Judging Virtuously: Developing an Empathic Capacity for Perceptual Sensitivity: A Review of Amalia Amaya and Ho Hock Lai , Law, Virtue and Justice.

This essay argues that the practical reason approach to the study of social conventions (and social normativity more generally) fails to adequately account for the fluency of social action in environments that we experience as familiar. The practical reason approach, articulated most recently in Andrei Marmor’s Social Conventions: From Language to Law (2009) does help us, though not wholly adequately, to understand how we tend to react to, and experience, unfamiliar situations or unfamiliar behaviors, that is, those situations in which (...) a certain practice becomes problematic or is problematized, or where we are obliged to, or moved to, justify or deliberate. The reason why the practical reason approach is not wholly adequate when it comes to understanding unfamiliar situations or unfamiliar behaviors is that it tends to subsume the unfamiliar under the familiar, that is, it tends to negatively evaluate anything that is deemed to be not in accordance with the rules and reasons already familiar to the observer. This excludes the possibility of the observer having to transform himself or herself, and thus change what is familiar to him or her. (shrink)

This paper considers the similarities between Adam Smith's device of the impartial spectator and the use of perspectival devices in common law reasoning. The paper adopts a reading of Smith's device as one involving the exercise of imaginative sympathy by an ordinarily virtuous, and culturally and historically situated, spectator who does not have a stake in the outcome of the scene being evaluated. The point here is to show that the impartial spectator is 1) a device of common, ordinary virtue (...) – both in the sense of being located in a culture at a specific point in time, and in the sense of possessing only moderate, achievable virtues ; and 2) a device that enables a focus on a situation, which requires imaginative work, emotional engagement and careful, particularised description. Having so modelled Smith's device, the paper shows the similarities between it and the use of perspectival devices in common law reasoning, specifically here via the ‘right-thinking member of society' test in defamation law. (shrink)

This paper discusses a much-neglected aspect of Neil MacCormick's theory of legal reasoning, namely what he calls ‘consequential reasoning’. For MacCormick, consequential reasoning is both an omnipresent feature of legal reasoning in England and Scotland, as well as being a valuable one. MacCormick articulates the value of consequential reasoning by seeing it as contributing to the forward-looking requirement of formal justice, ie, of deciding the instant case on grounds that one is willing to adopt when deciding future similar cases. This (...) paper situates consequential reasoning in the overall picture of legal reasoning MacCormick develops in Legal Reasoning and Legal Theory, going on to show the evolution of his view on consequential reasoning in later work, which culminates in Rhetoric and the Rule of Law. It is argued that MacCormick's later view of consequential reasoning, ie, of a process of testing possible rulings by evaluating the acceptability or unacceptability.. (shrink)

This paper argues that the exercise of the imagination requires us 1) to attempt to describe features of a certain practice that appear, at first blush, natural and obvious; 2) to understand that that which appears natural and obvious could be otherwise; and 3) to be open to the introduction of changes to that which appears natural and obvious. Imagination, in this sense, is quite different to creativity. The latter works on the basis of the introduction of variations to settled (...) phenomena. This exercise of creativity is important, but ultimately, it contributes principally to the stability and identity of a community and reinforces its most firmly established features. Imagination, on the other hand, is more difficult, for it strikes at the very heart of that which is settled. Changes to that which is settled may not only be resisted, but may also be violently opposed. And yet, it is precisely the very ability and willingness to be open to such changes that may be of the most ethical and political significance. These differences between creativity and imagination are illustrated in the context of the practice of philosophy. (shrink)

This paper argues that concepts of legality in legal theory can be profitably understood as being underwritten by modes of spatio-temporal objectification. In the first part of the paper, a scheme of such modes is provided, and a map of jurisprudential inquiries is thereby offered. In the second part of the paper, two concepts of legality – underwritten by two different modes of spatio-temporal objectification – are analysed. The analysis shows how both concepts of legality lead to different sets of (...) prescriptive resources as to the evaluation and design of legal systems. Finally, it is argued that the response of legal theory to practical challenges within the public sphere cannot afford to be based on any one concept of legality. Rather, we need to be pluralists about concepts of legality, recognising the limitations of any one such concept – represented, in this paper, by way of spatio-temporal objectification that underwrites those concepts. A crisis in legal theory can- not be claimed on the basis of any alleged lack of correspondence between any one concept of legality and reality. On the contrary, a crisis will ensue to the extent that legal theory becomes dominated by theoretical imperial- ism, namely, by the belief that any one concept of legality is capable of capturing the world as it is, and, therefore, also capable of standing as a foundation for a prescriptive agenda. The vice of theoretical imperialism in- duces anxiety over the identity of a discipline, and leads to a quelling of the very theoretical diversity that is required for an ethical response to the spe- cific complexity of the public sphere.Resumen:En este artículo se sostiene que los conceptos de legalidad, dentro de la teoría del derecho, pueden entenderse con mayor provecho si se piensa que están determinados por modos de objetivación espacio-temporal. En la primera parte se presenta un esquema de tales modos y, de esa manera, se ofrece un mapa de las investigaciones iusfilosóficas. En la segunda parte, se analizan dos conceptos de legalidad —determinados por dos modos diferentes de objetivación espacio-temporal—. El análisis muestra cómo ambos conceptos de legalidad conducen a diferentes conjuntos de fuentes prescriptivas para la evaluación y el diseño de los sistemas jurídicos. Finalmente, se sostiene que la respuesta de la teoría del derecho a los problemas prácticos del ámbito público no puede basarse en un solo concepto de legalidad. Por el contrario, es necesario ser pluralistas sobre los conceptos de legalidad y reconocer las limitaciones de cada uno de ellos —representados, en este ensayo, por la objetivación espacio-temporal que los suscribe—. No se puede asegurar que la teoría del derecho esté en crisis sobre la base de una presunta falta de correspondencia entre algún concepto de legalidad y la realidad. Por el contrario, aquella se generará en la medida en que la teoría del derecho llegue a estar dominada por un imperialismo teórico, a saber, por la creencia de que cualquier concepto de legalidad es capaz de capturar el mundo tal como es, y, por lo tanto, que es capaz de erigirse como fundamento para una agenda prescriptiva. El vicio de un imperialismo teórico induce una inquietud sobre la identidad de una disciplina, y conduce a sofocar la diversidad teórica que se requiere para dar una respuesta ética a la complejidad concreta del ámbito público. (shrink)

This paper considers whether, and if so how, the modelling of joint action in social philosophy – principally in the work of Margaret Gilbert and Michael Bratman – might assist in understanding and applying the concept of concerted practices in European competition law. More specifically, the paper focuses on a well-known difficulty in the application of that concept, namely, distinguishing between concerted practice and rational or intelligent adaptation in oligopolistic markets. The paper argues that although Bratman's model of joint action (...) is more psychologically plausible and phenomenologically resonant, its less demanding character also makes it less useful than Gilbert's in our understanding of the legal concept of concerted practice and in dealing with the above difficulty. The paper proceeds in two parts: first, a discussion of the concept of concerted practices in European competition law; and second, a discussion of Gilbert and' Bratman's models of joint action, including a comparative assessment of their ability to provide an evidentiary target and an evidentiary platform for conceited practices. (shrink)

This paper offers a brief reply to William Morgan’s critique of my review of Andrei Marmor’s Social Conventions . Morgan’s principal critique is that I am wrong to think that the constitutive rules of games do not determine their aims and values. In particular, with regards to chess, Morgan argues that the rules of chess determine that the aim of playing chess is to win the game. I defend my position that one can play the game of chess without the (...) aim of winning - e.g. one can aim to play beautifully, and not, as Morgan suggests, only to win beautifully. More broadly, I argue for an account of games that is sensitive to the gap between playing and the game’s constitutive rules. Ultimately, the argument points to the descriptive priority for the social sciences of the concept of ‘play’ over the concept of games understood as ‘rule-governed domains’. (shrink)

The dominant theme across the three comments from Elizabeth Anker, Jonathan Crowe, and Ben Golder, is a plea for more engagement with the ethics and politics of adjudication. The commentators argue...

This paper offers a sympathetically critical discussion of one of the central features of Neil MacCormick’s last book, Practical Reason in Law and Morality (2008), namely, what he called ‘the Smithian Categorical Imperative’ (SCI). The SCI is presented by MacCormick as a synthesis of the best of Immanuel Kant and Adam Smith’s contributions to moral philosophy. The paper proceeds in three parts: the first two are dedicated to articulating and evaluating MacCormick’s understanding of Kant and Smith. The focus in these (...) two parts is on the following concepts: autonomy and universality in the case of Kant, and imagination and sympathy in the case of Smith. The third part then discusses the formulation and two applications of the SCI, the first of these relates to the practice of lying and breaking promises, and the second to the conjoined twins’ case. It is argued that MacCormick’s rapprochement between Kant and Smith in the form of the SCI is a genuinely important and original contribution to moral philosophy, and has important implications for theories of legal judgement. Nevertheless, the paper also considers whether, by modifying MacCormick’s interpretation of Kant and Smith (and especially the latter), we may be able to further extend MacCormick’s characteristically generous capacity to tread a middle path between otherwise antagonistic theoretical traditions. (shrink)