkerson insists that the specific perspective of the theorist affects her/his reasoning. She demonstrates the importance of this fact by using her own distinct position as a bisexual woman to make visible the implicit acceptance and perpetuation of several ideological norms by those in dominant positions in both medicine and bioethics. The central method of the book is what she calls "material-semiotic." It involves the assumption that all human experience is mediated by culture, and the body (specifically the medicalized body) must be recognized as a political site subject to a variety of social values. We must, therefore, attend to the cultural meanings of health and illness and explore the ways that society labels and responds to these conditions. This requires investigation of the specific bodily (material) effects of these meanings in both individual and social experience.The book begins with the epistemological frame of the argument in which Wilkerson claims that medicine is deeply infected by the values and biases of the dominant culture, including its tendencies towards sexist, racist, classist, homophobic, and ablist attitudes. She explores ways in which medical theory and practice stigmatize bodily experiences common to women (in gynecology, obstetrics, and the treatment of victims of sexual or domestic violence). Medicalizing so many aspects of women's experience has the effect of obscuring women's subjective experiences and replacing them with medicine's normative perspectives of appropriate psychological norms. Moreover, the norm of femaleness promoted is a heterosexual, middle class, white variety such that other forms of social difference (e.g., non-white, non-heterosexual) must then also be medicalized and stigmatized; that is, the medical model requires explanations of difference that render pathological most variations on the privileged norm. Hence, alternative sexualities, like differences in class, abilities, race, and gender are interpreted through a medical lens that is thoroughly value-laden. In such ways, the epistemological authority granted to medicine is conflated into an unjustified form of moral authority. Although similar biases are common to every powerful social institution in the United States, they are especially pernicious within medicine because of the enormous influence it exerts in shaping knowledge about the nature of difference between social [End Page 173] groups. This immense social power may be directed towards reducing inequalities and promoting social justice, but, all too often, it is used to convey beliefs and norms that serve the interests of the privileged.Wilkerson's criticism is not reserved... (shrink)

The paper investigates the significance of the question of the fetus's status as a person for resolving the moral issues of abortion. It considers and evaluates several proposed solutions to this question. It also attempts to explain how different questions about the permissibility of abortion are appropriate to discussions at different levels of decision-making: the pregnant woman, the health professional, and the social policy level. The author's own conclusions to all these questions are offered along with other popular views.

Quantum mechanics is an extraordinarily successful scientific theory. But more than 100 years after it was first introduced, the interpretation of the theory remains controversial. This Element introduces some of the most puzzling questions at the foundations of quantum mechanics and provides an up-to-date and forward-looking survey of the most prominent ways in which physicists and philosophers of physics have attempted to resolve them. Topics covered include nonlocality, contextuality, the reality of the wavefunction and the measurement problem. The discussion is (...) supplemented with descriptions of some of the most important mathematical results from recent work in quantum foundations, including Bell's theorem, the Kochen-Specker theorem and the PBR theorem. (shrink)

"A collection of essays in feminist philosophy.

The laws of nature have come a long way since the time of Newton: quantum mechanics and relativity have given us good reasons to take seriously the possibility of laws which may be non-local, atemporal, ‘all-at-once,’ retrocausal, or in some other way not well-suited to the standard dynamical time evolution paradigm. Laws of this kind can be accommodated within a Humean approach to lawhood, but many extant non-Humean approaches face significant challenges when we try to apply them to laws outside (...) the time evolution picture. Thus for proponents of non-Humean approaches to lawhood there is a clear need for a novel non-Humean account which is capable of accommodating these sorts of laws. In this paper we propose such an account, characterizing lawhood in terms of constraints, which are understood as a form of modal structure. We demonstrate that our proposed realist account can indeed accommodate a large variety of laws outside the time evolution paradigm, and describe some possible applications to important philosophical problems. (shrink)

In The Sublime in Modern Philosophy: Aesthetics, Ethics, and Nature, Emily Brady takes a fresh look at the sublime and shows why it endures as a meaningful concept in contemporary philosophy. In a reassessment of historical approaches, the first part of the book identifies the scope and value of the sublime in eighteenth-century philosophy, nineteenth-century philosophy and Romanticism, and early wilderness aesthetics. The second part examines the sublime's contemporary significance through its relationship to the arts; its position with respect (...) to other aesthetic categories involving mixed or negative emotions, such as tragedy; and its place in environmental aesthetics and ethics. Far from being an outmoded concept, Brady argues that the sublime is a distinctive aesthetic category which reveals an important, if sometimes challenging, aesthetic-moral relationship with the natural world. (shrink)

Standpoint theorists have long been clear that marginalization does not make better understanding a given. They have been less clear, though, that social dominance does not make ignorance a given. Indeed, many standpoint theorists have implicitly committed themselves to what I call the strong epistemic disadvantage thesis. According to this thesis, there are strong, substantive limits on what the socially dominant can know about oppression that they do not personally experience. I argue that this thesis is not just implausible but (...) politically pernicious; it is an excuse for ignorance and silence that stifles our ability to address many injustices. Moreover, I argue that if we are to avoid lending support to the SEDT while working within a standpoint theory framework, we must hold that the socially dominant can achieve marginalized standpoints. So, we must hold that men can achieve feminist standpoints, that white women (and men) can achieve black feminist standpoints, and so on. (shrink)

Relational quantum mechanics (RQM) is an interpretation of quantum mechanics based on the idea that quantum states do not describe an absolute property of a system but rather a relationship between systems. There have recently been some criticisms of RQM pertaining to issues around intersubjectivity. In this article, we show how RQM can address these criticisms by adding a new postulate which requires that all of the information possessed by a certain observer is stored in physical variables of that observer (...) and thus is accessible by measurement to other observers. This makes it possible for observers to reach intersubjective agreement about quantum events that have occurred in the past. We suggest a possible ontology for a version of RQM employing this postulate; this ontology upholds the principle that quantum states are always relational, but it also postulates a set of quantum events that are not strictly relational. We show that the new postulate helps address the preferred basis problem in RQM. (shrink)

There is a long tradition, in the history and philosophy of science, of studying Kant’s philosophy of mathematics, but recently philosophers have begun to examine the way in which Kant’s reflections on mathematics play a role in his philosophy more generally, and in its development. For example, in the Critique of Pure Reason , Kant outlines the method of philosophy in general by contrasting it with the method of mathematics; in the Critique of Practical Reason , Kant compares the Formula (...) of Universal Law, central to his theory of moral judgement, to a mathematical postulate; in the Critique of Judgement , where he considers aesthetic judgment, Kant distinguishes the mathematical sublime from the dynamical sublime. This last point rests on the distinction that shapes the Transcendental Analytic of Concepts at the heart of Kant’s Critical philosophy, that between the mathematical and the dynamical categories. These examples make it clear that Kant's transcendental philosophy is strongly influenced by the importance and special status of mathematics. The contributions to this book explore this theme of the centrality of mathematics to Kant’s philosophy as a whole. This book was originally published as a special issue of the Canadian Journal of Philosophy. (shrink)

Sex selection technologies have become increasingly prevalent and accessible. We can find them advertised widely across the Internet and discussed in the popular media—an entry for “sex selection services” on Google generated 859,000 sites in April 2004. The available services fall into three main types: preconception sperm sorting followed either by intrauterine insemination of selected sperm or by in vitro fertilization ; preimplantation genetic diagnosis, by which embryos created by IVF are tested and only those of the desired sex are (...) transferred to the woman's uterus; and prenatal testing of fetuses through ultrasound or chromosomal analysis, followed by selective abortion of fetuses detected to be of the undesired sex. (shrink)

Dementia patients in the moderate-late stage of the disease can, and often do, express different preferences than they did at the onset of their condition. The received view in the philosophical literature argues that advance directives which prioritize the patient’s preferences at onset ought to be given decisive moral weight in medical decision-making. Clinical practice, on the other hand, favors giving moral weight to the preferences expressed by dementia patients after onset. The purpose of this article is to show that (...) the received view in the philosophical literature is inadequate and is out of touch with real clinical practice. I argue that having dementia is a cognitive transformative experience and that preference changes which result from this are legitimate and ought to be given moral weight in medical decision-making. This argument ought to encourage us to reduce our confidence in the moral weight of advance directives for dementia patients. (shrink)

Both Stoic and Buddhist ethics are deeply concerned with the ethical dangers of attachments. Three dangers stand out: (1) the destructive consequences of overwhelming emotionality, brought on by attachment, both for oneself and others, (2) the dangers to one's agency posed by strongly held, but ultimately unstable, attachments, and (3) the threat to virtuous emotional engagement with others caused by one's own attachment to them. The first two kinds of moral dangers have informed Stoic models of detachment (see Wong (2006). (...) In this paper I draw on Buddhist texts to present a model of detachment that responds primarily to the third moral danger of attachment, the danger of not loving well. (shrink)

Standpoint epistemology has been linked with increasing calls for deference to the socially marginalized. As we understand it, deference involves recognizing someone else as better positioned than we are, either to investigate or to answer some question, and then accepting their judgment as our own. We connect contemporary calls for deference to old objections that standpoint epistemology wrongly reifies differences between groups. We also argue that while deferential epistemic norms present themselves as a solution to longstanding injustices, habitual deference prevents (...) the socially dominant from developing for themselves the skills necessary to expand their capacity for empathy, to deftly probe for evidence, and to ask critical questions. Consequently, we argue that standpoint epistemology must be understood as calling for inclusion, not deference. (shrink)

There is an undeniable tendency to dismiss women’s sexual assault allegations out of hand. However, this tendency is not monolithic—allegations that black men have raped white women are often met with deadly seriousness. I argue that contemporary rape culture is characterized by the interplay between rape myths that minimize rape, and myths that catastrophize rape. Together, these two sets of rape myths distort the epistemic resources that people use when assessing rape allegations. These distortions result in the unjust exoneration of (...) people we cannot conceive of as monstrous, while making it too easy to believe that some marginalized people could be rapists. I also argue that rape myths enable a novel kind of epistemic injustice. This injustice concerns how our assessments of trustworthiness and our assessments of plausibility interact. I argue that rape myths can result in runaway credibility deflations that can explain both why people fail to believe most women, and also why people may unjustly believe false allegations that white women have been raped by black men. (shrink)

East Asians and Westerners differ in various aspects of perception and cognition. For example, visual memory for East Asians is believed to be more influenced by the contextual aspects of a scene than is the case for Westerners (Masuda & Nisbett, 2001). There are also differences in visual search: for Westerners, search for a long line among short is faster than for short among long, whereas this difference does not appear to hold for East Asians (Ueda et al., submitted). However, (...) it is unclear how these group-level differences originate. To investigate the extent to which they depend upon environment, we tested visual search and visual memory in East Asian immigrants who had lived in Canada for different amounts of time. Recent immigrants were found to exhibit no search asymmetry, unlike Westerners who had spent their lives in Canada. However, immigrants who had lived in Canada for more than two years showed performance comparable to that of Westerners. These differences could not be explained by the general analytic/holistic processing distinction believed to differentiate Westerners and East Asians, since all observers showed a strong holistic tendency for visual recognition. Results instead support the suggestion that exposure to a new environment can significantly affect the particular processes used to perceive a given stimulus. (shrink)

What kinds of issues does the global crisis of climate change present to aesthetics, and how will they challenge the field to respond? This paper argues that a new research agenda is needed for aesthetics with respect to global climate change (GCC) and outlines a set of foundational issues which are especially pressing: (1) attention to environments that have been neglected by philosophers, for example, the cryosphere and aerosphere; (2) negative aesthetics of environment, in order to grasp aesthetic experiences, meanings, (...) and dis/values in light of the catastrophic effects of GCC; (3) bringing intergenerational thinking into aesthetics through concepts of temporality and 'future aesthetics' (4) understanding the relationship between aesthetic and ethical values as they arise in regard to GCC. (shrink)