After describing the disorder of psychopathy, I examine the theories and the evidence concerning the psychopaths’ deficient moral capacities. I first examine whether or not psychopaths can pass tests of moral knowledge. Most of the evidence suggests that they can. If there is a lack of moral understanding, then it has to be due to an incapacity that affects not their declarative knowledge of moral norms, but their deeper understanding of them. I then examine two suggestions: it is their deficient (...) practical reason or their stunted emotions that are at fault. The evidence supports both explanations. I conclude with an overview of the debate concerning whether they are morally or legally responsible for their actions. (shrink)

Que chez J. L. Austin le langage soit action n’est pas nouveau. Il est toutefois important de comprendre – et cela est plus radical – comment l’introduction de l’idée des actes de langage transforme non seulement la conception du langage, mais la conception de l’action et fragilise conjointement la signification, et l’action. Chez Austin, c’est le triplet « acte de langage »/« échec »/« excuse » qui est central – j’essaierai à partir de cette articulation de montrer en quel sens, (...) chez Austin, la dimension sociale est cruciale. Dans ce sens, ce travail, bien qu’il ne constitue pas une étude historique en ethnométhodologie, est sans doute guidé par l’idée de l’enquête sociologique héritée de Harold Garfinkel, où l’ordre social n’est pas une réalité indépendante, et où l’on cherche à élucider la fabrication constante de l’ordre social, tel qu’il est reconnaissable, intelligible, analysable et rapportable par les participants. (shrink)

This paper traces the intellectual trajectories of the first stand-alone theories of action, understood as both axiologically neutral and quasi-scientific from a methodological point of view. I argue that the rise of action theory of this kind corresponds to a particular moment of dissatisfaction within Western thought, and as such, it tells us far more about the history of philosophy than the subject itself. I conclude by explaining why subsequent failures to provide an acceptable theory of action are not accidental. (...) On the contrary, such failures owe themselves probably to the fact that formulating a theory of action is neither propitious nor useful. Thus, the most valuable lesson we can learn from philosophical desires for a theory of action is that we should take co-action as the starting point in our normative investigations, rather than positing action simpliciter as a problem to solve. That is, we should move away from propounding a theory of action, and instead focus on a paradigm shift, whereby we move away from a representational, towards a co-actional, model of action. (shrink)

This paper reflects on the problem of endowing Artificial Intelligence with legal subjectivity, especially with regard to civil law. It is necessary to reject the myth that the criteria of legal subjectivity are sentience and reason. Arguing that AI may have potential legal subjectivity based on an analogy to animals or juristic persons suggests the existence of a single hierarchy or sequence of entities, organized according to their degree of similarity to human beings; also, that the place of an entity (...) in this hierarchy determines the scope of subjectivity attributed to it. Rather, it is participation or presence in social life, whatever the role, that is the true criterion of subjectivity. In addition, it is clear that even if AI is not currently a significant participant in social life, it will be in the nearest future. Despite the potential dangers associated with endowing AI with some kind of subjectivity, such a course is inescapable, and should be considered sooner rather than later. (shrink)

In this paper, I show that, in a number of publications in the early 1950s, Margaret Macdonald argues that art does not admit of definition, that art is—in the sense associated with Wittgenstein—a family resemblance concept, and that definitions of art are best understood as confused or poorly expressed contributions to art criticism. This package of views is most typically associated with a famous paper by Morris Weitz from 1956. I demonstrate that Macdonald advanced that package prior to Weitz, indeed, (...) prior to any other philosopher of art of the period. Despite this, Macdonald’s contribution is nowhere to be found in the subsequent literature on the definition of art. In closing, I raise the prospect that Macdonald was in fact the primary influence on the development of Weitz’s critique of the definitional project. (shrink)

This paper poses a new challenge to control-based theories of moral responsibility. Control-based theories – as defended, for instance, by Aristotle and John Martin Fischer – hold that an agent is responsible for an action only if she acted voluntarily and knew what she was doing. However, this paper argues that there is a large class of cases of unreflective behavior of which the following is true: the persons involved did not have the kind of control required by control-based theories, (...) yet we intuitively take the persons involved to be morally responsible. (shrink)

In this paper, it is shown (1) that there are two schemes for argument from analogy that seem to be competitors but are not, (2) how one of them is based on a distinctive type of similarity premise, (3) how to analyze the notion of similarity using story schemes illustrated by some cases, (4) how arguments from precedent are based on arguments from analogy, and in many instances arguments from classification, and (5) that when similarity is defined by means of (...) episode schemes, we can get a clearer idea of how it integrates with the use of argument from classification and argument from precedent in case-based reasoning by using a dialogue structure. (shrink)

This paper argues that some traditional fallacies should be considered as reasonable arguments when used as part of a properly conducted dialog. It is shown that argumentation schemes, formal dialog models, and profiles of dialog are useful tools for studying properties of defeasible reasoning and fallacies. It is explained how defeasible reasoning of the most common sort can deteriorate into fallacious argumentation in some instances. Conditions are formulated that can be used as normative tools to judge whether a given defeasible (...) argument is fallacious or not. It is shown that three leading violations of proper dialog standards for defeasible reasoning necessary to see how fallacies work are: (a) improper failure to retract a commitment, (b) failure of openness to defeat, and (c) illicit reversal of burden of proof. (shrink)

The applicability of Bayesian conditionalization in setting one’s posterior probability for a proposition, α, is limited to cases where the value of a corresponding prior probability, PPRI(α|∧E), is available, where ∧E represents one’s complete body of evidence. In order to extend probability updating to cases where the prior probabilities needed for Bayesian conditionalization are unavailable, I introduce an inference schema, defeasible conditionalization, which allows one to update one’s personal probability in a proposition by conditioning on a proposition that represents a (...) proper subset of one’s complete body of evidence. While defeasible conditionalization has wider applicability than standard Bayesian conditionalization (since it may be used when the value of a relevant prior probability, PPRI(α|∧E), is unavailable), there are circumstances under which some instances of defeasible conditionalization are unreasonable. To address this difficulty, I outline the conditions under which instances of defeasible conditionalization are defeated. To conclude the article, I suggest that the prescriptions of direct inference and statistical induction can be encoded within the proposed system of probability updating, by the selection of intuitively reasonable prior probabilities. (shrink)

A rash of very public scandals, of which the behavior of President Clinton and the activities of the late Princess Diana are merely the most famous examples, has raised the question of the appropriateness of the disclosure, or the newsworthiness, of the so-called “private” lives of so-called “public” figures or “public” officials. That is the question I address in this essay.

I shall compare two views of legal concepts: as nodes in inferential nets and as categories in an ontology (a conceptual architecture). Firstly, I shall introduce the inferential approach, consider its implications, and distinguish the mere possession of an inferentially defined concept from the belief in the concept’s applicability, which also involves the acceptance of the concept’s constitutive inferences. For making this distinction, the inferential and eliminative analysis of legal concepts proposed by Alf Ross will be connected to the views (...) on theoretical concepts in science advanced by Frank Ramsey and Rudolf Carnap. Consequently, the mere comprehension of a legal concept will be distinguished from the application of the concept to a particular legal system, since application presupposes a doctrinal commitment, namely, the belief that the inferences constituting the concept hold in that system. Then, I shall consider how concepts can be characterised by defining the corresponding terms and placing them within an ontology. Finally, I shall argue that there is a tension between the inferential and the ontological approach, but that both need to be taken into account, to capture the meaning and the cognitive function of legal concepts. (shrink)

We shall introduce a set of fundamental legal concepts, providing a definition of each of them. This set will include, besides the usual deontic modalities (obligation, prohibition and permission), the following notions: obligative rights (rights related to other’s obligations), permissive rights, erga-omnes rights, normative conditionals, liability rights, different kinds of legal powers, potestative rights (rights to produce legal results), result-declarations (acts intended to produce legal determinations), and sources of the law.

In this essay both the facts/values and facticity/normativity divides are considered from the perspective of global semiotics and with specific regard to the relationships between legal meaning and spatial scope of law’s experience. Through an examination of the inner and genetic projective significance of categorization, I will analyze the semantic dynamics of the descriptive parts comprising legal sentences in order to show the intermingling of factual and axiological/teleological categorizations in the unfolding of legal experience. Subsequently, I will emphasize the translational (...) and enactive cognitive disposition underlying the construction of the second premise of the so-called judiciary syllogism and thereby the untenability of the idea that ‘law makes its facts.’ Hence, I will try to bring to the fore the cultural pre-assumptions encapsulated in the positivistic and therefore also formalistic or analytical approaches to legal experience and the loss of their inner consistency when legal experience confronts the phases and major changes of global semiotics. Finally, I will strive to relativize the opposition between the positivist and non-positivistic theories of law in view of an understanding of legal experience focused not only, or at least not primarily, on what ‘law is’ but also on ‘how’ it unwinds through, and _in spite of_, environmental and semantic transformations. (shrink)

The interdisciplinary debate about the nature of expertise often conflates having expertise with either the individual possession of competences or a certain role ascription. In contrast to this, the paper attempts to demonstrate how different dimensions of expertise ascription are inextricably interwoven. As a result, a balanced account of expertise will be proposed that more accurately determines the closer relationship between the expert’s dispositions, their manifestations and the expert’s function. This finally results in an advanced understanding of expertise that views (...) someone as an expert only if she is undefeatedly disposed to fulfill a contextually salient service function adequately at the moment of assessment. (shrink)

In this paper I will introduce a practical explication for the notion of expertise. At first, I motivate this attempt by taking a look on recent debates which display great disagreement about whether and how to define expertise in the first place. After that I will introduce the methodology of practical explications in the spirit of Edward Craig’s Knowledge and the state of nature along with some conditions of adequacy taken from ordinary and scientific language. This eventually culminates in the (...) respective explication of expertise according to which this term essentially refers to a certain kind of service-relation. This is why expertise should be considered as a predominantly social kind. This article will end up with a discussion of advantages and prima facie plausible objections against my account of expertise. (shrink)

In this paper I will introduce a practical explication for the notion of expertise. At first, I motivate this attempt by taking a look on recent debates which display great disagreement about whether and how to define expertise in the first place. After that I will introduce the methodology of practical explications in the spirit of Edward Craig’s Knowledge and the state of nature along with some conditions of adequacy taken from ordinary and scientific language. This eventually culminates in the (...) respective explication of expertise according to which this term essentially refers to a certain kind of service-relation. This is why expertise should be considered as a predominantly social kind. This article will end up with a discussion of advantages and prima facie plausible objections against my account of expertise. (shrink)

Abstract. The paper begins by challenging Hart's argument aimed to show that sanctions are not part of the concept of law. It shows that in the "minimal" legal system as understood by Hart, sanctions may be required for keeping the legal system efficacious. I then draw a methodological conclusion from this argument, which challenges the view of Hart (and his followers) that legal philosophy should aim at discovering some general, politically neutral, conceptual truths about law. Instead, the aim should be (...) to discover the values because of which certain things in the world are classified as law and others as non-law. Focusing on those would give us a more insight to the roles law plays in society, as well as more illuminating answers to traditional jurisprudential questions like the status of law in evil regimes. (shrink)

John Pollock (1940?2009) was an influential American philosopher who made important contributions to various fields, including epistemology and cognitive science. In the last 25 years of his life, he also contributed to the computational study of defeasible reasoning and practical cognition in artificial intelligence. He developed one of the first formal systems for argumentation-based inference and he put many issues on the research agenda that are still relevant for the argumentation community today. This paper presents an appreciation of Pollock's work (...) on defeasible reasoning and its relevance for the computational study of argument. In our opinion, Pollock deserves to be remembered as one of the founding fathers of the field of computational argument, while, moreover, his work contains important lessons for current research in this field, reminding us of the richness of its object of study. (shrink)

The phenomenon of defeasibility has long been a central theme in legal literature. This essay aims to shed new light on that phenomenon by clarifying some fundamental conceptual issues. First, the most widespread definition of legal defeasibility is examined and criticized. The essay shows that such a definition is poorly constructed, inaccurate and generates many problems. Indeed, the definition hides the close relationship between legal defeasibility and legal interpretation. Second, this essay argues that no new definition is needed. I will (...) show that from an interpretative standpoint, there is nothing special about legal defeasibility. Contrary to what some authors maintain, no unique or privileged source of legal defeasibility exists, nor are there privileged arguments to justify it. Specifically, legal defeasibility refers to interpretative outcomes deriving from interpretative arguments that, on the one hand, are very different from one another, and, on the other, are often employed to justify different interpretative outcomes. In the legal field, the problems related to defeasibility have little in common with the problems that this label covers in other areas—such as logic or epistemology—and they are nothing but the well-known problems related to legal interpretation. In conclusion, this paper argues that as far as legal argumentation is concerned, the notion of legal defeasibility lacks explanatory power, and it should be abandoned. (shrink)

This paper attempts to shed light on the dynamics of criminal adjudication. It starts by exploring some significant—and often ignored—similarities and dissimilarities between the practices and disciplines of, respectively, legal reasoning and fact finding. It then discusses the problem of defining the nature of these processes—legal reasoning, in particular—in terms of their being instances of practical or theoretical reasoning. Thus understood, the problem is shown to be distinct from two traditional questions of jurisprudence, namely whether law consists of facts and, (...) if so, whether these facts are social or moral. Two theses are proposed as solutions to the problem: 'in the majority of cases legal reasoning is theoretical', and 'when legal reasoning is practical it generally involves complex theoretical operations'. Finally, the paper shows how T1 and T2 can make sense of the phenomena presented at the outset. (shrink)

The paper is a critical discussion of Sneddon’s recent proposal to revive ascriptivism in philosophy of action. Despite his declarations, Sneddon fails in his central task of giving an account of the distinction between actions and mre happenings. His failure is due to three major problems. First, the account is based on a misconceived methodology of “type” necessary and “token” sufficient conditions. Second, the “type” necessary condition he proposed is so weak that the connection that obtains between action and responsibility (...) also obtains between action and lack of responsibility. Third, neither the idea of responsibility nor the idea of defeating conditions is elucidated sufficiently to play any role in understanding what it is to be an action. (shrink)

According to explanatory individualism, every action must be explained in terms of an agent's desire. According to explanatory nonindividualism, we sometimes act on our desires, but it is also possible for us to act on others' desires without acting on desires of our own. While explanatory nonindividualism has guided the thinking of many social scientists, it is considered to be incoherent by most philosophers of mind who insist that actions must be explained ultimately in terms of some desire of the (...) agent. In the first part of the paper, I show that some powerful arguments designed to demonstrate the incoherence of explanatory nonindividualism fail. In the second part of the paper, I offer a nonindividualist explanation of the apparent obviousness of belief-desire psychology. I argue that there are two levels of the intelligibility of our actions. On the more fundamental (explanatory) level, the question "Why did the agent do something?" admits a variety of folk-psychological categories. But there is another (formation-of-self) level, at which the same question admits only of answers that ultimately appeal only to the agent's own desires. Explanatory individualism results from the confusion of the two levels. (shrink)

The article considers two different interpretations of the reason model of precedent pioneered by John Horty. On a plausible interpretation of the reason model, past cases provide reasons to prioritize reasons favouring the same outcome as a past case over reasons favouring the opposing outcome. Here I consider the merits of this approach to the role of precedent in legal reasoning in comparison with a closely related view favoured by some legal theorists, according to which past cases provide reasons for (...) undercutting (or ‘excluding’) reasons favouring the opposing outcome. After embedding both accounts within a general default logic, I note some important differences between the two approaches that emerge as a result of plausible distinctions between rebutting and undercutting defeat in formal models of legal reasoning. These differences stem from the ‘preference independence’ of undercutting defeat. Undercutting reasons succeed in defeating opposing reasons irrespective of their relative strength. As a result, the two accounts differ in their account of the way in which precedents constrain judicial reasoning. I conclude by suggesting that the two approaches can be integrated within a single model, in which the distinction between undercutting and rebutting defeat is used to account for the distinction between strict and persuasive forms of precedential constraint. (shrink)

ABSTRACTThe article uses the recent U.S. Supreme Court decision in the same-sex marriage caseObergefell v. Hodgesas the springboard for a general enquiry into the nature and existence of a constitutional right to liberty under the American Constitution. The discussion is divided into two main parts. The first examines the meaning and the justifiability of there being a moral right to liberty as a matter of political philosophy. Two such rights are distinguished and defended: first, a right not to be coerced (...) by the state when the state is motivated by improper reasons ; and second, a right not to be coerced by the state when there are insufficient justifying reasons for the state to do so, irrespective of how such state coercion may be motivated. Neither right is regarded as “absolute,” and so it is morally permissible for the state to override such rights in certain circumstances. The second part of the article examines the distinct and additional considerations that must be taken into account when these two moral rights to liberty are fashioned into corresponding legal rights under American constitutional law. Both such rights survive the transformation, but each becomes altered somewhat in its content. This legal transformation includes recognition of the nonabsolute nature of moral rights, such recognition taking the form of some doctrine of “compelling state interests.” The discussion in these two main parts of the article is prefaced with a defense of the article's use of political philosophy to inform constitutional law, a defense motivated by Chief Justice Robert's denunciation of such an approach to constitutional law in his opinion inObergefell. (shrink)

It has often and correctly been remarked that the Hart-Fuller debate of 1956–1969 set the agenda for Anglo-American jurisprudence in the last half of the twentieth century. The nature of law, of legal obligation, of legal authority, and of law's relation to morality were the questions that debate made central to jurisprudence as we have since practiced it.

We contend that it is possible to argue reasonably for and against arguments from classifications and definitions, provided they are seen as defeasible (subject to exceptions and critical questioning). Arguments from classification of the most common sorts are shown to be based on defeasible reasoning of various kinds represented by patterns of logical reasoning called defeasible argumentation schemes. We show how such schemes can be identified with heuristics, or short-cut solutions to a problem. We examine a variety of arguments of (...) this sort, including argument from abductive classification, argument from causal classification, argument from analogy-based classification and arguments from classification based on generalizations. (shrink)

This paper revisits the challenge of Berman and Hafner’s “missing link” paper on representing teleological structure in case-based legal reasoning. It is noted that this was mainly an ontological challenge to represent some of what made legal reasoning distinctive, which was given less attention than factual similarity in the dominant AI and Law paradigm, deriving from HYPO. The response to their paper is noted and briefly evaluated. A parallel is drawn to a new challenge to provide deep structure to the (...) legal context of textual meaning, drawing on the forthcoming work of two Constitutional law scholars who appear to place some faith in the ways of thinking that AI and Law has developed. (shrink)

Much has been said about the logical difference between rules and principles, yet few authors have focused on the distinct logical connectives linking the normative conditions of both norms. I intend to demonstrate that principles, unlike rules, are norms whose antecedents are linguistically formulated in a generic fashion, and thus logically described as inclusive disjunctions. This core feature incorporates the relevance criteria of normative antecedents into the world of principles and also explains their aptitude to conflict with opposing norms, namely (...) that their consequents are fulfilled to varying extents more frequently than those of rules. I conclude that the property of genericity should be predicated to the norm antecedent of principles, more precisely to the hypothetical action. This is of paramount importance to explain, in terms of logical implication and exclusion, the expansibility of competing principles, in contrast with the exclusive character of conflicting rules. (shrink)

A number of philosophers in recent years have maintained that H. L. A. Hart in The Concept of Law propounded an expressivist account of the semantics of the legal statements that are uttered from the internal viewpoint of the people who run the institutions of legal governance in any jurisdiction. Although the primary aim of this article is to attack the attribution of that semantic doctrine to Hart, the article will begin with some metaphysical matters—the matters of reductionism and naturalism—that (...) often lie behind the development of expressivist approaches to the semantics of normative discourse. After briefly exploring those metaphysical concerns (to which I will return later), the article will begin its main discussion by rehearsing the distinction between the semantics and the pragmatics of utterances. It will then delineate the doctrine of expressivism which the aforementioned philosophers have in mind when they ascribe that doctrine to Hart. Although I will make reference to a few such philosophers, I will focus chiefly on an article by Kevin Toh that has been the fountainhead of all the subsequent attributions of expressivism to Hart. As will be argued herein, Toh and like‐minded philosophers have gone astray in imputing to Hart a semantic version of expressivism. Notwithstanding that Hart’s theory of law can aptly be characterized as expressivist, that characterization is appropriate only when expressivism is understood as an account of the pragmatics of legal statements rather than as an account of their semantics. (shrink)

La philosophie analytique de l'action se réclame du langage ordinaire de l'action comme une des sources de ses data philosophiques. Elle se propose d'en examiner le fonctionnement, d'en extraire les concepts clés, de caractériser les formes de propositions dans lesquelles s'expriment nos actions et notre façon spontanée de les comprendre, d'examiner l'articulation propre aux stratégies d'action et au discours qui les justifie, et de faire des « proposals » pour la construction d'une théorie de l'action. En somme, il s'agit d'ériger (...) le langage ordinaire en instance de contrôle aussi bien sur le plan du traitement de problèmes philosophiques que sur celui de la construction de méta-théories des sciences de l'homme. Ce travail sur le langage de l'action peut revêtir plusieurs fonctions: fonction de clarification ou de détection de confusions, fonction thérapeutique pour guérir le langage de maladies philosophiques, c'est-à-dire des pseudo-problèmes, fonction heuristique pour prescrire une diète appropriée au traitement des perplexités philosophiques qui surgissent « quand le langage tourne à vide, non quand il travaille », pour employer le mot de Wittgenstein. (shrink)

Ratio Juris, Volume 35, Issue 2, Page 223-239, June 2022.

The rule that a patient should give a free, fully-informed consent to any therapeutic intervention is traditionally thought to express merely a right of the patient against the physician, and a duty of the physician towards the patient. On this view, the patient may waive that right with impugnity, a fact sometimes expressed in the notion of a right not to know. This paper argues that the rule also expresses a duty of the patient towards the physician and a right (...) of the physician against the patient. The argument turns, first, on the truism that a physician has no obligation to commit a battery, or unauthorized touching, and, second, on the thesis that a patient necessarily cannot consent to something that is unknown to him. The conclusion is drawn that a patient is not free to receive treatment voluntarily without knowledgeably authorizing it. CiteULike Connotea Del.icio.us What's this? (shrink)

The paper consists of three parts. In the first part five kinds of defeasibility are distinguished that is ontological, conceptual, epistemic, justification and logical defeasibility. In the second part it is argued that from these, justification defeat is the phenomenon that plays a role in legal reasoning. In the third part, the view is defended that non-monotonic logics are not necessary to model justification defeat, but that they are so to speak the natural way to model this phenomenon.

While defeasibility in legal reasoning has been the subject of recent scholarship, it has yet to be studied in the context of judicial opinion. Yet, being subject to appeal, judicial decisions can default for a variety of reasons. Prakken (2001) argued that the defeasibility affecting reasoning involved in adversarial legal argumentation is best analysed as procedural rather than logical. In this paper we argue that the defeasibility of ratio decendi is similarly best explained and modeled in a procedural and dialectical (...) framework. We propose that appeals are best understood as meta-dialogues about the reasoned dialogue occurring in the initial trial. (shrink)

Vicarious responsibility is a notoriously puzzling notion in normative reasoning. In this article we will explore two fundamental issues, which we will call the “explication problem” and the “justification problem”. The former issue concerns how vicarious responsibility can plausibly be defined in terms of other normative concepts. The latter issue concerns how ascriptions of vicarious responsibility can be justified. We will address these two problems by combining ideas taken from legal theory and moral philosophy. Our analysis will emphasise the importance (...) of the voluntary involvement of the normative parties considered liable in a relation with other normative parties who causally contributed to a prohibited state-of-affairs. (shrink)

Health insurance coverage for incarcerated citizens is generally acceptable by Western standards. However, it creates internal tensions with the prevailing justifications for public healthcare. In particular, a conceptualization of medical care as a source of autonomy enhancement does not align with the decreased autonomy of incarceration and the needs-based conceptualization of medical care in cases of imprisonment; and rejecting responsibility as a criterion for assigning medical care conflicts with the use of responsibility as a criterion for assigning punishment. The recent (...) introduction of sofosbuvir in Germany provides a particularly instructive illustration of such tensions. It requires searching for a refined reflective equilibrium regarding the scope, limits, and justifications of publicly guaranteed care. (shrink)

Primeiramente, oferecemos uma apresentação teórica da representação do pensamento prático, começando pela distinção entre silogismo dialético e silogismo demonstrativo. Fazemos referência à crítica de Toulmin contra o dedutivismo dominante de seu tempo. Em seguida, fornecemos argumentos para apoiar a relevância heurística do modelo de Toulmin para entender a discussão sobre a inclusão da lógica padrão na representação do pensamento comum. Afirmamos que o projeto analítico toulmaniano permite entender, com clareza metódica, a derrotabilidade dos argumentos do senso comum por meio da (...) investigação da noção modal de probabilidade na linguagem comum. First, we offer theoretical resemblance of the representation of practical reasoning, beginning with the distinction between demonstrative and dialectical syllogism. We make reference to the Toulmin’s critique against to the dominant deductivism in his time. Then we give arguments to sustain the heuristic relevance of Toulmin’s model to understand the discussion about the inclusion of default logics in the representation of ordinary reasoning. We assert that the Toulminian analytic design allows to understand, with methodical clarity, the defeasibility of common sense arguments by means of the investigation of the modal notion of probability in ordinary language. (shrink)

En quoi les directives anticipées sont-elles normatives? En quoi ces écrits censés exprimer la volonté d’une personne à t1, devraient-ils être respectés par les soignants à t2? Pour répondre, nous analysons les directives anticipées pour la fin de vie comme un acte de langage. Nous proposons d’y voir une ascription, au sens où H. L. A Hart a forgé le concept d’ ascription de responsabilité et de droits. Il se pourrait qu’une telle analyse aide à sortir de l’ornière du dilemme (...) entre paternalisme et autonomisme, et à contourner les questions métaphysiques sur l’identité personnelle. À la lumière des thèses de Hart et de ses principales critiques, nous considérons l’ascription d’un droit du patient, l’ascription de sa volonté et l’ascription des responsabilités pour l’acte effectué par les soignants d’après les directives. (shrink)

Most philosophers of criminal law agree that between criminal offences and defences there is a significant, substantial difference. It is a difference, however, that has proved hard to pin down. In recent work, Duff and others have suggested that it mirrors the distinction between criminal answerability and liability to criminal punishment. Offence definitions, says Duff, are—and ought to be—those action-types ‘for which a defendant can properly be called to answer in a criminal court, on pain of conviction and condemnation if (...) she cannot offer an exculpatory answer’; and defences are ‘exculpatory answers’ that ‘block the transition from responsibility to liability’. I criticise this answerability-based account of the offence/defence divide. It is descriptively false, I claim, as well as normatively unappealing. (shrink)