This chapter contains sections titled: Analogy and the Principle of Justice The Logical Form of Analogical Inference Limitations of Analogical Reasoning Challenges to Traditional Theory Analogical Reasoning and Normative Legal Theory References.

The market failures approach is amongst the most influential theories of business ethics. Its interest within the field is, in large part, a result of its rejection of moralism and any sort of applied ethics approach, favouring, in contrast, a focus on the institutionally embodied goal of economic activity, which it takes to be that of Pareto efficiency. From this articulation of the goal, or purpose, of markets, a set of efficiency imperatives are derived that are taken to comprise the (...) implicit morality of the market. However, the market failures approach has not adequately explained the basis of market actors’ moral motivation, that is, the reasons individuals have to self-consciously adhere to moral norms governing market transactions. This failure, I argue, stems from its misspecification of the purpose of the market. After explaining this failure to address the problem of moral motivation, I argue that a distinctive mode of freedom understood as a form of self-authorship is better seen as the purpose of the market, a goal that actually animates individual market participants. I then argue that this notion of freedom is intrinsically linked to a conception of responsibility and that this notion of responsibility can be more adequately conceptualized as involving a set of market virtues focused on promoting mutually beneficial transactions. Thus, the link between freedom and responsibility, stemming from an individual’s need to legitimize their freedom in a market context, provides the basis for a self-conscious sense of moral motivation. As such, this approach better captures the implicit morality of the market while also addressing the problem of moral motivation. (shrink)

Deryck Beyleveld has forged a theory of ethical rationalism that has made an important impact on legal and moral philosophy—that this collection of essays makes clear. He has not only refined and improved the original account developed by Alan Gewirth, but provides us with ethical rationalism’s most prolific defender today. One area of particular insight is Beyleveld’s many applications of ethical rationalism to practice and, most especially, to medical law and ethics which has been especially influential. This (...) work has set the bar for all proponents and critics alike. -/- We focus narrowly on a specific concern that we have with ethical rationalism: its primacy of rationality over other characteristics, such as our emotions. This is not to deny the importance of reason in our thinking about law and ethical concerns. But we have concerns with any view that holds that reason is the only key to how any tensions should be resolved. Such a position claims for reason a privileged status it does not have or merit. One problem for us is that, in our view, ethical rationalism does not appear to adequately consider the importance of emotions and so it does not provide a satisfactory account of law and morality as a result. We examine this concern in the first part of our chapter. -/- This chapter’s second part raises concerns with the application of ethical rationalism as a model for understanding sexual offences. We highlight both the need to foreground emotion in order to understand the current law, as well as the dangers from a normative perspective of appearing to marginalise the role of emotion in sexual offences. Not only would a prioritisation of rationality fail to reflect the role emotion can play in current rape law, but we would argue, is particularly problematic in this area of law in terms of promoting justice. In summary, Beyleveld’s ethical rationalism exercises an important impact on legal theory and legal practices. Nonetheless, we raise some reservations about its connection to these impacts that lead us to support revisions to this approach. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Ministers of the Law: A Natural Law Theory of Legal AuthorityThomas J. BushlackMinisters of the Law: A Natural Law Theory of Legal Authority Jean Porter Grand Rapids, Mich.: Eerdmans, 2010. 368 pp. $30.00Jean Porter’s most recent book is the fruit of her participation with the Emory Center for the Study of Law and Religion since 2005. In this project she undertakes two interrelated tasks. (...) First, she provides compelling reasons for Christian ethicists to engage in questions internal to the discipline of jurisprudence. Second, she demonstrates how a natural law theory grounded in the work of the medieval scholastics can address some of the questions of contemporary jurisprudence. Readers familiar with her previous work will be delighted that she has extended her constructive account of natural law into the realms of jurisprudence and in the process also engages cultural psychology, rhetoric, political philosophy, and international law.Porter begins her engagement with jurisprudence in chapter 1 by noting a paradox recognized by many legal philosophers in the Anglophone world. Legal systems, as they have developed in the West, are characterized by a high degree of autonomy and independence vis-à-vis other social dynamics such as politics or morality. At the same time, however, no legal system can function in complete isolation from considerations of politics and morality. How can we account for the paradoxical autonomy of legal authority? Porter suggests that a scholastic account of natural law can provide a rationally defensible solution to this paradox by developing an account of natural authority (in chapter 2).The force of Porter’s argument rests on the capacity of her account to justify political and legal authority as a natural expression of the authority that any community exercises vis-à-vis its individual members. A community’s authority over its members is justified on the grounds that in prescribing or prohibiting particular acts, it must appeal to claims that could potentially be recognized as justifiable by any rational member of that community. The concept that creates this important hinge between an individual’s good and the good of the community is, of course, the common good. Scholars interested in the concept of the common good will find that her reflection upon it is both rooted deeply in the Christian tradition and applied with fresh insight to the realm of politics (chapter 3) and law (chapter 4). [End Page 210]One potential objection to Porter’s account of natural law could arise in response to her insistence that natural inclinations “underdetermine” the normative content of a natural law morality, leaving her account open to charges of cultural relativism or of being merely descriptive as opposed to normative. However, in this work she is able to turn these criticisms into assets for her account of natural law. She shows (successfully, I believe) how her theory of natural law is able to account for the plurality of moral, political, and legal systems that exist in our world today while still providing normative grounds for critiquing existing social systems. And in chapter 5 she demonstrates how nonderogable, jus cogens principles can be developed from her account of natural law and applied to the field of international law and human rights. In fact, the final section left me hungry for further development of her insights regarding the relationship between natural and international law.This book is written with the same rigorous logic and careful research that has made Porter one of the leading scholars of natural law theory in the field today. As such, this book would be suitable for academics in a wide variety of fields, such as law, political theory, and of course Christian ethics, or for advanced graduate students. It is most certainly a groundbreaking work for demonstrating how a theological account of natural law can engage in constructive dialogue with legal theory and politics at both a theoretical and a practical level.Thomas J. BushlackUniversity of St. ThomasCopyright © 2012 The Society of Christian Ethics... (shrink)

It will be argued, firstly, that there is a link between the legal validity of a norm and the rational justifiability of a requirement that judges should apply this norm, based on a normative conception of legal validity and the postulate that judges should act as rational persons; secondly, that rational justifiability of legal norms requires the construction of a legal system in a model of principles that differs from theories, e.g., of Kelsen, Hart, Dworkin (...) and Alexy, which are not fully adequate for a normative conception of law. (shrink)

One aspiration of an analytic jurisprudential theory is to provide an account of how legal obligations arise, including the legal obligation of judges to apply only legally valid norms when adjudicating cases. Also, any fully adequate theory should enable a solution to a ‘chicken-egg’ puzzle regarding legal authority: legal authority can exist only in virtue of rules that authorize it, but such rules require a legal authority as their source. Which came (...) first? This article argues that it is difficult to see how a particular type of positivist theory (featuring a fundamental norm that plays certain roles) can solve the puzzle and also account for the aforementioned adjudicative duty. The challenge can be framed in terms of the need to be able to derive a legal ‘ought’ (applying to courts) from only ‘is’-statements expressing social facts, where the requisite derivation cannot rely on what John Searle has called ‘institutional facts’. (shrink)

GE Moore vehemently defended the view that what actually happens and not what we, even reasonably, expect to happen, determines what we ought to do. ‘The only possible reason that can justify any action’, Moore writes, ‘is that by it the greatest possible amount of what is good absolutely should be realized’. Moore is an objectivist about reasons and duties: The world and not our view of it gives us reasons to act; the way the world is, and not the (...) way we think it is, determines what we ought to do. In his new book Jonathan Dancy agrees: the world itself has normative significance, reality, as Dancy puts it, is practical. On this, most general level Dancy and Moore agree. But unlike Moore’s, Dancy’s objectivism is not embedded in any particular normative theory. And whereas Moore strikes me as hard-nosed, and his position as sharp-edged, Dancy’s position looks, in comparison, softer and subtler. Contrasting the two positions will help to bring out these features of Dancy’s view. But it will also help to explain the worry that Dancy’s view might have departed too far from its origin. (shrink)

The Humean Theory of Reasons, according to which all of our reasons for action are explained by our desires, has been criticized for not being able to account for “moral reasons,” namely, overriding reasons to act on moral demands regardless of one's desires. My aim in this paper is to utilize ideas from Adam Smith's moral philosophy in order to offer a novel and alternative account of moral reasons that is both desire-based and accommodating of an (...) class='Hi'>adequate version of the requirement that moral demands have overriding reason-giving force. In particular, I argue that the standpoint of what Smith calls “the impartial spectator” can both determine what is morally appropriate and inappropriate and provide the basis for normative reasons for action—including reasons to act on moral demands—to nearly all reason-responsive agents and, furthermore, that these reasons have the correct weight. The upshot of the proposed account is that it offers an interesting middle road out of a dilemma pertaining to the explanatory and normative dimensions of reasons for informed-desire Humean theorists. (shrink)

The central problem of the ‘normativity of law’ concerns how legal rules or directives give us reasons for actions. The core of this question is how something that is external to the agent, such as legal rules or directives, can be ‘part of the agent’, and how they can guide the agent in performing complex actions (such as legal rule-following) that persist over time. David Enoch has denied that the normativity of law poses any interesting challenge to (...) theories of law. He argues that law provides reasons for actions in terms of what he calls triggering-reasons and he advances the view that because there are many circumstances in which reasons are triggered, law does not pose a special challenge. According to Enoch, once we understand the way that triggering reasons operate, we can understand how legal rules and directives provide us with reasons for actions. In §II of this paper, I set the stage for the debate and establish a set of principles that emerge from the common sense of view of reasons for actions and argue that any theory of reasons for action should provide a coherent explanation of these key principles. I focus on the idea that a satisfactory account of reasons for action should also explain reasons in actions. In §III I explain briefly the different theories of reasons for action and locate Enoch’s conception of reasons for action as triggering-reasons within this theoretical framework. In §IV I show that Enoch’s conception of reasons for actions does not explain some of the key features or principles that emerge from our common sense view of reasons for action and nor does it explain reasons in actions.Resumen:El problema central de la ‘normatividad del derecho’ versa sobre cómo las reglas o directrices jurídicas nos dan razones para la acción. El núcleo de esta cuestión reside en cómo algo que es externo al agente, tal como las reglas o directrices jurídicas, pueden ser ‘parte del agente’, y cómo pueden guiar a ese agente al llevar a cabo acciones complejas (tal como la obediencia de las reglas) que persisten en el tiempo. David Enoch ha negado que la normatividad del derecho presente algún reto interesante a las teorías del derecho. Arguye que el derecho provee razones para la acción en términos de lo que él llama razones detonantes (triggering-reasons) y propone la perspectiva de que, dado que hay muchas circunstancias bajo las cuales se detonan las razones, el derecho no plantea ningún reto especial. De acuerdo con Enoch, una vez que entendemos la manera en que operan las razones detonantes, podemos comprender cómo las reglas y directrices jurídicas nos proveen razones para la acción. En la sección II de este artículo, fijo el escenario para el debate y establezco una serie de principios que emergen de la visión de sentido común sobre las razones para las acciones, y sostengo que cual- quier teoría de las razones para la acción debería proporcionar una explicación coherente de estos principios clave. Me centro en la idea de que una concepción satisfactoria de las razones para la acción también debe- ría explicar las razones en las acciones. En la sección III, explico brevemente las diferentes teorías de las razones para la acción y ubico la concepción de Enoch de razones para la acción como razones detonantes (triggering-reasons) dentro de este marco teórico. En la sección IV muestro que la concepción de Enoch de razones para las acciones no explica algunas de las principales características o principios que emergen de nuestra visión de las razones para la acción basada en el sentido común, ni tampoco explica las razones en las acciones. (shrink)

This collection of essays represents a sample of the work carried out on the various urgent issues arising from the contemporary "war in terror" by researchers in the Department of Politics and International Relations, Swansea University UK and/or who attended the 2005 conference on politics and ethics at the University of Southern Mississippi (Gulf Coast). Certain specific topics are obviously prompted by this general theme; others dealt with in this book are perhaps not as obviously connected to it - though (...) they are no less important for that. This book is therefore intended to cover some ground in both types of topic and it is to be hoped that its contents will stimulate further reflection and writing on the deep controversies that recent events in world politics have stoked. However misguided much of the debate has been, many have contended that the present era is witnessing a "clash of civilisations", in which fundamentally different value-systems confront each other with their mutually opposed and antagonistic views of the world. This position often undergirds a moral relativism, which denies that there are any universal values: all we have, according to this outlook, are the different values of different cultures seeking (insofar as they "clash") to impose themselves on others. In the first essay, James Beard counters this argument with a case for what he calls a "thin universalism", a relatively sparse but powerful set of fundamental values which can credibly be demonstrated to have universal application.Many who supported the 2003 invasion of Iraq now oppose it, not on the grounds that they were wrong at the outset but that hindsight and subsequent events have given them new reasons to revise their judgements. This has led some to think that arguments about whether a war is just, and justified, can very often only be satisfactorily made "down the line", thus excusing initial support for a conflict which thereafter goes badly wrong. In her article, Christine Stender reminds us of many of the considerations that were available in 2003 itself which readily led to just-war arguments against launching the invasion at the time. It may be easy for the passage of time to cause us to forget those factors. But, given that we can only become more adept at making just-war judgements by reflecting on past experience, it is crucial not to let them disappear in the morass of subsequent experience. Arguably, the Abu Ghraib scandal did more than any other single event to undermine what moral credibility the American occupation of Iraq ever had. It certainly raised acute questions about the conception of "virtue" that the role of combatant in war ought to necessitate and, in his essay, J. Joseph Miller subjects this issue to close philosophical scrutiny, with particular focus on the ethics of torture. Traditional just war theory has been composed of two elements: jus ad bellum, which sets out moral criteria which may sanction the resort to war, and jus in bello, which provides moral rules for its actual conduct. Recent events, and in particular the tragically chaotic situation of post-invasion Iraq, have helped to make the case for a third element: jus post bellum, which deals with the rights and responsibilities of just combatants with respect to the pursuit of a just peace once conflict has ended. This remains an under-researched area and, in their article, Mark Evans and Christine Stender introduce a wide-ranging set of considerations towards the construction of an adequate account of jus post bellum. A concept that has surged to the fore in recent times has been that of a "failed state", which has been invoked as part of arguments for "humanitarian intervention." (Afghanistan is perhaps the most obvious and pertinent example.) It is, however, a highly contentious concept and many think it has nothing other than ideological, polemical value. Whilst admitting that it is prone to such (mis)use, Mark Evans argues, in his essay, that it can be given a determinate and useful normative content, even if it does not necessarily sanction the kind of foreign policies which certain Western leaders have thought it does. Most liberal democracies have responded to the "terror threat" by introducing emergency legislation, or by otherwise suspending in some way what they would "ordinarily" have regarded as inviolable basic liberties and legal safeguards. Nazeer Patel argues that this dangerously undercuts the moral authority that these states claim for themselves and urges that we rethink how liberal democracy should appropriately respond to terrorism; it may take courage not to "overreact" against it, but he plausibly suggests a more measured and morally preferable attitude for it to take. Finally, in her essay, Claire Delisle focuses on one of the more bitter conflicts within a liberal democracy of recent times which has, it seems, been resolved in favour of peaceful accommodation: that between the Nationalist and Unionist communities in the north of Ireland/Ulster. The full story of how this peace became possible has yet to be fully told, and she adds a vital element to the tale, of how incarcerated combatants developed attitudes, strategies and a culture which built the foundations for a process that eventually brought "The Troubles" to what, it is to be hoped, is a permanent end. With the exception of the editor's contributions, the research which is published here is the product of the intellectual labours of scholars who are in the early stages of their careers. This volume is, therefore, a compendium of work in progress and the authors hope that this publication will help to further their reflections; certainly, the issues with which they engage are a long way indeed from being exhausted in terms of the scholarly attention they demand. Obviously, their appearance together in the same volume should not be taken to imply that any of the contributors endorse anything of what any of the others argue. (shrink)

There is perhaps no more widely shared conviction in contemporary metaethics, even among those who hold otherwise divergent views, than that practical normativity must be capable of being naturalized (i.e., captured fully within a metaphysically naturalist worldview). My aim is to illuminate the central reasons for skepticism about this. While certain naturalizing projects are plausible for very limited purposes, it is unlikely that any can provide everything we might reasonably want from an account of goodness and badness, rightness and (...) wrongness, and unqualified reasons for acting—at least if we are unwilling to accept certain deflationary or bullet-biting moves. Some naturalizing views can be shown to fail outright to capture the relevant normative facts or properties, while others have more promise but can also be seen to have certain limitations and costs, failing to capture elements that some of us take to be important to an adequate theory of practical normativity. There are, of course, far more naturalizing moves than can be considered here, so the aim is not to establish the truth of nonnaturalism through a process of elimination. But I hope to say enough to bring out the central worries about naturalizing projects and to pose some challenges that apply more widely, with the aim of showing that ethical nonnaturalism remains an attractive and well-motivated option at least for those of us who reject both nihilism and various forms of ethical deflation. (shrink)

This article proposes a formal analysis of a fundamental aspect of legal reasoning: dealing with normative conflicts. Firstly, examples are illustrated concerning the dynamics of legal systems, the application of rules and exceptions, and the semantic indeterminacy of legal sources. Then two approaches to cope with conflicting information are presented: the preferred theories of Brewka, and the belief change functions of Alchourrón, Gärdenfors, and Makinson. The relations between those approaches are closely examined, and some aspects (...) of a model of reasoning with normative conflicts are outlined. Since this model takes into account an ordering of the involved regulations, criteria to order legal norms are finally specified. (shrink)

This article supports H. L. A. Hart's “any reasons” thesis (defended consistently from the first edition of The Concept of Law in 1961 to the Postscript to the second edition of 1994) that legal officials may accept law for any reasons, including non‐moral reasons. I develop a conception of non‐moral aesthetic ideals of official conduct which may provide legal officials with reasons to accept and apply even morally iniquitous law. I use this conception in order to rebut Gerald (...) Postema's and Joseph Raz's criticisms of Hart's view, and suggest that my revisions offer reasons for renewed confidence in Hart's account of law's normativity. (shrink)

Offers analysis of MacCormick's positivistic account of legal reasoning, partially in response to Dworkin's claim that positivism is inadequate as a theory of law because it cannot account for the nature of legal reasoning. Having analyzed MacCormick's theory and having applied it to some cases, we are now ready to evaluate it. My conclusion is that inmany cases MacCormick's theory can indeed give the judge the kind of concrete guidance he needs (...) when with a hard case. The reason why MacCormick's theory is successful in this regard is that it offers the judge a reasonably firm ranking of the interpretive arguments, and that it is rather easy to understand and apply. The former circumstance is of course important - unless we rank the interpretive arguments, the theory simply will not be able to give the judge any guid ance at all. But the latter circumstance is also cause itmeans that judges will be able to apply the theory even be though they may lack a deep understanding of the relevant field of substantive law. Judges, as is well known, are usually gen eralists, not experts in any particular field. So unlike Ronald Dworkin's subtle and intriguing theory of adjudication,80 MacCormick's theory might actually be applied by real judges in any jurisdiction. This must be considered quite an advantage. To be sure, applying MacCormick's theory to a concrete case is not always easy. But the difficulties we have encountered in applying the theory have been difficulties that would create problems for any theory of legal reasoning. Moreover, with one these difficulties can be handled within the frame work of the theory as it stands. For example, the problem of choosing between a technical and an ordinary version of plain exception which we encountered in the Boxer case, can in most cases be solved by reference to the value that underlies the textual approach, namely predictability. The problem about intentionalist arguments, which we encountered in the case of the Statutory Share, can be solved by simply adding the cate gory of intentionalist arguments toMacCormick's typology of interpretive arguments, or perhaps by placing intentionalist arguments in the category of textual arguments.81 The problem of linguistic indeterminacy, however, which we encountered in theWeber ase, appears to be more or less impossible to solve. If and to the extent that the words that occur in the statute are vague or ambiguous - in their ordinary or in their technical meaning, or in both - the value of the textual approach is clearly reduced. The judge must then proceed to consider systemic and teleological arguments in that order. (shrink)

GE Moore vehemently defended the view that what actually happens and not what we, even reasonably, expect to happen, determines what we ought to do. ‘The only possible reason that can justify any action’, Moore writes, ‘is that by it the greatest possible amount of what is good absolutely should be realized’. Moore is an objectivist about reasons and duties: The world and not our view of it gives us reasons to act; the way the world is, and not the (...) way we think it is, determines what we ought to do. In his new book Jonathan Dancy agrees: the world itself has normative significance, reality, as Dancy puts it, is practical. On this, most general level Dancy and Moore agree. But unlike Moore’s, Dancy’s objectivism is not embedded in any particular normative theory. And whereas Moore strikes me as hard-nosed, and his position as sharp-edged, Dancy’s position looks, in comparison, softer and subtler. Contrasting the two positions will help to bring out these features of Dancy’s view. But it will also help to explain the worry that Dancy’s view might have departed too far from its origin. (shrink)

In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly legal conception from the (...) rather narrow viewpoint of the study of law's normativity, it is less attractive than the latter from the broader viewpoint of the study of the nature of law. I then distinguish between a moral and a strictly legal conception of the normative force of legal justification, and argue that legal positivists may without contradiction embrace the moral conception, and that therefore the analysis of the normative force of legal justification need not be a problem for legal positivists. I conclude that, on the whole, we have reason to prefer legal positivism to natural law theory. I begin by introducing the subject of jurisprudence . I then introduce the natural law/legal positivism debate, suggesting that we ought to understand it as a debate about the proper way to explicate the concept of law . I proceed to argue that legal decision‐making is a matter of applying legal norms to facts, and that syllogistic reasoning plays a prominent role in legal decision‐making thus conceived . Having done that, I discuss law's normativity , the normative force of legal justification , and the relation between the former and the latter . I conclude with a critical comment on Joseph Raz’ understanding of the question of law's normativity. (shrink)

In his “Integrity: Justice in Work Clothes,” Postema assumes the task of showing that integrity is a genuine moral value of political communities, distinct from other values such as justice and fairness. Postema’s conception of integrity borrows much from Dworkin’s, but also differs from it in an important respect. As anyone familiar with Dworkin’s theory would expect, Postema’s idea of integrity is a kind of fidelity in laws (“practical directives”) and policies to principles arising from what Dworkin famously called (...) “past political decisions of the community.” It is fidelity to a conception of justice that fits and unifies these past decisions (and present ones), a conception the community can be viewed as forming. Postema’s innovation is to see integrity as “complex,” incorporating both “respect” for the past and also “regret.” Because of regret, any set of principles fitting the past will have some compromised coherence – indeed, some incoherence. Regret is consistent with preserving some currency for a morally incorrect decision, but limiting its force. The ultimate justification for viewing integrity as a virtue of law, Postema argues, is that it serves justice and fidelity, which he conceives of as other, more fundamental, values – provided, that is, that the principles express a “morally meaningful” conception of justice. Integrity thus understood allegedly binds officials to precedents in common law legal systems. So if Postema can succeed in his argument that integrity is a genuine moral value, he will have provided a moral justification for following precedent, even when the precedent is mistaken. Moreover, it will be a new kind of justification, an “internal justification” – one that provides a good reason for what Postema assumes is the rule of a precedent case. Success in his argument would be an important contribution to legal theory above and beyond the justification of precedent. Success would show that an interpretive conception of the nature of law also provides moral legitimacy to the resulting laws so conceived. Along with a stout defense of an interpretive theory of law – in particular, an integrity theory of law -- which Postema does not attempt, success would be the key to defending the widespread intuition that legal claims are not just formally normative, or normative in some special legal sense, but robustly – and so, morally – normative. Reasons for complying with law, properly understood, and for applying and enforcing it would be shown to transcend the realm of the merely prudential and the contingent. The conclusion of deep engagement with the details of Postema’s rich and intricate argument, unfortunately, reveals that it fails in its objective. Postema does not succeed in establishing that integrity is a distinct moral value of political communities. Moreover, the setting in which it is plausible that past principles morally justify following precedent is so special and (to some extent) ideal that Postema cannot be credited with offering a new justification for following precedent in actual common law systems, in the real world of the common law. (shrink)

This paper describes a model of legal reasoning and a logic for reasoning with rules, principles and goals that is especially suited to this model of legal reasoning. The paper consists of three parts. The first part describes a model of legal reasoning based on a two-layered view of the law. The first layer consists of principles and goals that express fundamental ideas of a legal system. The second layer contains legal (...) rules which in a sense summarise the outcome of the interaction of the principles and goals for a number of case types. Both principles, goals and rules can be used in legal arguments, but their logical roles are different. One characteristic of the model of legal reasoning described in the first part of the paper is that it takes these logical differences into account. Another characteristic is that it pays serious attention to the phenomena of reasoning about the validity and acceptance of rules, respectively principles and goals, and about the application of legal rules, and the implications of these arguments for the use of rules, principles and goals in deriving legal conclusions for concrete cases.The second part of the paper first describes a logic (Reason-Based Logic) that is especially suited to deal with legal arguments as described in terms of the previously discussed model. The facilities of the logic are illustrated by means of examples that correspond to the several aspects of the model. (shrink)

Per the standard reading of his view, Hart held that the legally valid norms of any legal system are those identified as such by the criteria of validity effectively accepted in common by the system's officials. Here, I focus on the presupposition underlying this Hartian account of legal facts – namely, that the officials of any legal system share a perspective that fixes the identity of their system's legally valid norms. Below, I hope to establish the (...) appeal of this presupposition and the attendant Hartian project of providing an account of the identity of the legally valid norms of any legal system. Nonetheless, as I explain, the phenomenon of disagreement that Ronald Dworkin describes threatens Hart's crucial presupposition, thereby posing a mortal threat to his account of legal facts. Moreover, as I hope the following survey illustrates, the phenomenon of disagreement similarly threatens many other contemporary theories of law, for these theories join the project of providing a Hartian account of legal facts. A final objective of this survey is to highlight two mutually exclusive strategies for responding to the phenomenon of disagreement: rejecting the Hartian presupposition and commitment to legal facts or affirming this Hartian project by explaining how officials share a legal fact-fixing perspective despite disagreeing about their system's criteria of validity. (shrink)

One of the deepest and longest-lasting debates in ethics concerns a version of the Euthyphro question: are choiceworthy things choiceworthy because agents have certain attitudes toward them or are they choiceworthy independent of any agents’ attitudes? Reasons internalists, such as Bernard Williams, Michael Smith, Mark Schroeder, Sharon Street, Kate Manne, Julia Markovits, and David Sobel answer in the first way. They think that all of an agent’s normative reasons for action are grounded in facts about that agent’s pro-attitudes (e.g., (...) her desires, valuing states, normative judgments). According to the most popular brand of internalism, idealizing internalism, an agent’s reasons are grounded, not in her actual pro-attitudes, but rather in what her pro-attitudes would be in suitably idealized conditions. Idealizing internalists presuppose that, for any agent with an irrational set of attitudes, there is one uniquely rational set that that agent would have if she were to undergo the relevant idealizing process. I argue that this assumption is false and that it raises two puzzles for idealizing internalism: one about the existence of practical reasons and another about their normative weight. I argue that idealizing internalists have an adequate solution to the first puzzle but not the second. Indeed, when they try to solve the second puzzle, they confront a dilemma. This second puzzle and the associated dilemma thus constitutes a powerful, but so far unnoticed, difficulty for idealizing internalism. (shrink)

Recently, Walter Sinott-Armstrong and Justin Snedegar have argued for a general contrastivist theory of reasons. According to the contrastivist account of reasons, all reasons claims should be understood as a relation with an additional place for a contrast class. For example, rather than X being a reason for A to P simpliciter, the contrastivist claims that X is a reason for A to P out of {P,Q,R…}. The main goal of this paper is to argue that the contrastivist (...) account of reasons will be ill-fitted for accommodating certain features of moral reasons. In brief, the reason why the contrastivist analysis fails is that it cannot adequately allow for cases of morally correct whole-hearted action—cases where consideration of any alternate course of action would be misguided. But, if all consideration of alternate courses of action is misguided, then it is hard to see how one can set the relevant contrast class that is essential to the contrastivist view—any contrast class will seem out of place. In addition, I address some of the arguments that have been given in favor of the contrastivist account of reasons and argue that there are at least two ways that the non-contrastivist can respond to these arguments. (shrink)

Linking theses of Plato, Wittgenstein, and Weber, section I argues that identification of central cases and settling of focal meanings depend upon the theorist's purpose and, in the case of theory about human affairs—theory adequately attentive to the four irreducible orders in which human persons live and act—upon the purposes for which we intelligibly and intelligently act. Among these purposes, primacy is to be accorded to purposes which are, as best the theorist can judge, reasonable and fit to (...) be adopted by anyone, the theorist included. Section II defends the reasonableness of practical and moral judgments, against Michael Perry's ultimately nihilist claims that egoism's challenge to moral normativity has gone unanswered and that “reason for A” does not entail “reason for” anyone else. Section III takes up Steven Smith's suggestion that such subjectivism is encouraged by the talk in Natural Law and Natural Rights of “pursuing goods,” talk which is individualistic and neglectful of persons, inimical to an understanding of friendship, and impotent in the face of egoism. Here as elsewhere the key is to grasp that understanding any basic or intrinsic human good is to understand it as good for anyone like me and thus—since as I instantiate and embody a universal, viz. human being—as a good common to anyone and everyone. Section IV argues that common good gives reason for exercise and acceptance of authority, and for allegiance, even in time of breakdown. Section V argues that natural law theory is no more dependent on affirming God's existence than any other theory is, in any of the four orders of theory, but equally that is not safe for atheists. For, like any other sound theory, it suggests and is consistent with questions and answers about its grounds, in this case about the source of its normativity and of the human nature that its normative universals presuppose and affirm; and the answers are those argued for, too abstemiously, in the last chapter of NLNR and, more adequately, in the equivalent chapter of Aquinas. (shrink)

In lieu of an abstract, here is a brief excerpt of the content: Kant's Tribunal of Reason: Legal Metaphor and Normativity in the Critique of Pure Reason. Cambridge: Cambridge University Press, 2020. Pp. 208. Hardback, $105.00. -/- Even those with a passing knowledge of Kant's system will recognize his sustained use of legal metaphor and his appeal to lawfulness as a beacon of philosophical progress. He famously begins one of the most important (and impermeable) sections of the Critique (...) of Pure Reason with the juridical distinction between quid juris (what is the law) and quid facti (what is the fact) (A 84/B 116), insisting—against the empiricists—that the critique of our cognitive faculty must speak to the former and requires a Transcendental Deduction of the categories. In her book, Sofie Møller delves into the historical context and philosophical significance of such legal metaphors to reveal that their roots spread to the deepest foundations of Kant's project. In doing so, she contends that we should understand "philosophical systematicity as legal systematicity" (15). According to Møller, to accept this reading of Kant is to acknowledge that the legal system provides not just one helpful type of metaphor to be appreciated alongside many others, but the only proper symbol of the abstract nature of reason itself (173).For those interested in Kant's engagement with the natural-rights theory that prevailed during his lifetime, or in his familiarity with the concrete legal practices of eighteenth-century European courts, Møller's book proves to be thoroughly researched and informative. As the first English-language book-length study providing a comprehensive account of the legal aspects influencing Kant's system, it should serve as a valuable catchall resource. There are limits to its accessibility, however, as familiarity with basic legal distinctions—e.g. between civil and criminal codes—is assumed, and Latin terms and phrases often go untranslated. At times, this makes for a difficult intersection between the arduousness of Kant's own prose and the equally technical legal terminology that is meant to explain it. However, this barrier is mitigated by Møller's own interpretive work, which cautions that we should not let indeterminate legal terminology fix too much in our reading of Kant's texts, especially when considering the Transcendental Deduction and its reliance on the quid juris/quid facti distinction. As she concludes at the end of chapter 3, the procedure of legal deduction that Kant invokes "could be an investigation, an exposition, a thorough consideration, a review, explanation, description, account, dispute or procedure" (64). Thus, despite Kant's historically demonstrable familiarity with legal-deduction writings, on their own, they "do not present a sufficiently uniform argument structure to settle the question of the structures of the two versions of the transcendental deduction" (64). This observation serves both as a general warning as well as a criticism of Dieter Henrich's approach to Kant's system, which popularized attention to legal metaphor in Kant scholarship in the twentieth century. For Møller, little philosophical insight is won through Henrich's approach, since it "places too much weight on the importance of an origin" (60), taking its cue from a particular type of legal deduction whose assumption is unsupported, and which cannot be accurately projected onto Kant's text. As Møller argues, "The validity of the categories is not only grounded in their origin in pure apperception but in their being the necessary structures in the synthesis which creates objects of experience, which is an act of pure apperception" (60). Møller's suggestion, instead, is to read the Deduction as adopting the twofold structure of "judicial imputation," which does a more faithful job of capturing the structuring activity that Kant accords to the understanding. With the latter reading, emphasis shifts from whether the categories' application to objects of experience is valid because of their a priori origin, to the spontaneous activity of the judging subject as the originator of experience (75). Part of what is unique about this approach is that it does not read the... (shrink)

Cosmopolitanism in normative theory of transnational justice is often characterized by the thesis that the moral and legal status of states must be entirely derived from the moral status of the individuals who constitute them. Although the thesis itself is rather indeterminate in substantive and analytical content, it is generally understood as the claim that states should not be granted the status of moral and legal agents sui generis. This article argues that such a view is (...) analytically and methodologically misleading, and that any fruitful approach towards a liberal theory of transnational justice must face the challenge of coming up with a more complex concept of statehood, and acknowledge that in international relations and international law states are collective moral agents in their own right that can be addressees of genuinely collective forms responsibility. The argument starts with a critical examinations of two common interpretations of the cosmopolitan thesis, a reductivist reading, which suggests that we can reduce the moral and legal status of states to the rights and duties of the individuals (section I), and a methodological reading, which suggests that the moral status of individuals must based on the acknowledgment of “universal” individual rights (section II). For different reasons, both readings are argued to fail. Section III then presents an outline of how to conceive of states as agents that possess moral and legal status sui generis and be addressees of collective responsibility. Keywords : cosmopolitanism, statism, ethical individualism, methodological individualism, collective agents, collective responsibility (Published online: 25 August, 2008) Citation: Ethics & Global Politics 2008. DOI: 10.3402/egp.v1i3.1859. (shrink)

In at least two of his writings, F. S. C. Northrop some time ago suggested an interpretation of the spiritual foundations of Oriental and Occidental civilization which he used as a basis for understanding, among other things, their differing approaches to moral and legal order. Rooted primarily in Biblical and Greek sources, the West, he said, has concentrated on and developed the theoretic component of experience. This component is one wherein the nature of things is taken to be, not (...) the directly observable material of sense and immediate experience, but rather that which is designated by theory through the rational construction of hypotheses and theories. Nature, so to speak, is not the nature found in the directly experienced, but that postulated or inferred by reason and science as lying “behind” or “above” direct experience and accounting causally for it. (shrink)

Leading theories of practical reason can be grouped into one of four families: psychologism, realism, compatibilism, and Aristotelianism. Although there are many differences among the theories within each family, I ignore these in order to ask which family is most likely to deliver a satisfactory philosophical account of reasons for action. I articulate three requirements we should expect any adequate theory of practical reason to meet: it should account for how reasons explain action, how reasons justify (...) action, and how an agent can act for the reason that justifies her action. Only the Aristotelian theory, however, can meet all three requirements. It avoids the problems that plague the other theories by grounding reasons neither in psychological states nor in facts totally independent of the agent in question, but in the nature of the kind of creature the agent is. Our explanations of action need descend to the biographical only when explaining why a human being does not act in ways characteristic of her kind. The Aristotelian view of practical reason, then, appears to be the most promising program for future work. (shrink)

This paper explores what the epistemic account of vagueness means for theories of legal interpretation. The thesis of epistemicism is that vague statements are true or false even though it is impossible to know which. I argue that if epistemicism is accepted within the domain of the law, then the following three conditions must be satisfied: Interpretative reasoning within the law must adhere to the principle of bivalence and the law of excluded middle, interpretative reasoning within (...) the law must construe vague statements as an epistemic phenomenon, and epistemicism must be expanded to include normative considerations in order to account for legal theories that are consistent with the first two conditions. The first two conditions are internal to a particular theory of legal interpretation, while the third condition is external to a particular theory of legal interpretation. My conclusion shows that there are legal theories that are internally consistent with the fundamental features of epistemicism. However, within the domain of law—and specifically in the case of legal theories that are internally consistent with epistemicism—I show that vagueness cannot be explained simply by our ignorance of the meaning and use of vague expressions. Rather, epistemicism must also account for ignorance of the requisite normative considerations in legal theories with which it is otherwise consistent. (shrink)

Preoccupation with multiparty aggregative democracy in Africa has produced superficial forms of political/electoral choice-making by subjects that deepen pre-existing ethnic and primordial cleavages. This is because the principles of the multiparty system presuppose that decision-making through voting should be the result of a mere aggregation of pre-existing, fixed preferences. To this kind of decision-making, I propose deliberative democracy as a supplementary approach. My reason is that deliberation, beyond mere voting, should be central to decisionmaking and that, for a decision to (...) be legitimate, it must be preceded by deliberation, not merely the aggregation of pre-existing fixed preferences. I agree with arguments that when adequate justifications are made for claims/demands/conclusions, deliberation has the potential to have a salutary effect on people’s opinions, transform/evolve preferences, better inform judgments/voting, lead to increasingly ‘common good’ decisions, have moral educative power, place more burden of account-giving on public officers, and furnish subjects/losers/outvoted with justifications for collectively binding decisions. I argue that a deliberative turn in politics in Africa will have a mitigating effect on tribal and money politics. (shrink)

A spectre is haunting legal positivists – and perhaps jurisprudes more generally – the spectre of the normativity of law. Whatever else law is, it is sometimes said, it is normative, and so whatever else a philosophical account of law accounts for, it should account for the normativity of law[1]. But law is at least partially a social matter, its content at least partially determined by social practices. And how can something social and descriptive in this (...) down-to-earth kind of way be normative?[2] This is presumably a problem for any theory of law, but it is especially acute for legal positivism, according to which (roughly speaking) all there is to facts about legality are such descriptive social facts. If this is so, the thought goes, the task of accommodating the law’s normativity immediately becomes both more daunting, and more urgent[3]. Unfortunately, though, it is entirely unclear what the problem of the normativity of law is supposed to be. Indeed, I suspect that there is no one problem here, as different people seem to have in mind different problems when they use this unhelpful phrase[4]. At least one family of issues people seem to have in mind when they talk about the normativity of law is a host of issues pertaining to the reason-giving force of the law. The law, it is sometimes said, gives reasons for action, and a theory of law should accommodate this obvious fact. But even when we focus just on questions regarding the reason-giving force of the law (and from now on I will restrict myself to just those, leaving other things people may have in mind when they talk about the normativity of law for another occasion), it is still not clear what the problem is. Indeed, my main purpose in this paper is to make some progress in understanding the relevant question here. And my conclusion is going to be somewhat skeptical: Once we are clear on what reason-giving in general consists in, and on what reason-giving powers the law actually has, there is not much by way of a problem here that needs to be solved, not a deep and interesting phenomenon here that theories of law need to accommodate, and that therefore places adequacy constraints on plausible theories of the nature of law.. (shrink)

Despite recent growth in surveillance capabilities there has been little discussion regarding the ethics of surveillance. Much of the research that has been carried out has tended to lack a coherent structure or fails to address key concerns. I argue that the just war tradition should be used as an ethical framework which is applicable to surveillance, providing the questions which should be asked of any surveillance operation. In this manner, when considering whether to employ surveillance, one should take into (...) account the reason for the surveillance, the authority of the surveillant, whether or not there has been a declaration of intent, whether surveillance is an act of last resort, what is the likelihood of success of the operation and whether surveillance is a proportionate response. Once underway, the methods of surveillance should be proportionate to the occasion and seek to target appropriate people while limiting surveillance of those deemed inappropriate. By drawing on the just war tradition, ethical questions regarding surveillance can draw on a long and considered discourse while gaining a framework which, I argue, raises all the key concerns and misses none. (shrink)

The project of “public reason” claims to offer an epistemological resolution to the civic dilemma created by the clash of incompatible options for the rational exercise of freedom adopted by citizens in a diverse community. The present Article proposes, via consideration of a contrast between two classical accounts of dialectical reasoning, that the employment of “public reason,” in substantive due process analysis, is unworkable in theory and contrary to more reflective Supreme Court precedent. Although logical commonalities might be (...) available to pick out from the multitude of particularized accounts of what constitutes “civic order,” no “public reason” so derived could adequately capture - and thus be able to secure in a practical sense - any single determinate civic order, much less one that would be consistent with all citizens' conceptions of public order. Part I of this Article raises a number of issues for consideration relating to the epistemology of law and focuses especially on the concept of public reason and its critique. Part II addresses alternative approaches to legal reasoning suggested by classical accounts of practical reasoning and virtue theory and considers the operation of such legal analysis outside the area of substantive due process; Part III analyzes post-Lawrence case law confirming the dilemma created by the Supreme Court's ambiguous approaches to substantive due process and concludes that only one interpretation - that articulated fully in Washington v. Glucksberg and given lip service in Lawrence v. Texas - provides a method for resolving novel substantive due process challenges that is philosophically sound as well as historically coherent. Rather than perpetuating a fiction that denies the propriety of lawmaking unless based on principles that all citizens can rationally agree upon, an appropriate model of substantive due process analysis recognizes that law must inevitably be based upon principles that cannot be agreed upon by all citizens in virtue of rationality alone. -/- Abstract Footnotes (291) Beta -/- Revise My Submission -/- -/- One-Click Download | Share | Email | Add to Briefcase -/- Facebook | Twitter | Digg | Del.icio.us | CiteULike | Permalink Using the URL or DOI link below will ensure access to this page indefinitely -/- Based on your IP address, your paper is being delivered by: New York, USA Processing request. [Processing request.] Illinois, USA Processing request. [Processing request.] Brussels, Belgium Processing request. [Processing request.] Seoul, Korea Processing request. [Processing request.] California, USA Processing request. [Processing request.] -/- If you have any problems downloading this paper, please click on another Download Location above, or view our FAQ File name: SSRN-id1004757. ; Size: 424K -/- Sample Cover You will receive a black and white printed and perfect bound version of this document in 8 1/2 x 11 inch format, with glossy color front and back covers. Currently shipping to the US addresses only. Your order will be shipped within three business days. Quantity: Total Price = $0.50 plus shipping (U.S. Only) -/- If you have any problems with this purchase, please email [email protected] or call 1-585-442-8170. Reason's Freedom and the Dialectic of Ordered Liberty -/- Edward C. Lyons University of Notre Dame Law School -/- Cleveland State Law Review, Vol. 55, p. 157, 2007 -/- Abstract: The project of "public reason" claims to offer an epistemological resolution to the civic dilemma created by the clash of incompatible options for the rational exercise of freedom adopted by citizens in a diverse community. The present Article proposes, via consideration of a contrast between two classical accounts of dialectical reasoning, that the employment of "public reason," in substantive due process analysis, is unworkable in theory and contrary to more reflective Supreme Court precedent. Although logical commonalities might be available to pick out from the multitude of particularized accounts of what constitutes "civic order," no "public reason" so derived could adequately capture - and thus be able to secure in a practical sense - any single determinate civic order, much less one that would be consistent with all citizens' conceptions of public order. -/- Part I of this Article raises a number of issues for consideration relating to the epistemology of law and focuses especially on the concept of public reason and its critique. Part II addresses alternative approaches to legal reasoning suggested by classical accounts of practical reasoning and virtue theory and considers the operation of such legal analysis outside the area of substantive due process; Part III analyzes post-Lawrence case law confirming the dilemma created by the Supreme Court's ambiguous approaches to substantive due process and concludes that only one interpretation - that articulated fully in Washington v. Glucksberg and given lip service in Lawrence v. Texas - provides a method for resolving novel substantive due process challenges that is philosophically sound as well as historically coherent. -/- Rather than perpetuating a fiction that denies the propriety of lawmaking unless based on principles that all citizens can rationally agree upon, an appropriate model of substantive due process analysis recognizes that law must inevitably be based upon principles that cannot be agreed upon by all citizens in virtue of rationality alone. -/- Keywords: substantive due process, practical reason, public reason, Rawls, Casey, Lawrence, Glucksberg, Plato, Aristotle, Kant, Hegel, dialectic, autonomy, freedom -/- . (shrink)

Chapter 1: An Introduction: The ‘Semantic Sting’ Argument Describes Dworkin’s theory as concerning the conditions of legal validity. “A legal system is a system of norms. Validity is a logical property of norms in a way akin to that in which truth is a logical property of propositions. A statement about the law is true if and only if the norm it purports to describe is a valid legal norm…It follows that there must be certain conditions (...) which render certain norms, but not others, legally valid. Hence it also follows that there can be two types of disagreement over the truth or falsehood of propositions about the law. People can disagree over the question ‘What are the conditions of legal validity?’, in which case their disagreement is a theoretical one. Or they can agree on the conditions of validity, and disagree as to whether or not those conditions actually obtain in a given case or not.” Argues that the best way to interpret Dworkin’s ‘semantic-sting argument’ is as a general argument against conventionalism in legal positivism. Summarizes the outcome of Dworkin’s argument as follows: “[I]f Dworkin is right about the legal reasoning of lawyers and judges, conventionalism would be self-defeating: if lawyers and judges recognize as legally binding not only those norms which are uncontroversially identifiable under the Rule of Recognition, that is, if what they recognize as binding is not only source-based law, then conventionalism turns out to be false on its own terms. In other words, either law is not what lawyers and judges think that it is, in which case law is not a matter of conventions, or – if it is what lawyers and judges think – conventionalism is false, as they do not see the law as purely a matter of conventions.” Dworkin’s theory, then, is a new conception of jurisprudence aiming to present itself as a rival to conventionalism. The book will be concerned with re-examining positivism in light of the interpretative challenge. Chapter 2: Meaning and Interpretation “[R]oughly, interpretation can be defined as an understanding or explanation of the meaning of an object.” Interpretation in this narrow sense is distinct from a less formal and broader use of interpretation that makes it equivalent to explanation. “Hence also, only those objects which are capable of bearing some meaning qualify as objects of interpretation.” [Why shouldn’t we think of interpretation as object-identification? This seems to be closer to what Dworkin has in mind.] Thus, a consideration of the philosophical work on meaning is appropriate. First, a consideration of Davidson on interpretation. The thesis is that Davidson’s “radical interpretation” can only account for sentence meaning and not for linguistic interpretation in general. Davidson cannot account for the non-rule-governed aspects of communication. “Semantics, as opposed to interpretation, concerns those aspects of communication which are rule or convention governed…but such rules are normally unavailable as reasons or justifications for an interpretation. On the contrary, interpretation is usually required because the issue is not determined by rules or conventions.” Interpretation, rather, is parasitic with understanding the meaning of an expression and not equivalent with it. As Dummett notes, any reflection on the meanings of words assumes prior knowledge of ordinary meanings. “This leads to the conclusion that understanding or explaining the meaning of an expression and interpreting it, are two conceptually separate things. It also indicates that seman ics can only be employed, if at all, to elucidate the concept of interpretation by way of contrast: interpretation concerns those aspects of communication which are under-determined by semantic rules or conventions.” Pragmatics, the study of problems posed by discrepancies between utterer’s meaning and sentence meaning, would seem to be closer to inquiry into interpretation. Both are concerned with understanding how meaning is possible where conventional rules leave off. Contemporary pragmatics, moreover, recognizes the logically indeterminate character of communicative inferences beyond conventional meaning and that the contextual conditions that account for the possibility cannot be realized in the semantic structure of the sentence. However, different criteria of success may be at work in pragmatics than interpretation. Pragmatics is concerned with how communication is achieved and thus the criteria of success would be grasping a speaker’s intentions. Many think, however, that communication is unimportant in certain spheres of communication, e.g. artistic interpretation, and that in these cases the aim of interpretation is not to uncover the actual artist’s intentions. What kind of meaning is interpretation aimed at then? It cannot be the meaning the object has for the interpreter. “Interpretation purports to be a statement about the object interpreted, not about the subject who offers the interpretation…it is crucial to remember that not everything we say about a work of art, or any other text, amounts to an interpretation of it. Only those aspects of a text which can shed light on its meaning form part of the text’s interpretation. What the text means for someone rarely entails anything about what the text means.” [This is puzzling to some extent for it remains somewhat ambiguous what it means to talk of subject-independent meaning.] Interpretive meaning attribution is, rather, counterfactual. “In general, I will suggest that the answer to this question consists in the fact that meaning is assigned by a counterfactual statement. Given that x is the meaning attributed to, for instance a text T, and x is not the literal meaning of T, nor is it the meaning of T intended by its author, then the attribution of meaning x to T can only be understood as the contention that on the basis of certain assumptions a certain fictitious or stipulated speaker would have meant x by expressing T.” Thus, on this account, interpretation, when it does not concern an actual speaker, turns out to be a kind of counterfactual intention attribution. Twofold point: “First, that interpretation is essentially a matter of attributing intentions, that is, in the pragmatics sense of ‘meaning’, namely, meaning that such-and-such by an act or expression. At the same time, interpretations need not be based on the intentions of actual authors; the meaning of an act or expression is understandable in terms of counterfactual intentions.” [Are we really restricted to understanding the coherence and integrity of meaning in such a way? Presumably the author is a kind of device for organizing meaning, much like Dworkin’s integrity, but need it take that format?] The logic of interpretation is typically reducible to intention attribution. [What role does the counterfactual author play in structuring meaning?] The criteria of interpretive success will depend upon the object, whether it is the real author or the counterfactual author. If the former, success will depend upon the retrieval of the author’s actual intentions. “Likewise, if the author is characterized in terms of some ideal representative of a certain genre, for instance, the presumptions which are taken to determine this c aracterization would provide the criteria of success for the particular interpretation offered.” [The criteria of success would seem, then, to be the principles, ideals, etc. that we attribute to the counterfactual author. These attributed qualities would be doing all the work – is the attribution of intention to the hypothetical author, then, really necessary at all?] [Does this account presuppose a weird dichotomy between what an object is and what it means? This dichotomy is different, if present at all, in Dworkin.] Chapter 3: Dworkin’s Theory of Interpretation and the Nature of Jurisprudence Three main insights of Dworkin’s theory of interpretation: “First, that interpretation strives to present its object in its best possible light. Second, that interpretation is essentially genre-dependent. And third, that there are certain constraints that determine the limits of possible interpretations of a given object.” Why the best light? Dworkin doesn’t really address this question in depth but claims that otherwise we are left with no way of justifying and choosing an interpretation or we are left with the author’s intention model, which we should reject. [Marmor doesn’t seem clear on what precisely it means to present something in its best light – seems to conflate it with most appealing light which, I take it, is different than what Dworkin has in mind.] “Dworkin is quite right to maintain that without having some views about the values inherent in the genre to which the text is taken to belong, no interpretation can take off the ground. The values we associate with the genre partly, but crucially, determine what would make sense to say about the text, what are the kinds of meaning we could ascribe to it.” There is no necessity for an interpretation to present an object in its best light with regards to the genre it is taken to be part of. Interpretations “could simply strive to present it in a certain light, perhaps better than some, worse than others, but in a way which highlights an aspect of the meaning of the text which may be worth paying attention to for some reason or another.” [What kind of reasons would count in choosing to present it in one light rather than another?] There is simply zero grounds for Dworkin’s assertion that we have no reason to pay attention to an interpretation that does not present it in its best light. Take a psychoanalytic interpretation of Hamlet, for example – not the best light, but a legitimate one. [This seems related to the next criticism – clearly Dworkin would have to loosen his insistence on the best, though not to detriment.] Moreover, especially with regards to art, it doesn’t appear possible to make an all things considered judgment about the best interpretation given the incommensurability of different values that are taken to inhere in a given genre. [Dworkin can respond here that we may have different available interpretations that could be justified with respect to the relevant value. Moreover, a lack of common denominator does not prevent any comparison whatsoever.] Constructive interpretation concerns social practices constituted by norms – it imposes a purpose or value rendering intelligible the normative character of the practice. There is a separate aspect of constructive interpretation that maintains that elements of the practice are sensitive to the point of the practice. It is important to note that different social practices will institutionalize themselves in different ways – thus, different practices will establish varying conditions on how the practice can be altered. The position of the positivists is that evaluative judgments concerning what the law should be are insufficient for determining what the law is given the nature of law’s institutionalization.&nb p; [This would seem to reside on a certain conception of law, i.e. an interpretation about where the value of law lies.] “[T]his being one of the main points of dispute between Dworkin and his positivist opponents, Dworkin cannot at this initial state presume law to be sensitive to its value in the manner that other, non-institutional practices might be, without incurring the charge of having assumed the very point at issue.” The upshot for Dworkin is that any explanation of a social practice such as law requires the same kind of reasoning as participation in that practice. This will be called the hermeneutic thesis. We can try to reconstruct a justification for this view based on the necessity of shared background assumptions – but this will not do since Dworkin’s claim is stronger: it contends that participants’ and theorists’ must “adopt one and the same normative point of view.” [The sense of normative here is unclear. It is true, though, that shared background assumptions do not imply viewing the law as valuable in any particular way, or at least it does not imply this in any strong sense.] Dworkin makes two distinct points with the hermeneutic thesis: “First, that the explanation of a social practice, like law or the arts, is essentially interpretative, and as such, necessarily value laden. Second, that the interpretation of such social practices, which Dworkin calls ‘argumentative’, is unique in the sense that the practice itself is an evaluative enterprise, and that therefore the interpreter of such a practice must form an evaluative judgment of her own about those values which are inherent in the practice that she purports to interpret.” [As stated, the first thesis is terribly ambiguous – for Dworkin, it clear implies a commitment to constructive interpretation. For Marmor, who accepts it, it is totally unclear what commitment he intends to make. He seems to mean simply that we have criteria for success concerning what counts as a successful explanation.] Mamor denies the second thesis. “What Dworkin seems to ignore here is that there is a crucial difference between forming a view about the values which are manifest in a social practice, like law, and actually having evaluative judgments about them.” [The problem, however, it that it is a contentious matter what values are part of the law – a theorist’s account of what values are constitutive of a particular legal system must rely on the kind of arguments which participants rely on. Of course, a theorist might simply note a debate about values and attempt to remain agnostic, but this will fail to be a full theoretical account of what law is!] Dworkin’s thesis seems to depend exclusively on his account of constructive interpretation. [This seems exactly right.] Chapter 4: Coherence, Holism, and Interpretation: The Epistemic Foundation of Dworkin’s Legal Theory Begins with discussion of Rawls’ reflective equilibrium. Sums up dual criticism as follows: “[T]he assumption that intuitions are independently true and the converse one, that their truth depends on fitting a coherent scheme, both seem to yield paradoxical results.” Dworkin, in his article “The Original Position”, claims that Rawls cannot commit himself to ethical realism. “[T]he natural model presupposes some form of ethical realism, while the constructive model does not. One important difficulty arising from an attempt to apply the natural model to Rawls is, that under the natural model, any theory which dopes not account for an intuition, at least for one which is held firmly, cannot be wholly satisfactory, just as scientific theory which does not account for certain observational data it is supposed to cover, would not be satisfactory in a familiar way.” Rawls, rather, is committed to a constructivist view of morality. Moreover, the reason we value coherence epistemically in moral theory is that it itself is a value of political morality – fairness requires consistency and publicity in the application of moral standards. Marmor notes the following problem with such a view: “[I]f coherence is justified, as it is here, with reference to certain moral values, that is, a specific conception of fairness, then we face the following problem: the presupposed values of fairness must themselves be based upon intuitive convictions, in which case the question of their truth cannot be ignored. If they are taken to be true…we are driven back to the perplexities of the natural model.” Discusses, helpfully, the Fish/Dworkin debate. The upshot is that Dworkin’s interpretive model is best off if it commits itself to a Quineian holism. However, this undermines his distinction between internal and external skepticism since holism must deny that moral judgments constitute a closed system. [This analysis seems exactly right.] Endorses Simmonds view that Dworkin’s theory does not meet the requirements of complexity he identifies as necessary to avoid vicious circularity in interpretive judgments of fit and identity. Coherence is doing the work through and through and therefore the interpretive theory of law is circular. [Will require further investigation, though it is unclear how coherence is doing any work in the pre-interpretive stage. At this stage, the judgments, if interpretive, seem to be derived from different sources. In any case, using coherence as a value seems to be highly suspect.] Why doesn’t Dworkin just reject Fish’s assumptions: because of his jurisprudence. “If legal texts can have a meaning that is not entirely dependent on a process of interpretation, then it is at least sometimes the case that the law can simply be understood, and applied, without the mediation of interpretation. And if that is the case, then the argument from interpretation against legal positivism collapses. It is no longer the case that every conclusion about what the law is, depends on evaluative considerations about what it ought to be.” Chapter 5: Semantics, Realism, and Natural Law Assessment of Michael Moore’s legal realism and its implications. [The final criticisms of Moore are not decisive.] Chapter 6: Constructive Identification and Razian Authority A consideration of Dworkin’s denial that the communication model of interpretation is appropriate for legal interpretation. Marmor argues that intentions do play a crucial role in the identification of legal norms in a way that is incompatible with Dworkin’s “coherence thesis”. Marmor takes Dworkin to be committed to the constructive identification thesis: that the identification of something as part of the legal, artistic, etc. genre can be done sufficiently by evaluative considerations. “Here, one must maintain that evaluative considerations are sufficient to determine whether something is a legal norm or a work of art”. [Fit, however, constrains possible evaluative considerations – thus evaluative considerations are not sufficient in themselves.] “Now the crucial point here is this: if you maintain the possibility of constructive identification in art, you must assume that works of art can be identified as such on the basis of certain features they happen to possess, features which contain no reference to any particular intention to create a work of art…unless we take intentions into account, how can we discriminate between the concept of an aesthetic artifact and the con ept of a work of art?” [It is unclear, and I think false, that constructive interpretation of anything requires identifying something irrespective of an artificers intentions. Those intentions may be relevant, dependent upon the genre under which we are trying to classify the object. Nothing, seemingly, about constructive interpretation in general excludes this possibility.] Marmor’s point is that it turns out to be impossible to identify art as art without reference to an artist’s intentions – especially given the state of contemporary art. [It is notable that Marmor’s response to counterexample implicitly depends upon a fully developed theory of aesthetics. His cursory comments on the matter of identifying art seem insufficient to say the least.] The rest of the chapter considers the incompatibility of Raz’s account of authority with constructive interpretation. The incompatibilities mentioned do not move beyond what Raz identifies in his article “Authority, Law and Morality”, but a defense of this notion of authority is defended in several [inconclusive] respects. [Raz and Marmor want to separate identification from content. This is not clearly a defensible separation.] Chapter 7: No Easy Cases? Chapter defends notion that there is a distinction between easy and hard cases in the positivist sense. Takes a Hartian approach and ultimately defends the distinction by associating it Wittgenstein’s conception of rule following. The point is that one need to look the purpose of rule in order to understand what the rule requires. Chapter 8: Legislative Intent and the Authority of Law Examines the following doctrine concerning the role of legislative intent in adjudication: “[F]irst, it would hold that laws, at least in certain cases, are enacted with relatively specific intentions, and that this is a matter of fact which is discernible through an ordinary fact-finding procedure. Second, that in certain cases the presence of such a fact, namely, that the law was enacted with a certain intention, provides judges with a reason to decide the legal dispute in accordance with the relevant legislative intent.” [It is important that for Marmor, interpretive strategies are only appropriate in hard cases. However, we should wonder what grounds positivism can offer for deciding a hard case in any manner which is not the morally best manner according to the judgment of the judge. There are no legal grounds, by definition, in hard cases and so what justificatory strategy would endorse any judicial decision except for the morally best one?] We can ascribe intentions to a legislative body, when this is possible at all, by taking the shared intentions of the majority, rather than some group intention, to be the significant intentions. Moreover, we should expect a good deal of consensus about intentions for otherwise it is hard to explain how legislative bodies are able to produce so much legislation. Discussion of kinds of intentions concludes as follows: “I have distinguished between three main types of intention that are potentially relevant from the legal point of view. Apart from the intentions that are manifest in the language of the law itself, legislators typically have further intentions in enacting a given law, and sometimes they would have certain intentions bearing on its proper application. I have also suggested that some of these further intentions may be essentially non-avowable, in which case they are rendered initially irrelevant. Finally, I have pointed out that considerations of consistency require that the legislator’s application intentions be taken into account only if, and to the extent that, they are in accord with his further intentions.” The manner in which intentionalism is to be justif ed relies on the distinction, Marmor maintains, between expert and mere collective action authority. “The point I wanted to make is strictly conditional: if, and only if, a certain law is justified on the basis of the expertise branch of the normal justification thesis, would it make sense to defer to the legislature’s intentions in the interpretation of the law, that is, to the extent that there is, in fact,; such an intention and it can clarify something that needs clarification.” Insofar as a legislature can be considered an expert on the matter requiring adjudication and interpretation should the body’s intention be taken into account. Chapter 9: Constitutional Interpretation Begins by laying out general necessary features of a constitution. Then Marmor moves on to consider general questions of constitutional legitimacy. First, he considers what grounds might be offered for the legitimacy of a constitution at all. He notes that the central question is what permits a single generation to bind future generations. He then examines four arguments to avoid this problem. The first is based on the moral legitimacy of the constitution; Marmor rejects this solution for the [truly dubious] reason that the constitution would make no practical difference because it would not supply reasons in addition to those provided by morality [but, presumably, the point is that these legally valid rules would be institutionally enshrined]. The second is based on the moral authority of the framers and Marmor rightly rejects this on the basis of the idealization of the framers it requires and less rightly on the basis that there cannot be moral authorities. Third is the “argument from interpretation” which claims that “as long as the particular content of the constitution is determined by its interpretation, and the authoritative interpretation at any time correctly instantiates the values which ought to be upheld in the community, the constitution would be morally legitimate”. The fourth is Raz’s which argues that a constitution is valid so long as its constraints are morally permissible because conventions of this type might aid the continuity of the legal system, i.e. it is important to have a convention of this type and the constitution is a kind of this type. Marmor appears to endorse these two approaches and concludes: “The conditions for the legitimacy of a constitution must comprise the following conditions. First, the values and principles enshrined in it must be morally permissible…Second, when certain choices are made in particular cases, they would be legitimate if they are either morally underdetermined, or else, morally correct…It follows from this that both arguments must assume that at least in those areas in which the constitution would make a moral difference, it can be interpreted to make the difference that it should, that is, according to the true moral principles that should apply to the particular case...the moral legitimacy of constitutions very much dependent on the practices of their interpretation. In other words, a great deal of the burden of moral legitimacy is shifted by these arguments to the application of the constitution, thus assuming that the constitution is legitimate only if the courts are likely to apply the constitution in a morally desirable way.” [This implies that the only significant value constitutions have is in providing a conventional practice where some such practice is required.] Moves on to argue that courts typically rely, and rightly so, on moral considerations when deciding constitutional issues because typically, in cases of the kind that reach the supreme or constitutional court, there is no law on the case. Much of this relies on his earlier discussion about the nature of interpretation in the law – that legal interpretation is always a matter of cha ging the law. (shrink)

The first part of this work analyses the universalist and the particularist conceptions of reasons. The second part projects this analysis to the legal domain. The author stresses that universalism and particularism regarding reasons are mutually exclusive theories linked to incompatible conceptions of norms, i.e. norms as strict universal conditionals and norms as defeasible conditionals. In giving an account of this tenet, different meanings of universality and defeasibility are explored. A parallel debate regarding reasons can be found in (...) the legal domain, where two contrasting categories of norms are usually distinguished: rules and principles. On this issue the author argues that the conception of legal reasons depends on the way in which this contrast between different kinds of legal norms is shaped. (shrink)

What should we do, aesthetically speaking, and why? Any adequate theory of aesthetic normativity must distinguish reasons internal and external to aesthetic practices. This structural distinction is necessary in order to reconcile our interest in aesthetic correctness with our interest in aesthetic value. I consider three case studies—score compliance in musical performance, the look of a mowed lawn, and literary interpretation—to show that facts about the correct actions to perform and the correct attitudes to have are explained by (...) norms internal to a practice. Practice-internal norms, however, cannot settle the distinct question of which practices we have reason to opt into. When it comes to the source of aesthetic normativity—in virtue of what aesthetic value is genuinely reason-giving—I argue that existing accounts, which appeal to pleasure or achievement, are inadequate. The only practice-external aesthetic requirement is a generic one to opt into at least some aesthetic practices. (shrink)

This essay develops an ideal of public legal reason--a normative theory of legal reasons that is appropriate for a society characterized by religious and moral pluralism. One of the implications of this theory is that normative theorizing about public and private law should eschew reliance on the deep premises of deontology or consequentialism and should instead rely on what the author calls public values--values that can be affirmed without relying on the deep and controversial (...) premises of particular comprehensive moral doctrines. The ideal of public legal reason is then applied to a particular question--whether welfarism (a particular form of normative law and economics) provides the sort of reasons that appropriate for legal practice. The answer to that question is no--to the extent that welfarism contends that the normative assessment of legal policies should rely exclusively on information about individual preferences, welfarism relies on deep and controversial premises of consequentialist moral theory that fail the test of public reason. The essay also investigates the thesis--advanced by Louis Kaplow and Steven Shavell--that any fairness principle (a nonwelfarist method of policy assessment) can violate weak Pareto (making everyone worse off). Whatever the implications of Kaplow and Shavell's argument, it does not show that welfarism can provide public legal reasons. The essay concludes that law's justifications should rely on normative principles that are accessible to reasonable citizens, whether they are theists or atheists, deontologists or consequentialists, moral philosophers or economists. Law's deliberations should be shallow and not deep. Law's reason should be public. (shrink)

What is the value of fictions, metaphors, figures and scenarios in adjudication? This book develops three models to help answer that question: inquiry, artefacts and imagination. -/- Legal language, it is argued, contains artefacts – forms that signal their own artifice and call upon us to do things with them. To imagine, in turn, is to enter a distinctive epistemic frame where we temporarily suspend certain epistemic norms and commitments and participate actively along a spectrum of affective, sensory and (...) kinesic involvement. -/- The book argues that artefacts and related processes of imagination are valuable insofar as they enable inquiry in adjudication, ie the social (interactive and collective) process of making insight into what values, vulnerabilities and interests might be at stake in a case and in similar cases in the future. -/- Artefacts of Legal Inquiry is structured in two parts, with the first offering an account of the three models of inquiry, artefacts and imagination, and the second examining four case studies (fictions, metaphors, figures and scenarios). -/- Drawing on a broad range of theoretical traditions – including philosophy of imagination and emotion, the theory and history of rhetoric, and the cognitive humanities – this book offers an interdisciplinary defence of the importance of artefactual language and imagination in adjudication. (shrink)

This paper discusses some of the current literature around the precautionary principle in environmental philosophy and law with reference to the possibility of transgenic food in Uganda (GMO bananas specifically). My suggestion is that the distinction between formal and substantive versions of a principle, familiar from legal theory, can be useful in imposing some conceptual clarity on aspects of debates concerning the precautionary principle. In particular, most of the negative critical response to the principle has been to formal (...) versions of it, and follows a pattern not unfamiliar from discussions of how to get from rules to outcomes. For its part, the less-discussed substantive account admits of at least two very different emphases. The first, which I call “Heideggerian,” exhibits a deep distrust of technology. The second, “autonomist,” is less concerned with the fact of technology than with the question of who controls it. As with any exercise of analytic taxonomy, this one will fail to adequately treat many of the objects it studies. However, I hope to illuminate what I take to be serious philosophical differences within the precautionary camp, and to highlight some of the questions they suggest in terms of the differences in political philosophy that might underlie and support them. (shrink)

Building on Seumas Miller’s concept of corruption leads me to conclude that the question of disposition is central to the concept of corruption, which prompts me to consider punishment theories with regard to deterring dispositions to corruption. However, problems with punishment as a stand-alone approach lead me to consider institutional reform recommendations. Although institutional reforms have the weakness of merely engaging corrupt disposition in a hide-and-seek game, I seek to reconcile institutional approaches and moral individualism by suggesting that the former (...) is intended to aid the latter, in the sense that resisting corruption is a question of cost, and the onus is to determine how to reduce this cost. In this regard, prevailing proposals are inept without an enabling environment: public deliberation (comprising publicity and deliberation) is a necessary (though not sufficient) condition for combating corruption, because it (1) compels reason to function at its best, (2) demands rational accountability, and therefore account-giving, (3) increases ‘common-good’ thinking, (4) facilitates the recruitment of responsible institutional role-occupants, and (5) is a self-correcting instrument. (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)

A common working assumption of theories of statutory interpretation is that the object of interpretation is uncontroversial. It is assumed that dispute only centers on the epistemics of interpretation. The assumption is unsound. Theories of statutory interpretation are importantly different from other sorts of theories. The subject matter of other sorts of theories can be identified uncontroversially. In the case of statutory interpretation, the object of interpretation is controversial. What counts as the object of interpretation therefore needs specification. Without the (...) required specification, criteria of evidence and warrant justifying an interpretation are not well-defined.An adequate theory of statutory interpreation must contain both epistemic and ontological components. It must provide criteria for treating information as evidence relevant to, and standards for, interpreting a statute. Providing such criteria in turn requires also giving an account of the object of interpretation — what a statute consists in. Practical reason theories fail to provide acceptable criteria and standards for interpreting a statute. These accounts therefore fail to supply an adequate epistemic components for a theory of statutory interpretation. As to the ontological component, things are less clear. I have argued in sections II and III that this component is partly a matter of substantive political theory. Although practical reason theorists fail to offer a substantive political theory for defining the proper object of interpretation, their accounts are in principle ontologically unobjectionable. At most, practical reason accounts are incomplete. Of course, practical reason accounts might still be defective for other reasons. They may invoke a defective substantive political theory. Or the constraints imposed on properties of a statute or relations between them may not in fact affectuate the goals set by the theory. Such failings would be normative, not metaphysical. Since practical reason accounts are epistemically inadequate and ontologically incomplete, legal theorists should find the accounts less attractive than they do, even putting aside the normative soundness of the accounts. (shrink)

I ask you to X. You now have a reason to X. My request gave you a reason. How? One unpopular theory is the epistemic account, according to which requests do not create any new reasons but instead simply reveal information. For instance, my request that you X reveals that I desire that you X, and my desire gives you a reason to X. Peter Schaber has recently attacked both the epistemic account and other theories of the (...) reason-giving force of requests. Schaber defends a new theory of the reason-giving force of requests according to which request give reasons because it is valuable for requesters and requestees that requests have this power. In this paper I argue that Schaber's attack on the epistemic account fails, and that his own theory ought to be rejected because it faces compelling objections. (shrink)

While some descriptive and normative theories of legislation account for an extensive role of legal interpretation in legislation, others see its legislative role as marginal. Yet in contemporary constitutional democracies, where legislation is limited and guided by constitutional norms, as well as international and supranational law, legal interpretation must play some role in legislation—even if all or most of legislative activity may not be adequately described and evaluated as legal interpretation. In this chapter, I aim (...) to explore some implications of recognizing the role of legal interpretation in legislation—notably, for the conceptualization and significance of legal expertise in the legislative process, as well as for determining the moral duties of legislative representatives. First, I argue that the role of legal interpretation in legislation calls for institutional reforms in legislatures in order to ensure that legal expertise is adequately channeled into the legislative process, including agenda-setting. Second, I argue that interpreting legal norms through legislation implies specific moral duties for legislative representatives, both in their relations to one another and in their relations vis-à-vis their constituents. I show that giving legal interpretation its due in a descriptive and normative account of legislative activity does not imply an elitist understanding of legislation, and it does not compromise our conception of legislatures as loci of political and moral disagreement and democratic representation. (shrink)

This is the latest draft of chapter 1 of _A New Theory of Reasons for Belief: Pragmatic Foundations and Pluralistic Reasons_ (Under Contract with OUP). It outlines the view that is the focus of the book: Welfarist Pluralism. Welfarist pluralism is the view that all normative reasons for belief are grounded in wellbeing and that being in a positive epistemic state is one of the components of wellbeing. This chapter explains how one can develop a principled version of (...) non-derivative pluralism about normative reasons for belief while still accepting that theoretical reason has a single, unified pragmatic foundation. Updated 25 January 2023. (shrink)

In this paper, I provide an argument for rejecting Sarah Moss's recent account of legal proof. Moss's account is attractive in a number of ways. It provides a new version of a knowledge-based theory of legal proof that elegantly resolves a number of puzzles about mere statistical evidence in the law. Moreover, the account promises to have attractive implications for social and moral philosophy, in particular about the impermissibility of racial profiling and other harmful (...) kinds of statistical generalisation. In this paper, I show that Moss's account of legal proof crucially depends on a moral norm called the rule of consideration. I argue that we have a number of reasons to be sceptical of this rule. Once we reject the rule, it is not clear that Moss's account of legal proof is either plausible or attractive. (shrink)

The author introduces a normative conception of coherence, derived from a pragmatic interpretation of the application of norms to concrete cases. A distinction is made between the justification of a norm and its application. In the case of moral norms, justification and application can be analysed as two different discursive procedures which give rise to different aspects of the principle of impartiality. Impartial justification requires a procedure by which all interests concerned are taken into account whereas impartial application (...) requires a procedure where all features of a situation are considered. The complete description of a concrete case makes necessary a coherent interpretation of all the valid norms which are prima facie applicable. This requirement of an ideal coherent system of norms is restricted to interpretive “paradigms” in the case of legal norms, because it is necessary to produce singular judgments under the restrictive conditions of scarce time and incomplete knowledge. (shrink)

Philosophers have come to distinguish between ‘right’ and ‘wrong’ kinds of reasons for belief, intention, and other attitudes. Several theories about the nature of this distinction have been offered, by far the most prevalent of which is the idea that it is, at bottom, the distinction between what are known as ‘object-given’ and ‘state-given’ reasons. This paper argues that the object-given/state-given theory vastly overgeneralizes on a small set of data points, and in particular that any adequate account (...) of the distinction between the ‘right’ and ‘wrong’ kinds of reason must allow state-given reasons to be of the right kind. The paper has three main goals, corresponding to its three main parts. In part 1 I set up the problem by introducing the right-kind/wrong-kind distinction, the object-given/state-given distinction, and the object-given/state-given theory, according to which the former distinction simply amounts to the latter. Part 2 presents the main argument of the paper: I argue against the object-given/state-given theory by showing that all of the earmarks of the ‘right’ and ‘wrong’ kinds of reason apply to reasons not to intend and not to believe, but that these cases can’t be captured by the object-given/state-given theory. Finally, in part 3 I use these arguments to motivate and explore a more general hypothesis about the rightkind/wrong-kind distinction, and explore some of the consequences of rejecting the object-given/stategiven theory. (shrink)

According to a common conception of legal proof, satisfying a legal burden requires establishing a claim to a numerical threshold. Beyond reasonable doubt, for example, is often glossed as 90% or 95% likelihood given the evidence. Preponderance of evidence is interpreted as meaning at least 50% likelihood given the evidence. In light of problems with the common conception, I propose a new ‘relevant alternatives’ framework for legal standards of proof. Relevant alternative accounts of knowledge state that a (...) person knows a proposition when their evidence rules out all relevant error possibilities. I adapt this framework to model three legal standards of proof—the preponderance of evidence, clear and convincing evidence, and beyond reasonable doubt standards. I describe virtues of this framework. I argue that, by eschewing numerical thresholds, the relevant alternatives framework avoids problems inherent to rival models. I conclude by articulating aspects of legal normativity and practice illuminated by the relevant alternatives framework. (shrink)