The legal system – from the jury room to the deliberations of the Supreme Court – offers an abundance of rich resources for the study and teaching of critical thinking.The courts have (often for centuries) struggled with many of the issues central to critical thinking. The courts not only provide fascinating examples and exercises for students to examine, but in many areas – the appropriate use of ad hominem arguments, the distinction between argument and testimony, the proper placing (...) of the burden of proof, the distinction between necessary and sufficient conditions, the legitimate (and fallacious) use of appeals to authority, the nature of arguments by analogy – jurists and legal scholars have analyzed these issues carefully, and their insights are of great value to anyone concerned with rigorous critical thinking. Study of those legal resources has also had an impact on my views concerning the moral responsibility system. (shrink)

Many scholars think that women are sentenced more leniently than men because judges are paternalistic toward women. In this article, I suggest that paternalism is a multilayered concept and that it is important to distinguish between judicial concerns for protecting women and those for protecting children and families. To learn what factors judges consider in sentencing and whether these differ for men and women defendants, I interviewed 20 men and 3 women judges in two state criminal courts. I learned (...) that the primary objects of judicial protection were not women, but children, and men's and women's economic support or care for families. However, there was a labor hierarchy in the judges' minds in that they believed that care giving was more important than wage earning for the maintenance of families. Interactive influences among the defendant's gender, familial status, race or ethnicity, and the nature of the offense charged are discussed. (shrink)

Most of us think that states are justified in incarcerating criminals, sometimes for decades. In this paper I suggest that if states are justified in this, they are also justified in inflicting certain forms of corporal punishment. Many forms of corporal punishment are less burdensome than long-term incarceration, and arguably, they are also cheaper, fairer, more deterring, and less destructive of the social and economic networks that convicts often depend on for future reintegration into society. After presenting a pro tanto (...) case for corporal punishment, I consider a number of objections. I conclude that although there are genuine downsides to corporal punishment that must be taken very seriously, the case for the judicial use of this punishment method is much stronger than what is commonly assumed. (shrink)

"The main argument of this paper is that there are reasons for judges not only to evaluate the substantive merit of legislation, but to advert to the fact that the place of elected legislatures in our scheme of government gives legislation a standing, an entitlement to consideration, that may go beyond judicial estimates of its intrinsic merit." [Is this just a statement of procedural legitimacy?] "To answer the question [of who assigns rights], courts must take a view as to (...) the proper role of courts vis-a-vis legislatures; they must take a view about the allocation of power in our legal/political system. In drawing this line, courts can take one of two approaches. First, they can make decisions solely on the basis of considerations internal to the relevant clauses of the Constitution, perhaps by giving them a moral reading. Second, they can include in their thinking institutional considerations regarding the role of popular decision-making bodies in our governmental structure." Claims that Dworkin advocates the first [which is false], and that we should accept the second, which is advocated by advocates of judicial restraint. It is appropriate for a judge to give weight to the fact that a decision was reached by a legislature. "Specifically, I think it appropriate that courts presume the constitutionality of such laws, understanding that their own role demands that they overturn them if they are not merely different from what the judges might have decided on their own, but are beyond acceptability." Reasons for the presumption of constitutionality: value of compromise, allocation of power ), appropriateness of humility, integrity and community. (shrink)

The normally staid topics of judicial ethics and the standards for judicial recusal have become the focus of political debates, editorials and letter writing campaigns. Most of the recent focus falls on conservative justices of the US Supreme Court and in particular on their anticipated participation in what is expected to be an important ruling on the constitutionality of the heath care reforms championed by President Obama and the Democratic Party. But the issue is not simply about partisan (...) politics. It's also about the structure of the US federal judiciary and the need to think about the impact of two-career couples on the judicial recusal rules. (shrink)

Landmark Supreme Court rulings determine American law by adjudicating among competing reasonable interpretations of basic political rights. Jeremy Waldron argues that this practice is democratically illegitimate because what determines the content of basic rights is a bare majority vote of an unelected, democratically unaccountable, elitist body of nine judges. I argue that Waldron's democratic critique of judicial review has implications for real-world reform, but not the implications he thinks it has. He argues that systems of legislative supremacy over the (...) judiciary are democratically preferable to the American one. I provide reasons why his argument is unsound and explain that, properly construed, Waldron's premises support implementing a system where ordinary citizens chosen by lottery participate in a deliberative mini-public to vote on which reasonable interpretation of a basic political right will become the law of the land. (shrink)

This lecture asks whether judges might sometimes be morally justified in covert law-breaking in the interests of justice, the rule of law or good governance. Many historical examples of this phenomenon, are provided, drawn mainly from the British legal tradition, but also from Australia, Canada, India and the United States. Judicial noble lies are distinguished from fig-leaves and wishful thinking, and the relative importance of logic and pragmatism in legal reasoning is discussed. After examining arguments for and against (...) judicial subterfuge, it is concluded that in modern liberal democracies subterfuge is justified only to avoid extreme injustices or violations of the rule of law. (shrink)

Judges wield enormous power in modern society and it is not surprising that scholars have long been interested in how judges think. The purpose of this article is to examine how US judges reason on language issues. To understand how courts decide on comprehension of constitutional rights by speakers with Limited English Proficiency (LEP), I analyzed 460 judicial opinions on appeals from LEP speakers, issued between 2000 and 2020. Two findings merit particular attention. Firstly, the analysis revealed that in (...) 36% of the interrogations, LEP speakers were advised of their rights only in English. This means that two decades after the Executive Order 13166 (2000) _Improving Access to Services for Persons with Limited English Proficiency_, law enforcement still doesn’t have adequate resources to advise LEP speakers of their constitutional rights in their primary languages. Secondly, the analysis revealed that some courts treat second language proficiency as an all-or-none phenomenon. This approach results in linguistic discrimination against LEP speakers who cannot comprehend legal language but are denied the services of an interpreter because they can answer basic questions in English. I end the discusson with recommendations for best practices in delivery of constitutional rights. (shrink)

Jeremy Waldron objects to judicial review of legislation on the ground that it effectively accords the views of a few judges ‘superior voting weight’ to those of ordinary citizens. This objection overlooks that representative government does the same. This article explores the concept of political representation and argues that delegates may be institutionally bound to heed the convictions of their constituents, but they are not their proxies. Rather, they are best viewed as their trustees. They ought to decide according (...) to what they think is in their constituents’ interest. In this sense, a strong element of independent judgment is involved in their institutional role. So, if we have no problem with assigning their views superior voting weight, it should not be thought particularly objectionable to give judges the same power. What is more, once we acknowledge the independence they enjoy, the question arises whether and by what institutional means we ought to constrain and check their power. The judiciary is well suited effectively to carry out this supervisory function, because it is immune from political pressure by the legislature that would reduce it to its instrument. Hence, in some cases the institution of judicial review is morally justified. (shrink)

There is more to law than rules, robes and precedents. Rather, law is an integral part of social practices and policies, as diverse and complex as society itself. Thinking About Law offers a comprehensive introduction to the ways in which law has been presented and represented. It explores historical, sociological, economic and philosophical perspectives on the major legal and political debates in Australia today. The contributors examine the position of Aborigines in the Australian legal system and the impact of (...) the Mabo case; divisions of power in Australian society and law; the question of objectivity in law; the relationship between legislation and social change; judicial decision-making and other issues. Accessibly written, Thinking About Law is essential reading for students and anyone interested in understanding our legal system. (shrink)

We live in a period of enormous contradictions, so well reflected in social life as well as in legal discourse. A pluralistic society as diverse as India in this age of globalization is a challenge to both the lawmakers and the courts, with new problems emerging in new avatars with alarming consistency. In the last six decades or so, Constitutional democracy has witnessed some of the unprecedented upheavals both in the social and political life of the nation as well as (...) in the arena of life. Laws have been enacted to deal with emerging problems. Courts have been innovative, and exemplary as regards their judicial courage and craft to uphold rule of law and democracy in a country of billion hopes and aspirations. The present book is an ensemble of contributions from young legal scholars from some of the major legal institutions of India. The topics discussed are contemporary and address some of the challenging and emerging problematic areas of law. (shrink)

As Hong Kong is the only common law jurisdiction operating in Chinese, alongside English, writing a common law judgment in Chinese is like exploring an uncharted domain in legal discourse. Apart from those judgments originally written in Chinese, Chinese judgments have also been prepared by way of translation from English. Besides, there are also English translations of Chinese judgments of jurisprudential value. Judgments in Hong Kong therefore present an interesting case for study both from a legal point of view and (...) from the perspective of discourse analysis. As Chinese judgments in Hong Kong to a large extent mirror images of their English counterparts, they provide us with insights into how judicial thinking embodied in one language is carried over to another. As the translation of court judgments can serve as a clue to the understanding of how judicial thinking is transferred and reflected in another language, this study looks into some of the fundamental problems of legal translation in general and translation of court judgments in particular, showing how the sociosemiotic approach can shed light on those problems. (shrink)

Models of idealistic societies pervade the history of political thought from ancient times to the present. How can these models contribute to our thinking about political life in our non-ideal world? Not, as many political theorists have hoped, by performing a normative function -- by giving us reasons to accept particular political principles for the purpose of regulating our thought and behavior. Even still, idealistic models can sharpen our thinking about politics by performing a conceptual function -- by (...) helping us clarify and interpret the concepts we use to describe and evaluate political behavior and institutions. These insights point to a more incisive and judicious approach to political inquiry, in which explanatory and normative modes of thought are tightly intertwined. (The manuscript is under review. I have uploaded the table of contents, chapters 1 and 2, and the bibliography. Chapter summaries are available from my website.). (shrink)

As its title suggests, this is a book about constitutional interpretation. More specifically it is an articulation and defense of that particular method of constitutional interpretation, known as originalism, which looks to the original intent of the constitution’s framers as a benchmark against which interpretation is to be made. Professor Whittington believes “that originalism is the method most consistent with the judicial effort to interpret the written constitutional text and that an originalist jurisprudence facilitates the realization of a political (...) system grounded on popular sovereignty”. I think it is fair to say that in the current legal, political, and philosophical climate, originalist theories are pretty much on the defensive, which makes Whittington’s book all the more timely and valuable. (shrink)

The philosophic spectator watches from a distance as a “disinterested” and impartial member of an audience, Lectures on Kant’s political philosophy, University of Chicago Press, 1992; Kant, On history, Prentice Hall Inc, 1957). Judicial systems use many of the elements of the spectator in the concept of an eyewitness but, with increased video technology use, the courts have taken the witness a step further by hiring forensic video analysts. The analyst’s stance is rooted in objectivity, and the process of (...) breaking a video down to its component parts to examine it, but is it based on the philosophic spectator? To better understand whether the forensic video analyst has adopted the stance of the philosophic spectator, this paper examines both the analyst and spectator, and discusses the implications for how we think and administer justice. (shrink)

SUMMARYThis study is centred on events in 1580 surrounding a scandalous publication of Machiavelli’s The Prince by Pietro Perna in Basel. With the presentation of new documents the paper fully reconstructs the judicial case that followed its publication, raising new questions about the author of the infamous book Vindiciae contra tyrannos. However, this fascinating story will serve only as a starting point for the investigation of Machiavelli's late-sixteenth-century reception, providing insights into not only the political and religious but also (...) the scientific context of its publication. These fields, it will be argued, were thoroughly interrelated, all sharing similar epistemological premises. (shrink)

We live in a liberal, pluralistic, largely secular society where, in theory, there is fundamental protection for freedom of conscience generally and freedom of religion in particular. There is, however, both in statute and common law, increasing pressure on religious believers and conscientious objectors to act in ways that violate their sincere, deeply held beliefs. This is particularly so in health care, where conscientious objection is coming under extreme pressure. I argue that freedom of religion and conscience need to be (...) put on a sounder footing both legislatively and by the courts, particularly in health care. I examine a number of important legal cases in the UK and US, where freedom of religion and conscience have come into conflict with government mandates or equality and anti-discrimination law. In these and other cases we find one of two results: either the conscientious objector loses out against competing rights, or the conscientious objector succeeds, but due to what I consider unsound judicial reasoning. In particular, cases involving cooperation in what the objector considers morally impermissible according to their beliefs have been wrongly understood by some American courts. I argue that a reasonable theory of cooperation incorporated into judicial thinking would enable more acceptable results that gave sufficient protection to conscientious objectors without risking a judicial backlash against objectors who wanted to take their freedoms too far. I also venture into broader, more controversial waters concerning what I call freedom of dissociation – the fundamental right to withdraw from associating with people, groups, and activities. It is no more than the converse of freedom of association, which all free societies recognise as a basic right. How far should freedom of dissociation go? What might society be like if freedom of dissociation were given more protection in law than it currently has? It would certainly give freedom of religion and conscience a substantial foundation, but it could also lead to discriminatory behaviour to which many people would object. I explore some of these issues, before going back to the narrower area of freedom of conscience and religion in health care, making some proposals about how the law could strengthen these basic pillars of a liberal, free society. (shrink)

We live in a liberal, pluralistic, largely secular society where, in theory, there is fundamental protection for freedom of conscience generally and freedom of religion in particular. There is, however, both in statute and common law, increasing pressure on religious believers and conscientious objectors (outside wartime) to act in ways that violate their sincere, deeply held beliefs. This is particularly so in health care, where conscientious objection is coming under extreme pressure. I argue that freedom of religion and conscience need (...) to be put on a sounder footing both legislatively and by the courts, particularly in health care. I examine a number of important legal cases in the UK and US, where freedom of religion and conscience have come into conflict with government mandates or equality and anti-discrimination law. In these and other cases we find one of two results: either the conscientious objector loses out against competing rights, or the conscientious objector succeeds, but due to what I consider unsound judicial reasoning. In particular, cases involving cooperation in what the objector considers morally impermissible according to their beliefs have been wrongly understood by some American courts. I argue that a reasonable theory of cooperation incorporated into judicial thinking would enable more acceptable results that gave sufficient protection to conscientious objectors without risking a judicial backlash against objectors who wanted to take their freedoms too far. -/- I also venture into broader, more controversial waters concerning what I call freedom of dissociation – the fundamental right to withdraw from associating with people, groups, and activities. It is no more than the converse of freedom of association, which all free societies recognise as a basic right. How far should freedom of dissociation go? What might society be like if freedom of dissociation were given more protection in law than it currently has? It would certainly give freedom of religion and conscience a substantial foundation, but it could also lead to discriminatory behaviour to which many people would object. I explore some of these issues, before going back to the narrower area of freedom of conscience and religion in health care, making some proposals about how the law could strengthen these basic pillars of a liberal, free society. (shrink)

Courts, Litigants, and the Digital Age examines the ramifications of technology for courts, judges, and the administration of justice. It sets out the issues raised by technology, and, particularly, the Internet, so that conventional paradigms can be updated in the judicial context. In particular, the book dwells on issues such as proper judicial use of Internet sources, judicial ethics and social networking, electronic court records and anonymization techniques, control of the courtroom and jurors' use of new technologies, (...) as well as the Internet's impact on judicial appointments and the diversity of the judiciary. The second edition includes discussion of current issues in this rapidly developing area, such as privacy protection, the "right to be forgotten," cyber intimidation, freedom of digital speech, and litigant anonymity. Through examination of relevant practical, legal, and ethical issues, it endeavours to extract lessons from the developing issues surveyed and proposes forward-thinking approaches based on proportionality principles. (shrink)

Hannah Arendt brings the traditionally ontological practice of phenomenology into social and political philosophy. She does this in two ways: by employing phenomenological methods in her approach to examining the world around her and by showing how phenomenology is related to ethical life through her description of thinking. In this article, I explore the first of these ways by locating Arendt’s methods in relation to Martin Heidegger’s definition of phenomenology, as given in the Being and Time. Arendt’s usage of (...) phenomenological methods is clear in her examinations of banal evil and modern judicial systems. These topics lead to a discussion of how thinking, for Arendt, is a phenomenological activity that has bearing on ethical life. I will turn to Arendt’s essay, “Personal Responsibility Under Dictatorship” to clarify how phenomenology, as characteristic of the thinking Arendt prescribes, is ethically important. (shrink)

It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule of (...) law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, the metaphysics/metasemantics of (legal) content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law. (shrink)

This introduction to ethics judiciously combines moral theory with applied ethics to give an opportunity for students to develop acute thinking About Ethical Matters.; The Author Begins Motivating A Concern For moral discourse by dispelling often met objections over relativism and subjectivity. interweaving normative and meta-ethical considerations, a convincing modern account of moral thinking emerges.; Moral theories - consequentialism, Kantianism, contractualism - are explained and illustrated in a way that holds the reader's attention, and students of ethics will (...) take away a perceptive and practical understanding of the nature of moral reasoning and an ability, on such matters, to think afresh for themselves. (shrink)

The great challenge of rhetorical argument is to make discourse ethical without making it less logical. This challenge is of central importance throughout the full range of practical argument, and understanding the relation of the ethical to the logical is one of the principal contributions the humanities, in this case the study of rhetoric, can make to legal scholarship. Aristotle’s Rhetoric shows how arguments can be ethical and can create ethical relations between speaker and hearer. I intend to apply Aristotle’s (...) analysis to a phenomenon that did not yet exist for him, that of authority, by asking how the acts of asserting and accepting authority can be ethical acts. I take as a test case a peculiarly unfortunate and inept appeal to authority, that offered by the counsel for the District of Columbia in arguing Bolling v Sharp who cited Taney’s opinion in Dred Scott to clinch his point. By seeing just what goes wrong in such a maladroit appeal, I explore the rational, voluntary and ethical dimensions of a decision to accept a given commitment to authority. I use Joseph Raz’s analysis of authority and the relation of reason to authority, yet think I go beyond Raz by exploring the deliberate and voluntary nature of submission to authority. Choosing to be bound by an authority is an ethical act. As such it is always rational and yet never purely rational. The Supreme Court’s choice of authorities is part of its making itself into an authority, and is a paradigm of the ethical act of choosing to be obligated. Choosing to be committed or obligated is a central paradox of political theory and considerations of authority and obligation, at least since early social contract theorists. However, its importance for judicial reasoning, which at the same time chooses to submit to authority and itself becomes an authority, has not been noted. Consideration of the relations between the ethical and the logical can help us better to articulate the constitution of ethical authority. (shrink)

In this article the author claims that Waluchow’s “living tree constitutionalism” constitutes a “copernican revolution in our thinking”, because it provides not a mere common law theory of judicial review but a general theory of judicial review and of constitutional democracy. Although agrees that something like the common law methodology is at play here, disagrees on characterizing it as bottom-up. Accordingly, intends to praise the main aspiration of A Common Law Theory of Judicial Review: The Living (...) Tree, i.e. to provide a better understanding of charters and judicial re- view in a constitutional democracy by “the living tree” metaphor; to appraise an unwarranted claim, i.e. to reduce it to the common law bottom-up methodology; and, to raise the alternative with a friendly amendment, i.e. to identify the community’s constitutional political morality via, a method that is both bottom-up and top-down, which is already explicit —or at least implicit— in his account.Resumen:En este artículo el autor sostiene que el “constitucionalismo del árbol viviente” de Waluchow constituye una “revolución copernicana en nuestro pensamiento”, dado que proporciona no sólo una teoría del judicial review, sino una teoría general del judicial review y de la democracia. No obstante que el autor coincide en que en esta teoría de Waluchow existe un lugar para una metodología del common law, discrepa en caracterizarla como una que va de “abajo hacia arriba”. Por lo tanto, el objetivo del artículo es resaltar la importancia del argumento principal del libro A Common Law Theory of Judicial Review: The Living Tree por medio del cual se intenta proporcionar un mejor entendimiento de las garantías individuales y del judicial review, pero advertir una consecuencia innecesaria, es decir, reducir la explicación a una metodología del common law de “abajo hacia arriba”. A su vez el autor pretende proporcionar una corrección amigable: identificar la moralidad política constitucional de la comunidad a través de un método que es tanto de “abajo hacia arriba” como de “arriba hacia abajo”, metodología que se encuentra implícita en el libro de Waluchow. (shrink)

According to the common thinking of continental European lawyers, a rule is invalid each and every time either it was not produced in accordance with the metarules which govern the production of rules in the system, or it is inconsistent with a “superior” (higher‐ranked) rule belonging to the same system. Thus, a better understanding of the concept of invalidity demands a careful inquiry into the various kinds of meta‐rules which govern the production of rules as well as into the (...) various kinds of normative hierarchies. The paper is mainly devoted to such an analysis. Five different grounds for invalidity are distinguished. The analysis further shows that invalidity can affect rules as well as legal provisions and legal sources. Further, invalidity should be sharply distinguished from non‐existence (existence being a sufficient condition for rules to be applied). In most legal systems, invalid rules too are susceptible of judicial application: At least, until their invalidity is “declared” (in a constitutive way) by a competent organ (namely, a constitutional court, as far as statutory rules are concerned). (shrink)

Justifying religious exemptions is a complicated matter. Citizens ask to not be subject to laws that everyone else must follow, raising worries about equal treatment. They ask to be exempted on a religious basis, a basis that secular citizens do not share, raising worries about the equal treatment of secular and religious citizens. And they ask governmental structures to create exceptions in the government’s own laws, raising worries about procedural fairness and stability. We nonetheless think some religious exemptions are appropriate, (...) and in some cases, that exemptions are morally required. So how are we to determine when religious exemptions are justified? This article employs a public reason framework to provide an answer. I show how to publicly justify religious exemptions. My thesis is that a citizen merits a religious exemption under four conditions: if she has sufficient intelligible reason to oppose the law, if the law imposes unique and substantial burdens on the integrity of those exempted that are not off-set by comparable benefits, if the large majority of citizens have sufficient reason to endorse the law, and if the exempted group does not impose significant costs on other parties that require redress. If these conditions are met, then legislative and/or judicial bodies should carve out an exemption for those requesting them. (shrink)

… if someone really thinks, in advance, that it is open to question whether such an action as procuring the judicial execution of the innocent should be quite excluded from consideration—I do not want to argue with him; he shows a corrupt mind. (G. E. M. Anscombe, ‘Modern Moral Philosophy’, Philosophy, 1958, p. 17).

Most people think of preemption as a technical, constitutional doctrine, but it is pivotally important to health and safety and opens the door to broad judicial discretion. The Rehnquist and Roberts Courts’ jurisprudence, with its support for both business and preemption, has been distinctly antiregulatory, invalidating major state public health rules in occupational safety, tobacco control, and motor vehicle safety, among other things.1 And apart from these antiregulatory stances, the Supreme Court has also been maddeningly inconsistent. Consider three relatively (...) recent cases. In its 2008 decision in Riegel v. Medtronic, Inc., the Court held that federal law bars injured consumers from challenging the .. (shrink)

This paper explores ‘reasonable doubt’ as an enlightening notion to think of reasoning and decision-making generally, beyond the judicial domain. The paper starts from a decision-theoretic understanding of the notion, whereby it can be defined in terms of degrees of belief and a probabilistic confirmation threshold for action. It then highlights some of the limits of this notion, and proposes a richer analysis of epistemic states and reasoning through the lens of ‘reasonable doubt’, which in turn is likely to (...) supplement the DT framework. The strategy consists in fighting on two fronts: with DT, the paper claims that there is no absolute notion of ‘reasonable doubt’ but, pace DT, it shows that reasonable doubt cannot be accounted for only in terms of degrees of belief and probabilistic threshold. We argue that the lens of reasonable doubt sheds light on aspects of belief dynamics, as well as of the nature of epistemic attitudes, which are often obscured by belief-centred approaches. In particular, when it comes to acknowledging the necessary ignorance and irreducible uncertainty that we face in our everyday-life decisions, studying the various facets of doubt rather than focusing on what can be believed, enables one to do justice to the richness and diversity of the mental states in play. (shrink)

Theories of aggregated legislative intent posit that the legislative intent of parliament is what a significant enough proportion of legislators intended (e.g., legislative intent is p if a majority intend that p). After all, many think the same way about democracy (‘votes reveal the will of the people’) and about courts (‘a court decision is based on judicial voting’). The existing literature on aggregated legislative intent, however, tends to make two undefended assumptions: (i) Informed Assumption: all legislators have policy (...) intentions; and (ii) Group Intent Assumption: the existence of an aggregated intent entails the existence of a group intent. Despite these assumptions being subject to great scrutiny, they largely remain undefended. This paper defends the Group Intent Assumption and shows that aggregated theories can survive with a weaker version of the Informed Assumption. (shrink)

SUMMARYJeremy Bentham has two very strong commitments in his thought: one is to the principle of utility, or the greatest happiness principle, as the fundamental principle of morality; the other is to truth, as indicated, for instance, in his opposition to falsehood and fiction in the law. How, then, did Bentham view the relationship between utility and truth? Did he think that utility and truth simply coincided, and hence that falsehood necessarily led to a diminution in happiness, and conversely truth (...) led to an increase in happiness? This article addresses this issue through two bodies of material: the first consists of Bentham's writings on religion under the heading of ‘Juggernaut’ and dating from 1811 to 1821; the second consists of the writings on judicial evidence dating from 1803 to 1812 and which appeared in Rationale of Judicial Evidence. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Wilfrid Sellars and Phenomenology: Intersections, Encounters, Oppositions ed. by Daniele De Santis and Danilo MancaHeath WilliamsDE SANTIS, Daniele and Danilo Manca, editors. Wilfrid Sellars and Phenomenology: Intersections, Encounters, Oppositions. Athens: Ohio University Press, 2023. xiv + 272 pp. Cloth, $95.00This is an eminently readable and engaging collection of essays. There is much more here than merely comparing and contrasting two disparate thinkers. There are important contributions to metaphysics, (...) epistemology, thought about the relation between science and culture, and the future of phenomenology and pragmatism. It has what one wants from a collection of edited papers: very few contributions that are obscure or tangential, with nearly every one addressing a broadly relevant philosophical topic.The two major motifs running through the various works in this edited book are epistemologically orientated questions on the myth of the given, and metaphysically orientated questions arising from the contrasting scientific and manifest images. As Landfredi states, these "are two main theoretical dimensions in which phenomenology and Sellars's approach critically confront each other."To the metaphysical motifs firstly. Husserl's thoughts on the relation between the scientific and manifest image is outlined in his Crisis of the European Sciences and Sellars's in Philosophy and the Scientific Image of Man. In contemporary metaphysics, the competition between the manifest and scientific image has been heightened thanks to the aggressive scientific realism of works like Ladyman and Ross's Everything Must Go, coupled as it is with a dismissal of our commonsense perceptual and cognitive capacities.Both Lanfredi and Manca take a conciliatory approach, aiming to minimize incompatibility between Husserl's manifest and Sellars's scientific images. Manca's attentive and judicious reading makes apparent the origins of the metaphysical commitments of both thinkers. The former accepts the power of the scientific method of mathematization but warns that its ontology remains forever incomplete until the lifeworld is considered. The latter's scientific realism ultimately affords science the final say on what exists. The difference between them comes down to whether the emergent properties of a system are ultimately reducible to parts and the arrangement between them. Sellars thinks they are, while for Husserl "the parts are not juxtaposed from without but integrated with each other in such a way that they become able to generate new [End Page 546] properties." A thematically related analysis is found in the contribution of De Santis, who argues that Simons's adaptation of Husserlian mereology fails to provide a solution on how to build complex particulars out of basic ones.Hopp's article connects our two domains of critical encounter as he suggests that you can get from a phenomenological epistemology to a metaphysical reification of items in manifest image, because fulfilled perceptual knowledge claims presuppose the existence of that which is perceived. He thinks there are resources within Husserl not only to defend this position but to use it to critique many of the claims that undergird Sellars's prosecution of the myth. Hopp ends by asking what current experimental evidence the scientific realist has to rule out the existence of macrosized phenomenologically given objects. One might refer to the above-mentioned work by Ladyman and Ross by way of reply.Epistemological themes include the claim that aspects of phenomenology can be imported or modified to forge a coherent account of perceptual knowledge that (a) affords perception a role in epistemology and (b) explains the concomitant, vexing relation between the space of reasons of causes while (c) avoiding the myth of the given.Two authors who demonstrate close parallel between Husserl and Sellars are Nunziante and Rump. Nunziante shows that one of Sellars's attempts at (a) comes via his account of "perceptual takings," which is influenced by, and homologous to, Husserl's account of the passive synthesis of prepredicative perception in Experience and Judgement, as handed to Sellars by Farber. These prove to be essential stepping stones in Sellars's thinking about how the perceptual realm marries to the intellectual one.Rump shows that Sellars's attempt to solve the regress problem for coherentism in order to solve (a) stumbles on the problem of how causal, nonconceptual, noncategorial, and nonpropositionally structured protoperceptual experiences furnish... (shrink)

We lack analyses of the judiciary from a systemic perspective. This article thus examines arguments offered by deliberativists who have reflected about this institution and argues that the current state of deliberative democracy requires us to rethink the ways they conceive of the judiciary within a deliberative framework. After an examination of these accounts, I define the deliberative system and describe the different phases deliberative democracy has gone through. I then single out elements common to all systemic approaches against which (...) I test whether the regard that the authors show for the judiciary in deliberative terms can be maintained and argue in the negative. I conclude by pointing at the necessity to think about the definition of deliberative systems, and to the value of these discussions for debates on the legitimacy of judicial review when it is exercised under the form of judicial supremacy. (shrink)

_The Case of the Speluncean Explorers, _written in 1949 by Lon Fuller, is the most famous fictitious legal case of all time. Describing a case of trapped travellers who are forcd to cannibalize one of their team, it is used on courses in philosophy of law and Jurisprudence to show how their trial upon rescue touches on key concepts in philosophy and legal theory such as utilitarianism and naturalism. _The Case of the Speluncean Explorers: Nine New opinions_ includes a reprint (...) of Fuller's classic article and a much-needed revision of and addition to the five openings originally expressed in the case by the five Supreme Court Judges. Peter Suber carefully and clearly introduces students to the main themes of Fuller's article before introducing nine new opinions. These opinions include perspectives from communitarian, feminist, multicultural, postmodern and economic theories of law, updating Fuller's original case and bringing contemporary theories of law to bear on the five original opinions. Why read this book? One reason is to get beyond sloganeering about "judicial activism" and "activist judges". The book is an enjoyable and even-handed way to understand what the debate is about. It doesn't tell you what to think, but illustrates the contending positions and lets you think for yourself. It will show you how judges with different moral and political beliefs interpret written law, how they use precedents, how they conceive the proper role of judges, how they conceive the relationship between law and morality, and how they defend their judicial practices against criticism. It anchors all of this in a Supreme Court hearing of a gripping, concrete case on which real people disagree. The book uses no jargon and assumes no prior knowledge of law or legal philosophy. (shrink)

A survey of recent literature would suggest that Aristotle has become a whipping boy for philosophers who would advocate equality between the sexes. What I hope to show is that we can actually advance the cause of sexual equality by treating him more judiciously. Aristotle does argue that men and women by nature have different psychologies, and even that men are psychologically superior to women. But contrary to what many today think he himself does not conclude from this proposition that (...) men and women ought to have roles entirely different within a city. Indeed, he leaves ample room in his theory for women to participate in political rule. We shall see by his own arguments that all women ought to have a vote in general assemblies, and that some women ought to hold high political office. (shrink)

The eighteenth century is still the bottleneck of the history of political theory: the century that separates pre-economic theorists such as Machiavelli, Bodin and Hobbes from post-economic theorists such as Hegel, Mill and Marx. Political thinking became immeasurably much more complicated in the eighteenth century: and yet historians, after at least half a century of extremely judicious scholarship, still have difficulty explaining its significance for contemporary theory. Sagar's Adam Smith Reconsidered is an important contribution to the attempt to clarify (...) just how modern political theorists should look backward – without hastening back to the abstractions of the seventeenth century or remaining confined to particular involutions of the nineteenth century. Its specific originality is in drawing attention to two important ideas of Adam Smith, seldom seen clearly or at all, ‘the quirk of rationality’ and ‘the conspiracy of merchants’. Political theorists as well as historians of political thought will benefit from familiarising themselves with these ideas. (shrink)

My analysis of the constitutional foundations of judicial review has been criticized by Paul Craig; but his objections confuse the ‘constructive’ account of legislative intent I defend with the ‘literal’ conception (reflecting the views of individual legislators) I expressly repudiate. He thinks we must choose between legislative intent, literally conceived, and common law principle. This mistake exemplifies the peculiar character of Craig's ‘common law model’ of judicial review, in which the requirements of the rule of law, on one (...) hand, and the relevant statute, on the other, exist in separate mental worlds. That model is conceptually confused, rejecting the doctrine of ultra vires that (unqualified) legislative supremacy entails, and ultimately grounded in a wholly implausible view of the relationship between common law and statute. It subordinates both statutory text and purpose to common law doctrine, treated as largely self-contained and impervious to context. It ignores the interdependence of legislative and judicial power, impeding a genuine integration of statutory command and common law principle. (shrink)

The word “wisdom” has a multitude of different meanings. This occurs both in popular language and in academic circles. It has that in common with other words of special significance and grandeur in the many languages of our species—think of “justice”, “peace”, “love”, “beauty”, and “reality”. Consider these various meanings of the word “wisdom”: being wise beyond her years, wise old man, wise guy, wise use, the wisdom of the ancients, conventional wisdom, the wise judge, the wise old crone, the (...) three wise men, and so forth. Wisdom is associated with tradition, cleverness, moral rectitude, contemplation, resignation, wonder, keen insight, ripe old age, the received view, judicious balance, acute foresight, superior understanding, solace in time of trouble, and stoic endurance. The list could go on, but even just this much reveals a riot of meanings—and a great deal of confusion. Many of the things we think of as wisdom seem to be at odds with other things we think of as wisdom, and some seem wide of the mark, if not downright mistaken and wrong. (shrink)

Graham Walker boldly recasts the debate over issues like constitutional interpretation and judicial review, and challenges contemporary thinking not only about specifically constitutional questions but also about liberalism, law, justice, and rights. Walker targets the "skeptical" moral nihilism of leading American judges and writers, on both the political left and right, charging that their premises undermine the authority of the Constitution, empty its moral words of any determinate meaning, and make nonsense of ostensibly normative theories. But he is (...) even more worried about those who desire to conduct constitutional government by direct recourse to an authoritative moral truth. Augustine's political ethics, Walker argues, offers a solution--a way to embrace substantive goodness while relativizing its embodiment in politics and law. Walker sees in Augustinian theory an understanding of the rule of law that prevents us from mistaking law for moral truth. Pointing out how the tensions in that theory resonate with the normative ambivalence of America's liberal constitutionalism, he shows that Augustine can provide successful but decidedly nonliberal grounds for the artifices and compromises characteristic of law in a liberal state. Originally published in 1990. The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905. (shrink)

With the help of medicine and technology we are living longer than ever before. As human life spans have increased, the moral and political issues surrounding longevity have become more complex. Should we desire to live as long as possible? What are the social ramifications of longer lives? How does a longer life span change the way we think about the value of our lives and about death and dying? Christine Overall offers a clear and intelligent discussion of the philosophical (...) and cultural issues surrounding this difficult and often emotionally charged issue. Her book is unique in its comprehensive presentation and evaluation of the arguments—both ancient and contemporary—for and against prolonging life. It also proposes a progressive social policy for responding to dramatic increases in life expectancy. Writing from a feminist perspective, Overall highlights the ways that our biases about race, class, and gender have affected our views of elderly people and longevity, and her policy recommendations represent an effort to overcome these biases. She also covers the arguments surrounding the question of the "duty to die" and includes a provocative discussion of immortality. After judiciously weighing the benefits and the risks of prolonging human life, Overall persuasively concludes that the length of life does matter and that its duration can make a difference to the quality and value of our lives. Her book will be an essential guide as we consider our social responsibilities, the meaning of human life, and the prospects of living longer. (shrink)

The tension between Kant’s egalitarian conception of persons as ends in themselves and his rejection of the right of revolution has been widely discussed. The crucial issue is more fundamental: Is Kant’s defense of absolute obedience consistent with his own principle of legitimate law, that legitimate law is compatible with the Categorical Imperative? Resolving this apparent inconsistency resolves the subsidiary inconsistencies that have been debated in the literature. I argue that Kant’s legal principles contain two distinct grounds of obligation to (...) obey political authority. One lies in his metaphysical principles of law, according to which there is only a duty to obey legitimate law or fully legitimate authorities. Another lies in his moral-pragmatic principles. He believes that membership in the state helps improve one’s character by counter-balancing one’s immoral inclinations. This is his ultimate ground for obedience to de facto, imperfectly legitimate states. On this ground, the duty to obey an actual state is conditional. Kant’s strong statements about the duty to obey actual states is explained by the ease with which he thinks the relevant condition is met by extant states. The apparent ambiguities in his discussion of obedience point to some important philosophical and historical shortcomings of his analysis of the division of govemmental powers and of judicial competence which hamper his analysis of the duty to obey the state. (shrink)

This paper seeks to articulate a conception of justice in reparations for victims of human rights violations when the aim is to repair a large number of cases, as opposed to individual, isolated cases. It starts with an effort to establish some semantic clarity by trying to distinguish between two different contexts for the use of the term “reparations”. It discusses some of the problems with merely transplanting the ideal of compensation in proportion to harm from its natural home in (...) the resolution of individual judicial cases, and using it as a standard of justice for massive reparations programs. Instead, it argues in favor of thinking about justice in the context of massive cases in terms of the achievement of three goals, namely, recognition, civic trust, and social solidarity — three goals that are intimately related to justice. Finally, it tries to shed light on the basic trade-offs that accompany some of the choices that have to be made in the process of constructing a comprehensive and coherent reparations program. (shrink)

For decades, Anderson has been pressing critical theorists and literary scholars to acknowledge the inescapably normative dimensions of their work. Through careful attention to rhetorical styles, she has persuasively argued that epistemological positions and social theories are tethered to “characterological” judgments—to implicit endorsements of ethos. Meanwhile, critical discourse has warmed to the claims of lived experience (the “turn to ethics,” the interest in “affect”), but the “ethical” has remained a negative movement, either as the critique of social and discursive structures (...) or as clearing space for the “other”—and “affect” has been construed as the pleasure and self-care that enable resistance to the pressure of these structures. The questions that galvanize ethical criticism (What is wrong with the way things are?) and theories of affect (How can I survive?) continue to evade the deeper one that Anderson sees as basic to any theorizing: How should I live?The lesson of Anderson's The Way We Argue Now is that ethics without ethos is shallow. In Psyche and Ethos, the lesson is that psychology without morality is benumbed. Though Anderson is characteristically judicious in her reconstruction of the arguments she opposes, there are several rhetorical targets in these lectures. The first is contemporary cognitive science, which pictures moral thinking as either the “belated” rationalization of decisions really made by “automatic” psychological processes or as a mechanism for eliminating “cognitive dissonance.” Anderson shows how these pictures assume an abstracted, “punctual” model of moral experience; their “deflationary” zeal ironically depends on an untenable ideal of moral voluntarism that is then speciously “debunked.” By contrast, novels are able to explore the temporal dimension of moral consciousness, especially through their representation of what she calls “moral rumination,” a concept further developed in her recent contribution to Character: Three Inquiries in Literary Studies. Anderson shows, moreover, that narrative fictions like The Winter's Tale, Middlemarch, and The Beast in the Jungle understand “belatedness” not as evidence for the superficiality of morality but as a distinct mode of moral recognition that can unfold only across time.Anderson worries that the new “eudaimonic” literary criticism, which explores “enabling moods,” unwittingly perpetuates the moral confusion of empirical psychology and “privileg[es] psychological over moral desiderata,” even as certain “psychological states” are “presented as morally desirable.” This contradiction is another iteration of one she has been confronting throughout her career: the strange incapacity of critical discourse either to recognize or to avow the normative claims—the elaboration of an ethos as good or valuable—with which it is nonetheless saturated. Still, the contradiction has been a defining feature of modern “therapeutic culture” (a formulation she employs): the neutral, functionalist descriptions of empirical psychology ostensibly bracket morality, yet some descriptions are inevitably coded as “better” or “worse,” and they are consistently harnessed to fully moral evaluations. It is rare to hear a literary theorist of Anderson's provenance reanimate, if indirectly, the criticism that Philip Rieff, Christopher Lasch, and Jackson Lears directed toward “therapeutic culture,” which has largely been forgotten or vulgarized by right-wing pundits. In essence, however, her plea is similar to theirs: she wants us to acknowledge that the moral life is integral to the “healthy” life; and she wants critics to stop dismissing it as epiphenomenal to either psychology or politics. She sees the novel, and the humanities more broadly, as the preeminent cultural vehicles for “clarifying” the moral life. (shrink)

In the standard analysis of economic institutions--which include social conventions, the working rules of an economy, and entitlement regimes --economists invoke the same theories they use when analyzing individual behavior. In this profoundly innovative book, Daniel Bromley challenges these theories, arguing instead for "volitional pragmatism" as a plausible way of thinking about the evolution of economic institutions. Economies are always in the process of becoming. Here is a theory of how they become. Bromley argues that standard economic accounts see (...) institutions as mere constraints on otherwise autonomous individual action. Some approaches to institutional economics--particularly the "new" institutional economics--suggest that economic institutions emerge spontaneously from the voluntary interaction of economic agents as they go about pursuing their best advantage. He suggests that this approach misses the central fact that economic institutions are the explicit and intended result of authoritative agents--legislators, judges, administrative officers, heads of states, village leaders--who volitionally decide upon working rules and entitlement regimes whose very purpose is to induce behaviors that constitute the sufficient reasons for the institutional arrangements they create. Bromley's approach avoids the prescriptive consequentialism of contemporary economics and asks, instead, that we see these emergent and evolving institutions as the reasons for the individual and aggregate behavior their very adoption anticipates. These hoped-for outcomes comprise sufficient reasons for new laws, judicial decrees, and administrative rulings, which then become instrumental to the realization of desired individual behaviors and thus aggregate outcomes. (shrink)

This article focuses on the training/operation course offered at the Nurse and Pediatric Nurse school of Montpellier University Hospital aiming to develop a training program based on a construction of learning through professional situations. Thinking differently the training system based on alternation between course and internship and questioning the meaning of professionalization is an opportunity to be seized in the context of health formations reengineering. In that respect, offering a dialectical-learning alternation in and through a situated and problematized activity (...) is a judicious perspective for Nurses and Pediatric Nurses training in order to give meaning to work-study by giving a real ambition for professional learning. (shrink)

Does, or should, social uprising lead to new legal form? Ukraine’s current situation following the Revolution of Dignity in 2013–2014, with continuing violent conflict in Donbas and Crimea, suggests that not only is it unclear how a ‘new’ form is assessed, but existing transitional policies and frameworks are unlikely to be clearly implemented and enforced. An alternative analysis of transformation is necessary to address the conflicting aftermath of uprising within a particular historical and cultural context. The transformation that is happening (...) in Ukraine is a continuum that is intellectual and psychological as much as reforming judicial systems and governance. Thinking transformation differently opens onto narratives, complexity of causes and a plurality of ideas of future, resolutions and justice. Such a shift in thought and analysis, informed by narratives and grounded research, is necessary in order to try to understand the current pursuit of justice in Ukraine. (shrink)