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.

“Artworks are not being but a process of becoming” —Theodor W. Adorno, Aesthetic Theory In the everyday use of the concept, saying that something is grotesque rarely implies anything other than saying that something is a bit outside of the normal structure of language or meaning – that something is a peculiarity. But in its historical use the concept has often had more far reaching connotations. In different phases of history the grotesque has manifested its forms as a means of (...) subversive resistance against society’s prevailing notions of form and power. What aids this impact and distinguishes two of its basic stylistic features is the grotesque’s dissolution of form and its hyperbole. Such grotesqueries, however, soon solidify into new forms, new structures of meaning, hierarchy and practice, and in this sense the history of the grotesque is, on one hand, a continual opposition and transgression of the prevailing notions of art as well as of God and humanity, while on the other hand it offers continual resistance to its own solidifying process. As such the grotesque will not and cannot be contained in form without it losing the very thing that makes it grotesque. Even though it is somewhat easy to point out certain stylistic features of the grotesque, the sum of those features tell us very little about what is at play within it. Definitions concerned with the grotesque’s content rather than its form faces similar difficulties. Throughout history, expressions relating to the grotesque have been used in defense of a whole host of different social and cultural discourse including, for instance, Catholicism (See Erhard Schön’s Der Teufel mit der Sackpfeife , 1536), Protestantism (See Lucas Cranach’s Der Papstesel , 1523), a material folk culture (see Mikhail Bakhtin’s Rabelais and his World , 1984) and an idealistic romantic structure of meaning (see Wolfgang Kayser’s The Grotesque in Art and Literature , 1957). Thus though the grotesque cannot be reduced to the expression of certain forms or meanings, in order to examine what the grotesque is about one has to try to see how it’s relationship to flow and process and how, by maintaining this relationship, it attempts to avoid solidifying into form and meaning. The process of the grotesque alluded to here revolves around a play between periphery and center, the marginalized and the dominant. Most often this is expressed as a direct negation of the center of power. In the medieval grotesque tradition of the carnival, for example, it is expressed by its emphasis on the nether regions of the body as the center of creation of meaning. Spirit does not come from above, but from the belly, buttocks and genitals, and there is, expressed in this manner, a mockery of the predominant Christian notion of truth and meaning. Such inversions of the sites of meaning most often explicitly express an increased interest in materiality instead of ideal content which comes to the fore through the play between periphery and center. Even in early grotesque Renaissance art (for example in the works of Raphael) the depiction of the mythological or ideal reveals an exploration of the possibilities of the material. The works of art thus explore their own boundaries rather than act as vessels of the divine and in this way the grotesque explores the limits of form and materiality. This in turn brings to the fore a metaphysical dimension in the workings of the grotesque: It is an immanent exploration of its own boundaries. Materiality and metaphysics are joined together, because it is through the awareness of itself as a structuring (dis)order that it places itself in opposition to the prevailing notions of form and power. This way the grotesque expresses an awareness of the division of sign and reality and a search for this reality. It implicitly expresses the awareness that meaning is not something God-given and static, but fluctuating and man-made. In modern explorations of the history of the grotesque it is commonly seen as a form of realism that manifests a shift from the ideal towards the material, freeing art from representing some hidden higher order and instead making the work of art the very site of creation and meaning. Going even further, the grotesque actively opposes the notions of the ideal by marking a shift from an ahistorical view of the world towards the historical. However, this also makes clear why the grotesque has a tendency to solidify into new static forms of meaning, for by establishing itself as a subversive counterforce there is an idea of transgression and emancipation. That is why the grotesque often historicizes and relativizes only to repeat the mistakes of that which it negates: putting itself in the king’s chair. The exploration of the material seems to create new forms and notions of the ideal. The representation of an otherness outside the prevailing notions of meaning and truth becomes a positive manifestation of this otherness as truth itself. Thus the historical “truths” of the grotesque are superseded by history itself. When the expressions of the grotesque solidify into static form and meaning, they become mere objects like anything else in the world. Instead of being this elusive thing of process and flow, it becomes tangible to the existing hierarchy of power as well as history itself. In this way the grotesque can be expunged, included or simply revealed as yet another false notion of truth, which is precisely what has happened with the grotesque throughout the course of history. If from the beginning the expression of the grotesque has not already been in the service of some structure of meaning and truth, it has quickly been included or has quickly included itself in such a structure. But by doing so it rejects its own basis: the tension between periphery and center is replaced by the attempt to create a new center, a new structure of meaning and truth. The doubleness, ambiguity and flow of the grotesque are then rejected by the grotesque itself. THE NON-FORM OF FORM In the critical thinking of Theodor W. Adorno (1903-69) the problem of art, caught between a reductive and prevalent notion of truth and meaning and a peripheral and alienated otherness, is reexamined and reformulated. For Adorno, the instrumental rationality of Enlightenment itself reverts into a new form of mythology which is every bit as static and exclusive as the hierarchies of religion it supersedes. All is excluded that is non-identical to the instrumental mastery of the objects of the world, "For the Enlightenment, anything which cannot be resolved into numbers, and ultimately into one, is illusion; modern positivism consigns it to poetry." 1 As such the non-identical has been banished from the realm of thought and action, and banished specifically to the realm of art. But the realm of art is not able to provide a decent home for it because even modern art is not something entirely autonomous. While it is excluded from the notions of truth and meaning provided by instrumental rationality, it still originates from society. Just like instrumental rationality art is about mastery, structuring and exclusion. Therefore, the problem for art is that it cannot directly provide a space for the non-identical because its mode of operation is similar to that of instrumental rationality. Even worse, art has very few possibilities to free itself from this. If it becomes l’art pour l’art it is at the same time reduced to the very thing instrumental rationality claims it to be: a subjective judgment of taste.expressionism also stands as an example of this. Conversely, art cannot work within the framework of the identity-thinking of society, because any notion of freedom or emancipation would reproduce the exclusive practices of instrumental rationality. For example: Explicit socialist literature may establish itself in opposition to instrumental rationality while at the same time reproducing it. Its language may seem different, but in reality it merely provides a different set of reductive schematics for human life and experience. The problem for the art of the grotesque was, as I mentioned earlier, that far too often it was merely a symbolic manifestation of a notion of otherness—not otherness itself. Because of this the subversive character of the grotesque ends up shaping and containing otherness instead of providing a space for it. According to Adorno the only way to avoid this is to radicalize the grotesque. In order to avoid solidifying into form the work of art has to be an object which cannot be contained in thought or form—a non-form of form. The work of art has to work in a way that it strives for autonomy but without entirely leaving a discernible reality. In other words, it has to pull in two directions at once. Thus the work of art is a paradox. It is autonomous in the sense that it closes itself off from everything outside of the work of art, trying to shy away from the contaminating influence of the identity thinking of instrumental rationality. At the same time though the work of art is heteronomous in the sense that it originates from a specific historical context and is bound to be what society is not. Autonomy and heteronomy are inseparably intertwined. Unable to display otherness itself, but still trying to be a refuge for it, there is only one option for art: It has to turn against itself and destroy its own logic of form, thereby demonstrating how any representation of otherness is impossible. Art becomes a lamentation of the victims of the identity thinking of instrumental rationality and shows the traces of the otherness that is unable to appear. Adorno’s pessimistic theory of art and history stages art as a negative dialectical process where the work of art closes itself off and rejects everything outside, while the individual elements in the work of art destroys its very own logic of form from within: Artworks synthetize ununifiable, nonidentical elements that grind away at each other; they truly seek the identity of the identical and nonidentical processually because even their unity is only an element and not the magical formula of the whole […]. The resistance to them of otherness, on which they are nevertheless dependent compels them to articulate their own formal language, to leave not the smallest unformed particle as remnant. This reciprocity constitutes art’s dynamic; it is an irresolvable antithesis that is never brought to rest in the state of being. 2 Relative to a traditional understanding of the grotesque, Adorno radicalizes the tension between center and periphery, autonomy and heteronomy. In the traditional understanding of the grotesque, as we find it for example in the writings of Mikhail Bakhtin, the grotesque establishes the display of otherness as a new center of meaning and truth. However Adorno rejects such notions and argues instead for a modernism of the grotesque in which both center and periphery are included in a negative dialectical process and continually synthesizing and destabilizing each other’s positions. A modernism of the grotesque works on the inside of the sign or the artwork, continually outlining and questioning the boundaries between materiality and form. This moves the focus away from the relation between the sign or work of art as a conceptual manifestation on one side and the object it refers to on the other side. Instead it implicitly points to the amorphous mass from which the signs and thereby meaning have been carved, the remnants that have been left behind. Modernism of the grotesque does not imply that it is emancipatory or that it reconciles man with nature, and does not represent a new position or a new ideology. It merely remembers and insists on the double nature of man and art: to write or paint yourself or an artwork whole by inscribing meaning in life or by applying form on a canvas is at the same time both creation and destruction. The very signs we use to center meaning in our lives carry its own alienation in them. Meaning surfaces only when process and flow comes to a halt—solidifying, but at the same time excluding parts that do not fit into that particular structure of meaning. NOTHING DONE AND NOTHING UNDONE It has always been difficult for art historians to find a suitable category for the works of the Danish artist Leif Lage (b. 1933). In his paintings the sensitive figuration seems so fragile that it is on the verge of turning into abstraction. Or conversely: the figurative emerges cautiously and hesitantly out of abstraction. As an art critic once wrote, he can almost paint things away. 3 Working in some undefinable space between abstraction and figuration, the Lage’s works shy away from the realm of words, and as a result few critics have been able to write anything meaningful about his works. In fact even fewer have been able to write more than one or two pages. The Danish author and art critic Leif Hjernøe is one of those few, but even he starts off by saying how impossible it is to write about Lage, confessing that his works exist both as process and in a field of in-between which words cannot reach. He writes: Always you find yourself in a place where nothing is done and nothing left undone, and where the elements of the work of art rest in a continuous motion. Always there is the open wound, where infection rather than surgical intervention is considered as an opportunity. And the conflict between matter and antimatter makes all diagnoses uncertain and allows conditions of uncertainty to spread in a place of raw presence. 4 The art works against the diagnosis and the certainty. Words are being eaten up by what is outside the realm of words: tension, process and doubleness. An approach to an understanding of the work of Lage could be to follow his connection to Samuel Beckett (1906-89). One can note, therefore, that Lage has illustrated several of the Danish translations of Beckett’s works. Though one is an author and the other a painter both seek a place where figuration, where the word, erodes. For both this entails an attempt to question and examine and so move in behind the façade of the surface in an exploration of that something or nothing that may be behind representation. At the same time even in the vanishing point of figuration or words, the meaningless words or the disjointed lines still stand as signs of human activity—signs of movement in emptiness. With very few exceptions Lage’s artworks revolve around one motif: Man—most often “en face.” But unlike traditional portraitures Lage’s people are found within. The artworks do not sense the reality of appearances, but rather the existential dimensions within man. As a seismograph they are sensitive to the utmost subjectivity in order to display an objective, sensuous depiction of the very problem of subjectivity. Instead of a static façade of a man, Lage’s “en face” shows the process-character of man. The people in Lage’s paintings are always in process—in the midst of becoming or dissolving. I will take a closer look in the following at the ways in which Lage establishes this sense of being in constant process, of being in-between modes or categories. THE DOUBLENESS OF THE STROKE Lage’s etchings attract attention in particular for the tension conveyed there between the material and the form. The material physically opposes the violence of the needle. But instead of embracing the violence of the needle and the victory over matter—instead of making the artistic creation and figuration express a heroic mastery of the background it is made out of—Lage uses the stroke to express the very tension between stroke and material, figuration and background. In the drypoint etching Untitled from 1983, which illustrated the Danish translation of Beckett’s Ill Seen, Ill Said , the needle tears up the material in long rough lines: Together, the primarily horizontal and vertical lines form a face. Thus the force needed to etch a line in the metal-plate draws attention to itself: It is there in the absence of curves and nuances. Man emerges on the metal-plate after great exertion and in a very simplistic form. This way Lage enhances the nature of the material, as the material’s resistance is not something to overcome. On the contrary the figuration is smitten by its very resistance and as such expresses the violence of its own becoming. Even more pronounced is the fact that the lines do not just show the violence of creation—it actively erases figuration in the same process that creates it. For example the mouth consists of 8-10 horizontal strokes, of which some seem to be connected to each other as if the mouth has been quickly scratched out. The mouth speaks of the inability to speak. In the same way, the eyes are black holes due to a large amount of criss-cross cuts, which together form a dark middle. Those lines, at the same time, form the eyes of the figuration and scratch out the eyes of the figuration. The extroverted aspects of the face—connected to speech and sight—are portrayed as introverted as well. Just as the etchings down into the metal-plate makes something appear. Leif Lage, Untitled , 1983 (etching) The figuration of the etching is connected to creation. It expresses that something is wrought into existence out of nothing by sheer artistic force. However, this force is at the same time presented as a violence of creation, which makes it impossible for form to truly emerge. Herein lies one of the basic principles of Lage’s art, namely that art cannot be that nothing or something behind the realm of words or signs. Without form, art would lose its ability to express anything at all. Form is a necessity if art is to avoid becoming as devoid of expression as the reality is that we cannot reach behind the appearance of things. On the other hand, art cannot raise itself above its own material in joyous celebration of the beauty of form. This would use the material in the manner of an instrument and thus would suppress the otherness it attempts to rescue. When art becomes mere form, any traces of otherness will have dissolved. Then art would be a question of technique, in no way different from the instrumental rationality of society. Therefore art works in a particular space between form and non-form. As Hjernøe says of the works of Lage, it is in the center of the event, in the in-between where things neither are nor are not, "And everything takes place just before it changes character. As the blood just before it coagulates, as the milk just before it separates, as fried egg just before it turns white […]." 5 The precise emphasis on the in-between of Lage’s art points in particular to the work of art as both outside of and in time. The work of art is a singular point in time, but at the same time it is continually in process. In the borderland between form and non-form, between creation and destruction, it shimmers like a fata morgana . The work is done but at the same time undone. It is only there as a cry in response to the inability to come into being. Akin to the etching is the drawing, but while both, of course, use the stroke or line as their main instrument, the paper does not resist the line in the same sense as the metal-plate of the etching. As a result in Lage’s drawings the stroke frolics in a space with almost no tension at all. There is nothing there to keep the pencil stroke at bay, but at the same time this means that there is nothing there to keep it together. One of the more expressive examples of this is found in an untitled drawing from Tegninger og Text ( Drawings and Text ) from 1999. The drawing consists of one unbroken pencil stroke. It is as if the stroke is confused—it darts around on the paper making doodles on the way or gathers itself in more straight lines in the center of the paper. It is in this manner that the semblance of a body is established. A couple of small circles serve as eyes and are the reason that the rest can be read as both face and body instead of pure abstraction. In fact the unbroken stroke serves as both abstraction and figuration as on the one hand it is the stroke that seemingly outlines the shape of a figure, while on the other hand the unbroken stroke dissolves any truly recognizable figuration by continuously, without end or aim, overflowing the boundaries of the figure. Seen again here is a doubleness to the stroke and the act of creation. In the etching it was all about the tension between the resistance of the material which created the doubleness. Here it is the opposite. It is the lack of tension. The stroke is free to do anything, but has no aim: without some kind of resistance, there is nothing to hold figuration together. It threatens to dissolve into nothingness. Conversely, the drawing can also be seen as a process of becoming. Like a form of automatic writing, the pencil darts around until it finds a point of densification. But even in such an interpretation of the drawing, the figuration appears artificial—it points to itself as the result of the artistic act of creation. The stroke is primarily stroke and only secondarily figuration. With its wild movement it calls attention to itself as stroke. Thus the figuration never becomes something in its own right. It points to the basic principle of creation: Someone has drawn me, I am the result of artistic endeavors, and therefore I am not for myself but always overflowing the boundaries that contain me. It is the stroke that in the very same movement creates figuration and dissolves it. Leif Lage, Untitled , 1999 (drawing) THE LIGHTNESS OF COLOR, THE DENSITY OF PAPER Often the watercolor is used as a precursor for larger paintings, because it has an immediacy in which one can quickly paint the main lines of a composition. However, Lage’s watercolors are not temporary points in a process leading to another final painting. They are not sketches, later to be filled with details in another material. For him watercolor is an end in itself. This also implies that he doesn’t try to work against the paper’s absorption of the water color and its tendency to absorb detail. On the contrary, he examines the possibilities inherent in this blurring of the line and absorption of color. As in the previous examples, there are of course recognizable shapes in Lage’s water colors. But these shapes are rarely separable from color, line or even paper. In other words: the figurative and the abstract more or less become one. One of the reasons for this is that Lage often works on wetted paper which means that the paper hungrily absorbs color into its fabric instead of it being on top of the paper. The paper becomes line because it is the absorption of the color which, together with the brush stroke itself, separates the colors from each other. The line is also color and the color is also line, because there is no separation between the different colors other than the colors themselves. At times this results in almost complete abstraction. In such cases Lage add lines with a pencil as if he wants to hold some sort of figuration together. At other times it is the other way around: the strokes of the pencil are a being dissolved by the water color blurring out the figuration. Untitled 1 from 1999 displays various tones of green. The contour of the colors appears unusually rough. Most of all it is reminiscent of a shoreline which has found its form through the work of thousands of years between water and land. Pockets of resistance surface as islands not yet drowned in color—as paper or color not yet consumed by the dominant color. The shape of the colors does not seem created by the hand of the artist, but rather by the inner workings of the watercolor: color against color over time has resulted in this very image, as if it is all a part of a natural process of change and decay. Despite the fact that there are no strong differences in color there seems to be a struggle taking place in the watercolor. For example, inexplicable holes in the dark color, which cover most of the right side of the watercolor, appear as if the underlying color is eating away the dark color, or that the dark color is in the process of covering up the underlying color. The small pockets of resistance demonstrate a process and development that, almost as a happy accident, evokes a couple of small eyes and a large mouth. Behind the colors a few slanted lines can be discerned, but the hand of the artist has long ago disappeared behind the life of the colors. Thus the watercolor seems to be held at precisely the point in time where figuration randomly appears. The small eyes and wide mouth seemingly express the realization of the figuration’s temporality. It is just a moment in time, soon to be consumed again in the life of the colors. The nature, the background it stems from and is part of, moves on undeterred, continuing its everlasting process of creation and decay. In this sense, the watercolor provides an experience of how neither artist nor man is able to transcend the materiality they consist of. The colors of man, the materials man consists of are “becoming” and “progress” but also “decay” and “disappearance”. The artist’s pencil strokes have been eaten up long ago, and the figuration is living on borrowed time. Human or artistic activity is about creating form, transcending mere matter by shaping and applying meaning to it. But Untitled 1 shows the doubleness of such creation: the transience and fragility of human life. Should the figuration come into being, should it rise and transcend the material, which binds it to its temporal existence, it would become nothing because its very existence is conditioned by the life and work of the colors. In the same sense man cannot escape his own temporality. He too, for better or worse, must accept a life in the volatility of sensation. Leif Lage, Untitled 1 , 1999 (watercolor) In most of Lage’s watercolors there seem to be a stronger artistic control than in Untitled 1 . Most often both the arrangement of colors and the technique in which they are painted express the hand of the artist. An example of this is Untitled 2 from 1999. While figuration in Untitled 1 seemed to appear as a happy accident, the figuration is much more “created” in Untitled 2 . Here the most important parts of the figuration, the eyes, the mouth and part of the skull, are colored black and painted on top of the background’s play of colors. The background primarily consists of blue and yellow tones. Only parts of the paper are covered in color, however, which yet again stresses the act of painting: There is a surface which is being filled by color by an artist. The blue tones are concentrated in the figuration, while the yellow tones surround it. All this means that the figuration stands out more clearly in this watercolor. This is also underlined by the fact that the blue and dark tones cover part of the yellow tones as spots here and there. Thus it is not a background which is in the process of consuming figuration, but rather the emerging figuration which blots out the background. Such an understanding is even suggested by how the mouth and eyes are placed in the larger blue color field. The eyes and mouth are in the center of the watercolor, while the blue color field is placed from center out towards the left side. This gives the impression of a face turned slightly to the right and slightly upwards, which again makes the mouth appear to emerge from the paper. It also helps that the mouth cuts the center axis of the watercolor. In other words, the arrangement of the blue and black colors create some depth and perspective which gives the illusion of a figuration, seen partially in profile, emerging from the background. Seen in profile, the eyes and mouth seem extroverted—they almost seem as if they are put on top of the face. But at the same time they are painted as black holes, sucking in the gaze of the onlooker. The watercolor is even more challenging if one follows what may be the faint outline of the skull, which, on the right side of the watercolor, no longer works together with the blue color, but rather alone postulates the outline of the skull. If not the blue color field, but this line, is the outline of the skull, then all of a sudden the face is not in profile but “en face”—staring directly towards the onlooker. Outline and color seemingly work against each other and establish two different expressions. Without the slightly upward tilted expression of the profile, the eyes and mouth do not seem to emerge from the paper. On the contrary, seen “en face,” the eyes and mouth are really gaping pits of darkness. In this sense Untitled 2 is at the same time surface and depth of perspective. The line gives form but at the same time it dissolves the form created by the colors, and vice versa. Leif Lage, Untitled 2 , 1999 (watercolor) As the last example of Lage’s artistic method, I have chosen another untitled work (as indeed nearly all of Lage’s artworks are)—this time from 2000. This is perhaps one of the most figurative watercolors Lage has created, though that doesn’t tell us too much. The painting depicts a human face in blue and green tones on a yellow toned background. The colors create a clear demarcation between the figure and the background, which compensate for the watercolor’s lack of outline. Beneath the face darker tones imply the beginning of the torso, and nuances of color even hint at something which could be a collar. The hair is in even darker tones and its structure is emphasized using pencil strokes on top of the water color. One eye is marked by a brown spot with a darker spot in the middle, while the other eye is added by pencil. The mouth is a round, red dot. In Untitled from 2000 the work between abstraction and figuration is much less pronounced than in the previous examples cited here. Nonetheless the watercolor has a delicacy to it which almost makes the figuration disappear, even as it appears. This has something to do with the fact that all the individual brush strokes have dissolved. The only outlines are those created by the clash of colors. Even the red mouth seems to be more paint than mouth—unable to be formed truly as anything other than a speck of color with some small semblance to a mouth. In contrast to the other watercolors, there is no movement, no progress or decay, just a vibrating standstill. The figure is not emerging or disappearing but embedded in and as surface, and as such it makes the figure seem stuck in its condition rather than freed by the act of giving form: mouth open as a wound. Pencil strokes add detail and life to the hair as an attempt to help the figure emerge. But all this does is create two levels in the watercolor: The pencil strokes are put on top of the figuration rather than being part of it. Thus they end up highlighting the endless distance between the movement and form-giving of the pencil strokes and the static and stuck figure behind these strokes. Leif Lage, Untitled , 2000 (watercolor) MAN AND THE VIEW OF THE ONLOOKER Lage’s works seem at the same time to be an examination of tensions between form and material in art and a display of an image of man full of the same tensions. This is because the people who are emerging in Lage’s images are not just in his works, They are his works. This means that man is not something emerging from a background but is part of this background and vice versa. The art of Lage inscribes man in its surroundings and background. Man is not the ruler of nature. Man does not rise above matter; there is no truly transcendent position for man to occupy in the art of Lage. Instead man is a part of the very matter, it, at the same time, tries to distance itself from in order to distinguish itself from its surroundings. Man emerges in an attempt not to be line, stroke, color. In an attempt to free itself of matter. Should it succeed in this, however, it would turn into nothing. On the other hand, if man fully accepted itself as mere matter it would disappear in it—in instincts, urges and lack of reflection. The appearance of man is thus subject to a state of being in-between. Only in the tension between material and its negation can the outlines of man be traced. However this also means that in the art of Lage man is never something in itself but always in process—on the way to its freedom and its loss. However, Lage’s art is not just about showing the tensions inherent in man but also about showing such tension on the verge of breaking point. In the moment before everything is done, or when nothing yet has been done, the delicate tension between form and material has been stretched to its utmost in such a way that man’s character of process emerges and is contained on the paper or canvas. Therefore, Lage’s art contain traces of human life. Not only is it an autonomous unity of tensions where man is stretched out between its singularity and the surroundings it is a part of. It is also this pulsation between figuration and material which brings about the traces of human endeavor and activity. Even when man almost seems to have disappeared into the material, strokes and lines are still there as a reminder of human activity and potential creative power—as a reminder that hope is still possible and that man is still there. The view of the onlooker seeks out forms and meaning. It seeks outlines and edges. But first and foremost it is the eyes in Lage’s works of art that allow the onlooker to decode the figuration at play. This creates a distinctive relationship between the onlooker and the artwork. The onlooker tries to wrest the enigma from the artwork, tries to reduce it to solid, meaningful form. But the very same moment that hints at such a possibility sees the view of the onlooker confronted with a gaze of its own. The eyes of the figure in the work of art are most often dark pits, as if they were an illustration of the violence committed against the eyes of the onlookers and their search for meaning. Or as if they were a dark reflection of the onlooker’s failed attempts to delineate the traces of life in the artwork to a solid meaningful form. Therefore, the gaze of the figuration speaks not only of its own powerlessness but also of the powerlessness of the onlooker. When the view or sight has trouble finding solid meaningful forms, it has something to do with the fact that the precondition for sight, light, no longer stems from something transcendent. In Lage’s art there is nothing outside the works of art, nothing outside of human life, and as such nothing to shed light on the works of art or human life and reveal solid meaningful forms. All light comes from within. In a western context, light as a medium for sight is central to the understanding of meaning. People speak of the clarity of thought, while knowledge is tied together with enlightenment, and so forth. But the light no longer originates from a divine point of view. It originates from man, who has created himself in the image of God. The problem with this is that light always covers up its own base. Light illuminates something but at the same time it hides itself. 6 While it was previously God who was unknowable, now it is man. It is also problematic that sight and the medium of sight stem from the same place. Following this thought one can posit two final problems. Firstly, the immediacy and presence established by light by making forms and objects accessible to sight is fake. Light is not some independent entity which present things in a neutral manner for the onlooker. It is inextricably tied together with the gaze’s desire after meaning. In other words: Light perverts the appearance of things because it doesn’t originate from some objective entity which allows them to appear as they are. Instead light is based upon and originates from the subject and its conquering gaze, seeking out meaning and form constantly. Secondly, the joining of sight and light makes introspection within human life impossible. Everything can be illuminated by its use value for the subject but only as long as it is separated from the subject, as long as it is an object. But the subject itself cannot be illuminated. Lage’s art tears down such a dividing line between subject and matter, but it does so without reestablishing a divine position from where the light emanates. Therefore, the light in Lage’s art may not illuminate very well. It may not have the certainty presented by modern science or the religions of yesterday. But it does show what such light tries to hide, namely, the subject as it is in its material reality—inscribed in time and death, which are the basic conditions of materiality, but at the same time also full of life in its joy and will to create. For the onlooker the meeting of the gaze in Lage’s works of art is thus also a destruction of the view of the onlooker. The ability to see is challenged in a radical way. Those outlines will not solidify into static form, as if the light was too dim to see. Just as in Lage’s figurations, the view of the onlooker turns to black: turns towards the onlooker in recognition and becoming—or disappearance. NOTES Max Horkheimer and Theodor W. Adorno. Dialectic of Enlightenment . (Palo Alto: Stanford University Press, 2002): 4-5. Theodor W. Adorno. Aesthetic Theory . (London & New York, 2002): 176. Carsten Bach-Nielsen. “Mere glæde end gru.” Kristeligt Dagblad . September 24, 2002. Leif Hjernøe. “Den yderliggående inderlighed.” LEIF LAGE—Retrospektiv udstilling 1983 . (Copenhagen: Brøndum, 1983): 18. Ibid. Maurice Blanchot. The Infinite Conversation . (Minneapolis: University of Minnesota Press, 1993): 162-163. (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)

PHILOSOPHY OF HUMAN RIGHTS: HUMAN RIGHTS IN LIGHT OF THEIR INTERNATIONAL PROTECTION Summary The book consists of two main parts: in the first, on the basis of an analysis of international law, elements of the contemporary conception of human rights and its positive legal protection are identified; in the second - in light of the first part -a philosophical theory of law based on the tradition leading from Plato, Aristotle, and St. Thomas Aquinas is constructed. The conclusion contains an (...) application of the results of the analysis conducted in the second part. The first part comprises four chapters. The first aims at revealing characteristics of human rights on the basis of an analysis of historical conditioning of the inter-national law of human rights and its development. The historical context displays the practical, vindicative, and critical character of the positive legal protection of human rights. Moreover, the process of change of positive human rights law is distinguished from the process of change of human rights as such. In the second chapter the content of human rights - a topic which is only auxiliary to the conducted analysis - is discussed. Basic typology and catalogues of rights proclaimed in the Universal Declaration of Human Rights and protected in the International Covenants of Human Rights are presented. The review of the content of rights aims at a more precise limitation of the field of research. The examination shows a diversity of rights which poses a serious challenge to the coherence of every philosophical theory of human rights. In the third chapter, central in the first part, international law is analyzed with regard to the characteristics of rights and the foundations of them. The analysis of documents shows a number of solutions referring to the anthropological foundations of rights. The inherent dignity of the human person is the source of all human rights. Each human being is recognized as free, and endowed with both reason and conscience. In the propounded conception of man individuals are not rivals but create a community which is a condition for their development. International law characterizes the rights as universal, inherent, inalienable and inviolable. The reconstructed conception also comprises the following basic elements: on the level of the structure of rights, a recognition of their equality, interdependence, and comprehensiveness; in the grounding of these rights, a recognition of the anthropological foundations of law; in the conception of positive law, a recognition of the secondariness of the positive law of human rights to human rights themselves, and a recognition of human rights and justice as the basis for legal order; in the conception of state, a recognition of the well-being of the individual as the fundamental aim of actions undertaken by political institutions, and recogni¬tion of rights which form an impassable boundary to the power of the state, includ¬ing its legislative actions. The characterization of the international legal paradigm serving for the under¬standing of human rights is supplemented by analyses of the structure of their posi¬tive legal protection. Various meanings of the terms "right" and "freedom" are distinguished. Subjective right, as basic structure of the positive legal protection of human rights, is understood as a complex relation formed by various legal situations of the subject of a right which create a functional whole in respect of the subordi-nation of human person to its good. Subordinating person to a good proper for it, expressed usually in a proclamatory norm, is the central element of particular rights around which further elements aiming at the realization of this good are built. In the second part of the book a philosophical theory is developed which allows for the location of a coherent foundation for the presented characterization of human rights and their positive legal protection. This part consists of two chapters. The first includes a review of some - not entirely satisfactory - means of founding of human rights; the second presents philosophical conceptions of law and man which may form a basis for the constructed theory. The review of arguments contained in the first chapter does not aim at a detailed analysis of various specific ways of argumentation encountered in works on this subject but rather at a concise presentation of the main possible lines of argumentation. These analyses also serve to emphasize the positive solutions which are pro¬posed later and to underscore the explanatory power of the elaborated theory. This theory, retaining accurate intuitions contained in the presented types of argumenta¬tion, helps in avoiding their consequences which are difficult to reconcile with the reconstructed paradigm of human rights. Efforts to base human rights on the norms of international law rightly take into account the necessity of determining the content of the rights and their positive legal protection as a means for the realization of man's good. These attempts, how¬ever, do not properly take into account the inherent character of human rights, which are independent of positive law and provide grounds for applying specific legislative measures and not others. Founding human rights on freedom accurately points at the freedom of an indi¬vidual as a constitutive element of some rights; however, absolutization of freedom leads, to a loss of an important element of the contemporary paradigm of under¬standing human rights. This foundation undermines recognition of the fact that human rights may set limits to both the freedom of others and the freedom of the subject of rights itself. Additionally, attempts at the so-called axiological justification of human rights are discussed. This type of justification has a few variants depending on the as¬sumed conception of value. Subjectivistic conceptions have similar advantages and disadvantages to the conceptions basing human rights on freedom; objectivistic conceptions while providing for the universality of human rights place, the fundamental aim of human rights protection beyond the individual human being - in the idealistically existing world of values; finally, conceptions rooting values and human rights in culture, while accurately noting that human rights are learned through the medium of culture, place the source of human rights beyond a concrete individual - in culture and processes which take place in it - which leads to difficulties in finding a basis for the universality of rights. Furthermore, attempts to ground human rights in specific characteristics of the human being are presented. This type of approach points to an important problem of dependence of the content of rights on what man is. However, recognition of specific characteristics of a human being as an ontic foundation of the existence of rights poses a danger to their universality since one has to accept that it is not enough to be a man to be a subject of rights, but a man possessing specific charac¬teristics. The second chapter aims at outlining solutions worked out by Saint Thomas Aquinas. For a fuller understanding of his propositions selected elements of Plato's and Aristotle's philosophy are presented. It was them who formulated the founda¬tions for reflection on law and justice in the ontological context. A qualification is made that Stoicism is not be analysed in depth. Although Thomas' concept of law was undoubtedly developed under the influence of the Stoic doctrine as well, it is not in this that one should look for the tools to understand the ontic foundations of human rights and law in general since the Stoic moral philosophy and philosophy of law were developed in the context of a theory of being which assumed monistic and pantheistic premises as foundations, leading to the recognition of a total subor¬dination of the human individual to a larger unity of which man is only a part. The analysis of Plato's and Aristotle's texts concentrates on problems of justice. Plato seems to be the first philosopher who reflected on the formula basic in the history of European thought: to render to each his due. It appears that justice as both a characteristic of man and his acts is understood in the perspective of that which is just, that which is a good for another man - the recipient of the act. The basis for determining what is just is the relation of correspondence between some¬one and something. While in the case of Plato this relation is based on something beyond its terms, namely on ideas, in the case of Aristotle the relation occurs on account of the elements of the relation itself. Something is just when it contributes to the develop¬ment of the recipient of an act realizing that which is just. At the same time, the realization of that which is just is a good for the agent. In the analysis of the just two types of relation are revealed: the relation of due-to-recipient occurring on account of the compatibility of that which is due, with the recipient of the act; and - a "superstructure" - a relation of obligation-of-subject occurring on account of the compatibility of the acting subject with the thing which should be done. The basis for being that which is due is formed by various potentialities of development of man - the recipient of agency; the basis of being that which is an obligation is the possibility of development of the subject of action. Aristotle distinguishes various types of freedom and points to the necessity of taking them into account in the discussion of justice. Among other things, as the core of man's freedom, he considers life for its own sake, which can be seen as his expression of the basic indices of the autotelic character of man - which is funda¬mental for later conceptions of dignity. The freedom which is described by him is not, however, inherent and inalienable; being free is conditioned by a factual possi¬bility of undertaking actions, which are not solely means to the realization of aims set by others. Thomas Aquinas takes over the Aristotelian research perspective both in his conception of man and of law. At the same time, however, he significantly enriches it. In anthropology he develops a conception of personal being. Drawing upon his distinction between existence ("that something is") and essence ("what something is"), he sees the basis for being a person in the dignity of personal being which is a certain way of existence of a rational being more perfect than that of non-personal beings. The person is a being which, by virtue of its act of existence, is individual¬ized in a specific way. It is an aim in itself. Expressing it in a negative way, one may say that it does not exist as a means for the realization of the aims of others and, in this sense, that it is free. As distinct from Aristotelian conclusions, being a person is not conditioned by the specific actions of a being. Dignity is inherent, based on that which is the foundation of the factual existence of every rational being. Although freedom requires that a being is rational, dignity still encompasses all being, all its properties and potentialities. Thus an act conforming with dignity has to take into account a whole human being. Among different types of that which is just, ius, the first place, from the point of view of understanding law, falls to "the just thing itself ("ipsa res justa"), which is right in the full meaning of the word. On the one hand, it is that which is due; on the other hand, it determines the way of acting in the utmost degree, since the course of every act is determined in the fullest extent by its aim. The content of ius may be determined both by elements independent of free decisions - ius naturale - and by free decisions taking into account the state of things - ius positivum. Recognition of the objective structure of being as the basis of law does not entail that it is possible or desirable to determine unequivocally "the only right" patterns of conduct. This concept is very well justified within the system proposed by Saint Thomas. Individualization of being is a significant element of the develop¬ment of a person as a person. It is attained by the realization of individual aims which are not unequivocally determined by circumstances and the nature common to all people. By virtue of free choices made in the sphere of that which is not by its nature unjust, the object of action becomes ius. Since in the realization of the person the individualization of human being is central, Aquinas clearly sees the need for the protection of the sphere of "dominion of will". This sphere itself constitutes ius naturale, something which is due to man independently of the acts of will. Therefore "law should forbid nothing which is not unjust" ("nihil debet lege prohiberi quod licite fieri potest", In 3 Sent., dist. 40, q. I, a. 1, 3). Besides the relation of due-to-recipient, ius also includes the relation of obligation-of-subject which is superimposed on the relation of due-to-recipient. As far as the ontic foundations of obligation are concerned, in explaining why man is subordinated to realization of the good of others, Aquinas generally follows Aristotle in accepting that this basis is the subordination to moral good - to actions conforming with the learned truth about reality. Aquinas' systemic solutions allow, however, to reach deeper and understand why moral development is also a development of the whole human being. This was difficult within Aristotle's system, since he was reluc¬tant to decide whether precedence should be given to intellectual or moral develop¬ment. The inclination to realise good of another appears to be a transcendental characteristic of being, based on its very existence. Morality understood as rational and free subordination to realize the good of another is a specifically personal way of the realization of this inclination. Thus just actions contribute to the actualization of being in the aspect of its existence and therefore to the actualization of being as a whole. Thomas' conception of natural law (lex naturalis) as participation in eternal law (lex aeterna), offers possibilities for grasping that which is just as something which is basically accessible cognition, independently of Revelation and independently of faith in God, and at the same time as something based in eternal law, understood as a design of God's wisdom. Eternal law, embracing all particular actions, is not, from the human perspective, accessible cognition directly. It is enacted in the struc-ture of the created being and - in case of human beings - in free choices taking this structure into account. In the concluding remarks, the results obtained earlier are applied directly to the contemporary conception of human rights. Human rights are understood in the first place as "just things" - concrete goods of man; as that which is due because of subordination, based on dignity, to the personal development of man. That which is just is understood as a relational - actual or potential - state of things, which exists by virtue of existing relations. Evaluations referring to that which is right are true when respective relations of due-to-recipient take place; norms of conduct are true when respective relations of obligation-of-subject take place. Examples of the application of the sketched theory outside the field of human rights are also presented. Procedural consequences of the developed theory are shown, such as the discrimination of two types of legislative procedures which differ significantly in the structure of argumentation: the first aims at recognition of that which is just independently of the will of the legislator, and the second, at making individual or collective "projects" of development compatible. Finally the possibilities of applying the theory to the increasingly important problems of the protection of the environment and the "rights" of animals are mentioned. The central issue is a philosophical conception of man and his freedom and a conception of law. It is also indispensable to turn to a general theory of being. The search for a comprehensive theory of human rights requires attention to the Abso¬lute Being - God - as well. This is important for at least two reasons. First, a conception of the Absolute Being is integral to philosophy of the systemic type -of which the present book is a piece. A conception of the Absolute Being is signifi¬cant for understanding all being, including, first of all, man as a personal being. Second, every theory of human rights which does not comprise the problem of the Absolute may be questioned as to whether solutions adopted in it do not lead, in consequence, to eliminating God from the perspective of the understanding of law. It is desirable that a philosophical theory should deal with this problem directly. A theory which eliminates God from the perspective of the understanding of rights will be unacceptable for all those who, for philosophical reasons or relying on faith, consider God as the author of inherent rights. Nevertheless, a theoretical approach to rights from the perspective of the Absolute Being should only be a possible extension of a philosophical approach which bases rights on something which is cognizable independently of the acceptance of the existence of God so that the theory is also acceptable for those who reject the existence of God or suspend their judgment on this subject. The pursued theory should therefore contain, on the one hand, reference to natural, faith-independent foundations of human rights, but on the other hand, point to a possible extension accounting for the Absolute Being. The analyses contained in this chapter have undoubtedly some historical value since they are based on source texts. Nevertheless, the use of these texts and not critical works was dictated, first of all, by a conviction that analyses embrace a given theory in the aspect selected by the interests of the researcher. Therefore to find out what past thinkers say on the subject characterized in the first part it is simpler to reach to the sources than to adopt the existing critical works. The pre¬sented reconstruction of Aquinas' views on philosophy of law incorporates proposi¬tions of supplementing and developing some of the ideas undertaken by him. Obligation to act in this and not an other way arises because human actions are subordinated to the conformity, on the one hand, of aims realized by these actions and, on the one hand, the order of being determining that which is favourable to man or destroys him. The content of the order of being is, on the one hand, determined by the structure of being independent from man's will and, on the other, by free decisions of man. (shrink)

Rule-applying legal arguments are traditionally treated as a kind of syllogism. Such a treatment overlooks the fact that legal principles and rules are not statements which describe the world, but rather means by which humans impose structure on the world. Legal rules create legal consequences, they do not describe them. This has consequences for the logic of rule- and principle-applying arguments, the most important of which may be that such arguments are defeasible. This book offers an (...) extensive analysis of the role of rules and principles in legal reasoning, which focuses on the close relationship between rules, principles, and reasons. Moreover, it describes a logical theory which assigns a central place to the notion of reasons for and against a conclusion, and which is especially suited to deal with rules and principles. (shrink)

Illuminates legal reasoning -- and its justification At least since plato and Aristotle, thinkers have pondered the relationship between philosophical arguments and the "sophistical" arguments offered by the Sophists -- who were the first professional lawyers. Judges wield substantial political power, and the justifications they offer for their decisions are a vital means by which citizens can assess the legitimacy of how that power is exercised. However, to evaluate judicial justifications requires close attention to the method of (...) class='Hi'>reasoning behind decisions. This new collection illuminates and explains the political and moral importance in justifying the exercise of judicial power. Explores enduring questions Focusing on work over the past century, the essays address important recurring questions, such as: When a judge or a lawyer reasons to a conclusion about what is legally required in a given case, must he also ask what is morally required? To what extent do a judge's personal, political, or moral biases affect his legal reasoning? What is the impact of such biases? Can all such biases be avoided? Is legal reasoning similar to reasoning in mathematics, logic, and linguistics, the physical sciences, the social sciences, or literature and history? Do formal logical modes of argument play any roles in legal reasoning? Solid coverage, well organized The articles were chosen to present some of the most influential works on the topic, as well as less familiar works that are thought provoking and informative. Each volume also offers a representative range of theoretical approaches to its topic, contains an introduction that locates the subject within the larger framework oftheories of legal reasoning and jurisprudence, and includes bibliographical notes on further readings. Many 19th century legal theorists argued that deduction is the central mode of legal reasoning, and that legal argument is like a deductive proof in mathematics or logic. They were attracted to this "deductivist" concept because it suggested that legal reasoning could be politically and morally neutral. This volume brings together some of the most thought-provoking articles on both sides of the debate. It also contains several leading articles that explain the role of probabilistic judgments and presumptions in various types of legal arguments, including the laws of evidence and criminal procedure. The collection is a solid introduction to the basic modes of logical argument in legal reasoning. (shrink)

The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred--and divided--by the opinions of the Supreme Court, especially in the area of race relations, where the Court has tried to revolutionize American society. But these stirring decisions are aberrations, says Cass R. Sunstein, and perhaps thankfully so. In Legal Reasoning (...) and Political Conflict, Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Sunstein offers a close analysis of the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. Why? For one thing, critics and adversaries who would never agree on fundamental ideals are often willing to accept the concrete details of a particular decision. Likewise, a plea bargain for someone caught exceeding the speed limit need not--indeed, must not--delve into sweeping issues of government regulation and personal liberty. Thus judges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning--and as a central part of constitutional thinking in America, South Africa, and Eastern Europe-- he takes issue with advocates of comprehensive theories and systemization, from Robert Bork to Jeremy Bentham, the father of utilitarianism, and Ronald Dworkin, who defends an ambitious role for courts in the elaboration of rights. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. For example, he cites Griswold v. Connecticut, a groundbreaking case in which the Supreme Court struck down Connecticut's restrictions on the use of contraceptives by married couples--a law that was no longer enforced by prosecutors. In overturning the legislation, the Court invoked the abstract right of privacy; the author asserts that the justices should have appealed to the narrower principle that citizens need not comply with laws that lack real enforcement. By avoiding large-scale issues and values, such a decision could have led to a different outcome in Bowers v. Hardwick, the decision that upheld Georgia's rarely prosecuted ban on sodomy. And by pointing to the need for flexibility over time and circumstances, Sunstein offers a novel understanding of the old ideal of the rule of law. Legal reasoning can seem impenetrable, mysterious, baroque. This book helps dissolve the mystery. Whether discussing the interpretation of the Constitution or the spell cast by the revolutionary Warren Court, Cass Sunstein writes with grace and power, offering a striking and original vision of the role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: the legislatures elected by the people. (shrink)

The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred--and divided--by the opinions of the Supreme Court, especially in the area of race relations, where the Court has tried to revolutionize American society. But these stirring decisions are aberrations, says Cass R. Sunstein, and perhaps thankfully so. In Legal Reasoning (...) and Political Conflict, Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Sunstein offers a close analysis of the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. Why? For one thing, critics and adversaries who would never agree on fundamental ideals are often willing to accept the concrete details of a particular decision. Likewise, a plea bargain for someone caught exceeding the speed limit need not--indeed, must not--delve into sweeping issues of government regulation and personal liberty. Thus judges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning--and as a central part of constitutional thinking in America, South Africa, and Eastern Europe-- he takes issue with advocates of comprehensive theories and systemization, from Robert Bork to Jeremy Bentham, the father of utilitarianism, and Ronald Dworkin, who defends an ambitious role for courts in the elaboration of rights. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. For example, he cites Griswold v. Connecticut, a groundbreaking case in which the Supreme Court struck down Connecticut's restrictions on the use of contraceptives by married couples--a law that was no longer enforced by prosecutors. In overturning the legislation, the Court invoked the abstract right of privacy; the author asserts that the justices should have appealed to the narrower principle that citizens need not comply with laws that lack real enforcement. By avoiding large-scale issues and values, such a decision could have led to a different outcome in Bowers v. Hardwick, the decision that upheld Georgia's rarely prosecuted ban on sodomy. And by pointing to the need for flexibility over time and circumstances, Sunstein offers a novel understanding of the old ideal of the rule of law. Legal reasoning can seem impenetrable, mysterious, baroque. This book helps dissolve the mystery. Whether discussing the interpretation of the Constitution or the spell cast by the revolutionary Warren Court, Cass Sunstein writes with grace and power, offering a striking and original vision of the role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: the legislatures elected by the people. (shrink)

This dissertation develops, justifies, and examines the jurisprudential implications of a non-monotonic theory of common law legal reasoning. Legal rules seem to have exceptions but identifying all of them is difficult. This hinders attempts to formalize legal rules using classical logics. Non-monotonic logics allow defeasible inference, permitting rules that hold generally but can be defeated in the presence of exceptions. This ameliorates the problem of characterizing all exceptions to a rule, because exceptions can be added piecemeal (...) while the rule remains. The first portion of the dissertation rebuts a prominent criticism leveled at a large class of theories of legal reasoning that includes my theory. The charge is that no coherent theory can recognize both the difference between distinguishing and overruling, and the constraint of precedent. The critics argue that is more important than and that can only be explained by monotonic legal rules. Drawing on cognitive psychology as well as legal theory, I show that coherent theories, such as my own, can accommodate both and. The second chapter provides motivation for understanding precedential constraint in terms of non-monotonic default rules and introduces my positive theory, which elaborates on John Horty's work in treating legal rules as prioritized defaults involving reasons. I motivate and implement a relaxation of Horty's restrictions on the form of rules to allow a more fine-grained characterization of precedent. Finally, I explore the relationship between these relaxations and the concept of precedent. The final section explains how my theory fits into the traditional jurisprudential ecosystem. I demonstrate that, contrary to assertions in the legal theory literature, this non-monotonic approach is entirely compatible with positivism's commitment to extracting rules from authoritative legal sources, namely court opinions. I also suggest how it might be attractive to law and economics theorists, pragmatists, and followers of Dworkin. (shrink)

Why should one person obey another? Why (to ask the question from the first-person perspective) ought I to submit to another and follow her judgment rather than my own? In modern political thought, which denies that some are born rulers and others are born to be ruled, the most prominent answer has been: “Because I have consented to her authority.” By making authority conditional on the subjects’ consent, political philosophers have sought to reconcile authority’s hierarchical structure with the equal (...) moral standing of governor and governed. Yet such consent accounts of authority have long been deemed problematic on a number of grounds, not the least of which is that few citizens have given their consent to the state under whose laws they live. So unless we are willing to deny the state’s authority over those who have not consented, or revert to the pre-modern assumption of a natural political hierarchy, we must find another way of reconciling authority with our standing as free and equal moral agents. In recent political and legal philosophy, the most influential solution to this problem has been Joseph Raz’s service conception of authority, according to which legitimate authority, while it does not require the consent of the governed, must exist for their sake, or serve them. The normal way to justify someone’s authority, on the service conception, is to show that, by treating her directives as binding, the subjects are likely better to conform to reasons that apply to them anyway. The service conception has, however, recently been criticized (by, among others, Thomas Christiano, Scott Hershovitz, and Jeremy Waldron) for being insufficiently attuned to the significance that procedural, and in particular democratic, features of political and legal institutions have for the justification of their authority. If these ‘democratic critics’ are right, then two commitments that many in the liberal-democratic tradition may find independently attractive turn out to be in tension: the liberal idea that authority is normally legitimate only insofar as it serves its subjects, and the democratic idea that legitimate authority can (and regularly does) rest on fair procedures. In this article I argue that the critics’ arguments rest on a misunderstanding of the service conception; yet their worries point the way to an under-appreciated and interesting view of democracy as an authoritative arbitration procedure. After introducing the service conception’s view of justified authority, I briefly distinguish a broad and a narrow interpretation of it, and suggest that we should embrace the latter to make sense of the idea that political authority serves its subjects (Section I). Next I turn to the objection raised by the democratic critics: the service conception, they say, cannot make room for the intrinsic fairness of democratic procedures because it is preoccupied with the quality of outcomes (Section II). But, I argue, the objection rests on an illicit identification of two different kinds of outcomes: the outcome of the decision-making procedure on the one hand, the outcome or result of treating that first outcome as authoritative on the other. Distinguishing between these is crucial for an adequate understanding of democracy’s authority. While the service conception is indeed organized around the latter, this does not commit it to an exclusive concern with the former; yet it is a singular commitment to the former that is problematic from a democratic point of view (Section III). To bring home this point, I sketch a model of authority as arbitration that is frequently overlooked in recent discussions of authority even though it is centrally concerned with procedural (and ultimately democratic) values and fits squarely into the service conception of authority (Section IV). (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reasons, Responsibility, and FictionBenedict Smith (bio)Keywordsresponsibility, reflection, reasons, fictionCartwright's article considers two candidate theories of responsibility and examines their relative adequacy by assessing them in light of our reactions to a dramatic and horrifying set of circumstances. Cartwright initiates the dialectic by noting how our intuitions are in conflict. For instance, although we are instantly horrified by the murders Harris perpetrated, we might naturally experience quite different emotions and (...) reach different judgments when we reflect on the miserable and pathetic nature of Harris's upbringing and his experiences in adult life. Although we might think that Harris is responsible in a very clear sense for murdering his victims, we might feel also that his actions were the outcome of factors beyond his control, and for which he cannot be held responsible. In short, we think that Harris is and is not responsible.Overall, Cartwright's aim is to: "illuminate both the theory and practice of holding people responsible" (2006, 144). In the end, what is illuminated is that "the practice of responsibility unavoidably depends on one sort of pretence or another" (2006, 155). Although the two theories that Cartwright has chosen to consider differ in various ways, they share a common feature of being, in some sense, "fictitious." The article examines in some detail the two theories of responsibility and succeeds in providing insight to some potentially intricate material. In this brief commentary, I cannot address adequately the variety of interesting aspects and implications of Cartwright's paper. I do, however, offer some critical interpretation of Cartwright's construal of the theories under consideration, and also say a little about the status and role of fiction in Cartwright's analysis.Responsibility and the "Reflective Self"According to Cartwright, a central commitment of the "reflective self" view of responsibility is that a rational part of the self is responsible for deliberating about and reflecting on desires, and that the reflective self is the author of action (or at least authorizes the origins of action). The critical capacity of this part of the self endorses or rejects desires, and thus determines whether or not desires manifest in action and display constitutive elements of personality. The reflective self is autonomous with respect to the desiring part of the self; the former can arbitrate over desires precisely because it enjoys this sort of rational autonomy. This internalist conception of reflection and rationality has a long tradition, one that has exerted influence in a number of domains including [End Page 161] moral psychology and psychotherapy. It is well known that Anthony Kenny claimed that the very idea of "mental health" was Plato's invention (Kenny 1969, 229).1 The Platonic picture rests on understanding the soul as capable of proper functioning and in a state of health only when the relevant constitutive elements are brought into a form of cooperative harmony.2 Pivotal in reaching this harmony, is the extent to which desires are supervised by the capacity for rational self-governance. For the present context, the important claim is that there exists an autonomous and internal-to-subject faculty that specializes in rational reflection on desires, and that can be brought to bear on desires in such a way so as to motivate and justify subsequent action.This is close to the central commitment of the reflective self view that considers responsibility as primarily an internal matter of the relation between desires and rationality. Responsibility is connected to the ability of an agent to exercise some cognitive faculty that passes critical judgment on the desires that the agent possesses; such a faculty endorses or rejects desires. The reflective self view has at its center the thought that responsibility is related to the appropriate functioning of some internal process. However, unless the rational faculty of humans is infallible, there needs to be some account of the correctness of each act of desire endorsement or rejection. There must be something that explains why any particular endorsement, say, is justified; some further ground the appeal to which provides guidance and justification for the rational self. But this just pushes the explanatory burden further back and generates, as Cartwright notes, a regress. Nonetheless... (shrink)

The trend to centralization of the Mizrahi narrative has become an integral part of the nationalistic, ethnic, religious, and ideological-political dimensions of the emerging, complex Israeli identity. This trend includes several forms of opposition: strong opposition to "melting pot" policies and their ideological leaders; opposition to the view that ethnicity is a dimension of the tension and schisms that threaten Israeli society; and, direct repulsion of attempts to silence and to dismiss Mizrahim and so marginalize them hegemonically. The Mizrahi Democratic (...) Rainbow [The Keshet], the most prominent proponent and representative of this trend, was established in the 1990s with the intention of being a leading civic and political body in Israeli society. While it was the Mizrahi worldview that led to selection of the organization's name and aims, their vision was to be involved in social struggle on behalf of other groups in Israeli society. Since it was established, The Keshet has aimed to function as an assertive, long-term alternative coalition exerting influence, power, and pressure on the Israeli narrative network. And, indeed, the organization has succeeded in disrupting Israeli discourse, principally, by challenging the ideological foundations of the Zionist meta-narrative. Nearing the end of the first decade of the 21st century and nearly a decade since it was established, The Keshet not only represents the most current wave of Mizrahi discourse, it has changed it to such a great degree that it is impossible to ignore its influence. Further, this alternative narrative may have significant potential to advance the internal Jewish discourse so fundamental at this time given the changing Israeli situation and regional conditions. And, while it is possible to view The Keshet and this new narrative as a continuation of the Mizrahi struggle, as a narrative The Keshet's agenda represents a post-colonial perspective and multi-cultural alternative to Zionism as a social vehicle. Amidst all of this, The Keshet continues to offer concrete proposals to change the Jewish character of the state as well as its internal and external relations. One of the primary goals of this study was to examine the rise of the Mizrahi narrative over the last two decades and the new Mizrahi discourse in Israeli society. More specifically, the study sought to attain an in-depth understanding of the central narrative created and represented by The Keshet. An additional goal was to investigate the influence of The Keshet's activity and the narrative it constructed in regard to other narratives. In particular, the study focused on The Keshet's opposition to the central Zionist narrative that infuses civic, political, and academic frameworks in Israel. Accordingly, the primary research questions investigated in the study sought to determine: What has been the influence of the Mizrahi Democratic Rainbow on the Mizrahi narrative in Israel? And, what are implications of such influence for the central Zionist narrative? Methodologically, the study was based on narrative and comparative analyses of texts from different periods of the older and newer Mizrahi narratives. The corpus included two types of texts: First, academic texts and opinion pieces, both philosophical and programmatic in nature, published in magazines, journals, books, as well as position papers; second, all of the texts published by prominent and influential figures who charted the path of The Keshet or led it organizationally and/or intellectually over the last twenty years (e. g., Yehudah Shenhav, Yossi Yona, Moshe Krief among others). All texts were examined by means of philosophical, historical and critical hermeneutic tools. This analysis revealed different levels of Mizrahi and civic discourse in Israel as well as among The Keshet's founders and leading ideologues. The study was based on a three stage process model, developed for purposes of this study, for investigation and analysis of the new Mizrahi narrative as well as other oppositional narratives, in particular opposition to the hegemonic meta-narrative. The stages are: issuing the challenge, dissolution and, liberation; that is, liberation is the measure of the ultimate success of the struggle for narrative change. Such change is not based on success in the field, but rather on a radical, fundamental reversal of thought, discourse patterns, stylistic structures, as well as forms of questioning - in this case of taken-for-granted racist mechanisms. However, the principal change is in achieving a deep, inner de-legitimization of the signifiers, categories, and reproductions of all manner of mockery that are based on immoral colonialist processes that are reinforced by regimes of fear and intimidation whose self-destruction began upon their very creation. This three stage model charts the course of the oppositional Mizrahi narrative from: accounting for the past (passing judgment on the so-called historic colonialist Zionism) to writing a new (pure Mizrahi) history and creation of a Mizrahi-Arab identity separate from the Ashkenazic, identified as Zionist. Contemporary post-colonialist discourse is integral in these stages. Such a perspective has been transformed by transitions from - binarism to hybridity, Orientalism to Occidentalism, the politics of "liberation" to "constructive" politics, from the history of consciousness to the history of change, as well as from nationalist to post-nationalist questions. Fundamentally, according to this approach, political and other struggles for the emerging narrative of Mizrahi (or Arab) history seek to centralize it in society and weave it amidst the models of multiculturalism. Undertaken in parallel, the central characteristics of all these stages are borrowed from countries in which the need for national reconciliation led to renunciation of apartheid and racist policies and historical judgment of the hegemony supported by racist leaders. In addition, these three moves were undertaken in Keshet and its ideologues by means of substantive symbolic violence directed at the hegemonic Ashkenazic discourse, which included creation of hatred of it, use of stereotypes the opposite of oppressive discourse, and adoption of an arrogant point of view toward it. This stands in stark contrast to the claims of the self-proclaimed new Mizrahi stance of a discourse established on purely ethical grounds that sought to cleanse itself of these very same oppressive elements. The model developed for and demonstrated in this study allows for analysis of oppositional narratives in which the libratory stage evolves into a form of entrapment, as appears to be occurring to the new Mizrahi discourse. This conclusion is based on the observations shared by many Keshet proponents including leading intellectuals who worked on the manifestos that were the subject of criticism from the Zionist camp. The study identified and defined the following six interwoven strata, which for purposes of explication are each discussed in a separate chapter: The first chapter presents a general theoretical discussion of the issue of the narrative and the inter-narrative struggle that has become central and applicable in various ways in the latest generation (e. g., anthropologically, hermeneutically, and philosophically). The analysis surveys different discussions in the inter-narrative struggle and locates them in the contexts, relations, and meanings derived from, representing, and indeed reproducing the narrative of national identity. The second chapter includes a historical survey of the older Mizrahi struggle that existed prior to the ascendance of the new Mizrahi narrative. Initially, Mizrahi discourse focused on expressing the ethnic protest that grew in years to follow. These feelings of discrimination and social distancing of the immigrants from Islamic countries gave birth to expressions of protest, the most prominent of which were Wadi Salib and the Black Panther Movement's various activities. The research literature contains many explanations for the exacerbation of the ethnic problem and creation of a situation that could not be ignored. The consensus academic view reached at the end of the 1970s identified a number of primary factors for this situation: the existence and extensive numbers of different ethnic groups; the relative or absolute segregation of frameworks within which members of these ethnic groups lived and acted; and the significant overlap between socio-economic status and feelings of discrimination retained by members of the Mizrahi group due years of neglect by the Ashkenazic establishment, the strengthening of Mizrahi social, cultural, and political power, as well as the emergence of a Mizrahi elite that identified with Mizrahi problems. The severe consequences of feelings of discrimination were expressed in a long series of events, such as: rioting by residents of the Rehovot Sharayim neighborhood in 1956; events of Wadi Salib in Haifa in 1959; and a chain of activities involving the Black Panthers in the 1970s. Protest was also an aspect of the "tent movement" in the 1970s and 1980s. Political activities were advanced by the Tami Movement that competed in the election for the 10th Knesset in 1981 and the Shas Movement that has continued to garner political power since being found in 1984. The 1980s and 1990s were characterized as the era of radical consciousness of Mizrahi discourse as well as by the rise to power, in consecutive order, of the political parties – Tami, Shas, and the Mizrahim HaHadashim [the New Mizrahi]. The latter party laid the foundations of the new radical Mizrahi discourse from which emerged such cultural activities as: Iton Aher [A Different Newspaper]; Bimat Kivon Aher [Another Direction Forum]; Efir'yon journal; the Halah Organization for Education in Neighborhoods, Development Towns, and Villages; Kedma; the newspaper – Patish [Hammer]; and, eventually the establishment of Keshet. The third chapter presents an examination of the materialization of the inter-narrative struggle in the case of Israel, with a specific focus on The Keshet and the new Mizrahi narrative advanced by it and intellectuals. The Keshet ideology is examined in the context of its grounding in post-colonial thought, especially that of Edward Said; the directions proposed by Ella Shohat and her followers; the central thinkers of the narrative in Israel in the last decade; and the harsh critique leveled at the Ashkenazic-Zionist narrative. The practical steps proposed for implementation within the multicultural model are also examined. Here the effort to reduce the centrality of Zionism while revealing its oppressive mechanisms was undertaken in parallel with use of these mechanisms in order to create a Mizrahi space with broad margins inclusive of alternative forms of Israeli identity in the Middle East and in conjunction with Arabs within and beyond Israel. Mizrahi traditionalism is examined in the fourth chapter in two particular respects. First, the criticism of the new Mizrahi narrative leveled by the renewed view and, second, the implications of the alternative in terms of creating a Mizrahi space that does not oppose Zionism. Rather, in opposing the post-colonialist perspective, this renewed traditionalist perspective criticizes as well as values Zionism. This space seeks to be both Jewish and Mizrahi. It does not detach itself from nationalist Zionism but rather views itself as a continuation of this tradition and, accordingly, is an effort to develop a next stage in its development. For example, an essential dimension of the traditionalist perspective, "commitment," is considered in this stage to be a fertile basis for dialogue with the past and as an anchor for contemporary interpretation of Mizrahi and other Jews' identities in Israel. The fifth and sixth chapters deal with all of the vectors of criticism directed at the new Mizrahi narrative, including its ideological foundations, philosophical stance, as well as intellectual and practical basis in the Israeli sphere in the face of Palestinian nationalism. These vectors of criticism from within and beyond The Keshet deal with issues, such as, the meaning of the movement's activities and the narrative that it offers regarding questions of Israeli identity, Israeli collective memory, and Mizrahi self-perception. At the same time, it must confront the capitalist neo-liberal narrative in a global world and thrive in a context in which it must make itself manifest amidst oppositional narratives. The final chapter presents a comprehensive, critical analysis of the new Mizrahi narrative. It does so by means of a theoretical model that examines it as an oppositional narrative – one that seeks to challenge the hegemonic meta-narrative, to dissolve the boundaries of the narrative discourse, and to propose liberation and redemption that may led to entrapment amidst a changing, a-dichotomous realities (e. g., global economic development in the face of Zionist nationalisms that display ideological strength as well as development of the sense of being an Israeli that maintains its vitality and continuity while being constituted by sectors that challenge being a Mizrahi, such as co-ethnic subjects. The Keshet's influence is dramatic and extends in a number of central directions. Its political activity and non-entry into the domains of the Israeli parliament granted the movement significant power in civic discourse and contributed to changing the persona of the Mizrahi discourse; for example, from political-party struggles over budgets and obtaining shares of the regime to changing the face of Israeli society and the centrality of the Mizrahi narrative. This change included deconstructing the Ashkenazic narrative and constructing comprehensive Ashkenazic-Zionist guilt, as evident in the Ehud Barak's request for collective forgiveness. This was accomplished through the participation of leading members of Keshet who appeared in prominent intellectual forums and engaged in lively discourse - principally in academic, social, and media domains. Such participation gave new meaning to various aspects of Israeli society while establishing different models of multiculturalism. The rise of the new Mizrahi narrative is a significant marker in the inter-narrative struggle as it represents a desire for separate or hybrid identities. And, the deep probing of the narrative constructed by leaders of The Keshet and those who identify with the movement produced a number of clear ways to distinguish it from the old Mizrahi struggle, whose history was portrayed through social protests, in a manner similar to linear vectors marked with wars and elections. The old Mizrahi struggle selected the traditional tactical struggle identified usually with social and political movements that seek to change political, social, and economic reality - from the bottom up. Their primary demand was to change decisions as well as the division of social goods and resources. Hence, this older period of struggle was not aimed at opposing the ideological foundations of the hegemonic narrative nor did it seek to undermine in a radical manner the unique nature of the state of Israel as a revolutionary solution for the problems of the Jews according to the Zionist approach, as a national home for the Jewish people, and recognition of the right to an preferred and meta-definition of Jewish nationalism. In contrast, the top down struggle advanced by the new narrative is part of an ideological movement led by the educated that is assertive and ground in post-colonialist theory. Accordingly, it was critical of the techniques and mechanisms of oppression as well as sought to attack the Zionist ideological foundations and to reveal its racist operations and the regimes that have preserved it so efficiently for many years. The uniqueness of this narrative is the intellectual offensive that continues to be advanced and, in parallel, development of the discourse struggle in Israel concerning the justification for Zionism and the concrete political proposal that Jews reject the taken-for-granted status of it as an ideology. This new narrative recognizes the historic difficulties of subversion as an emancipatory and, principally, moral effort. In addition, the new Mizrahi narrative shares the foundations and narrative of Palestinian victimization. In its radical version, the new Mizrahi narrative seeks to connect to the Palestinian narrative in order to create a new space here. According to this version, this action will take place gradually. The first stage will be characterized by opposition to Western European, Ashkenazic Zionism. The Eurocentric Zionism will surrender in the second stage, to be followed in the last stage by creation of a coalition of Jews and Arabs that will be establish through concrete actualization of the refugee status and victimization that is shared by both Palestinians and Mizrahim (whether as Mizrahim or Jewish-Arab). Not a speculative academic exercise, the goal sought by this narrative is delineate and to achieve a multicultural model in which equality, liberty, and social justice will overcome the nationalism and colonialism of either side; that is it will be neither Zionist nor Jewish. Thus, this approach stresses what is shared (e.g., acceptance of the Arab space and not a rejection of it; the legitimacy of the Arab language and culture). This is part of detachment from and historic judgment of the colonialist Zionist enterprise. This possibility includes moral elements that remove the evil and harm caused by Zionism for many years as well as inner cleansing – primarily among Ashkenazim – of attitudes towards Jews and non-Jews. Though, in this regard, it should be noted that, to date, the new narrative has not made similar claims that Palestinians undergo a similar process. The assumption seems to be that this should be tested, that the coalition proposed is a possibility that will be recognized by the Palestinians, and that they are prepared to undergo a similar, shared moral process that involves negating the state of Israel as a Jewish, Western state, a state of the Jewish people, and not only for those who live within it. These Mizrahi thinkers conducted a significant move through deconstruction and substitution of the Eurocentric narrative with a multi-cultural proposal that is optimistic and even attractively naïve. Today, they acknowledge that they did not take into account Palestinian nationalist violence directed to citizens, the traditionalist alternative, and widespread opposition within the Mizrahi community toward what is perceived to be Mizrahi seclusion. They also did not take into account the harsh criticism rendered by young and educated Mizrahim who claim that they were born into a complex, multi-dimensional, multi-layered identity that includes internalization of the language of the West and rules of the game of this complex identity. And, though they are critical of some of its values, this makes it difficult to mount internal emotional opposition to the West and to the globalization contained within this world. Hence, this more familiar world is preferred over the values of the Mizrahi-Arab alternative, particularly in regard to problems in the domains of democratic citizenship, stance taken toward women, and freedom of speech. Further, educated Mizrachim reject the post-colonialist perspective and are stridently critical of its dichotomization. They claim that such a division is irrelevant in a world in which older ideologies have collapsed and new spheres – such as cyberspace and others – are open to them in which they can present themselves with an Israeli identity that is not categorized as necessarily Mizrahi. (shrink)

Analogy making from examples is a central task in intelligent system behavior. A lot of real world problems involve analogy making and generalization. Research investigates these questions by building computer models of human thinking concepts. These concepts can be divided into high level approaches as used in cognitive science and low level models as used in neural networks. Applications range over the spectrum of recognition, categorization and analogy reasoning. A major part of legal reasoning could be (...) formally interpreted as an analogy making process. Because it is not the same as reasoning in mathematics or the physical sciences, it is necessary to use a method, which incorporates first the ability to specify likelihood and second the opportunity of including known court decisions. We use for modelling the analogy making process in legal reasoning neural networks and fuzzy systems. In the first part of the paper a neural network is described to identify precedents of immaterial damages. The second application presents a fuzzy system for determining the required waiting period after traffic accidents. Both examples demonstrate how to model reasoning in legal applications analogous to recent decisions: first, by learning a system with court decisions, and second, by analyzing, modelling and testing the decision making with a fuzzy system. (shrink)

Legal concepts and notions are deeply affected by religions, ethics, philosophy and the culture of a particular nation. As Friedman Comparing legal cultures, Dartmouth, Aldershot, 1997, p. 34) highlights, understanding legal culture is a crucial factor as it both affects their translation and interpretation and consequently has an impact on the application of law. This increases in importance, for example, in the context of the principle of mutual trust and recognition of judgments assumed by the (...) European Union as the cornerstone of judicial co-operation in the European Union, which would not be possible without the trust in each other’s justice system and the respect for the different legal systems and traditions of the Member States. In that vein, ‘the Third Space’, where legal concepts and notions of multiple origins meet and where their meanings are negotiated, transformed, translated and integrated into various socio-political and cultural contexts has acquired an immense significance. Although there may be natural similarities between legal professions in the European Union, they could differ quite substantially as they are deeply rooted in the history and societal evolution of a country; therefore, they are generally regulated at a national, not a European level. In light of the above, the author intends to perform an in-depth analysis of key terminology in the field of names of legal professions which exist in the Member States of the European Union. The author focuses on the terms which refer to the legal profession of lawyers as they might pose obstacles in translation and interpretation due to different functions and roles these legal professionals play in their legal systems or due to the lack of their equivalents in other legal systems. The terminology is compared to present similarities and differences in their meaning, particularly putting some emphasis on socio-political and cultural contexts. The research methods encompass the analysis of relevant literature and the terminological analysis of the research material, which includes the information on legal professions provided by particular Member States on the European e-Justice portal and relevant national regulations in that respect. Finally, the author draws the conclusion that a thorough analysis of the functions and roles of a particular legal profession in socio-political and cultural contexts is required before the translation and interpretation of the term is provided as it helps to avoid ambiguity and makes legal communication precise. (shrink)

What follows is a discussion of three sets of experimental results that deal with various aspects of universal biological understanding among American and Maya children and adults. The first set of experiments shows that by the age of four-to-five years urban American and Yukatek Maya children employ a concept of innate species potential, or underlying essence, as an inferential framework for understanding the affiliation of an organism to a biological species, and for projecting known and unknown biological properties (...) to organisms in the face of uncertainty. The second set of experiments shows that the youngest Maya children do not have an anthropocentric understanding of the biological world. Children do not initially need to reason about non-human living kinds by analogy to human kinds. The third set of results show that the same taxonomic rank is cognitively preferred for biological induction in two diverse populations: people raised in the Mid-western USA and Itza' Maya of the Lowland Meso-american rainforest. This is the generic species  the level of oak and robin. These findings cannot be explained by domain-general models of similarity because such models cannot account for why both cultures prefer species-like groups in making inferences about the biological world, although Americans have relatively little actual knowledge or experience at this level. The implication from these experiments is that folk biology may well represent an evolutionary design: universal taxonomic structures, centred on essence-based generic species, are arguably routine products of our ‘habits of mind,' which may be in part naturally selected to grasp relevant and recurrent ‘habits of the world.' The science of biology is built upon these domain-specific cognitive universals: folk biology sets initial cognitive constraints on the development of any possible macro-biological theory, including the initial development of evolutionary theory. Nevertheless, the conditions of relevance under which science operates diverge from those pertinent to folk biology. For natural science, the motivating idea is to understand nature as it is ‘in itself,' independently of the human observer. From this standpoint, the species-concept, like taxonomy and teleology, may arguably be allowed to survive in science as a regulative principle that enables the mind to readily establish stable contact with the surrounding environment, rather than as an epistemic concept that guides the search for truth. (shrink)

Past research showed that the ability to focus on one’s internal states positively correlates with the self-regulation of behavior in situations that are accompanied by somatic and/or physiological changes, such as emotions, physical workload, and decision-making. The analysis of moral oriented decision-making can be the first step for better understanding the legal reasoning carried on by the main players in the field, as lawyers are. For this reason, this study investigated the influence of the decision context and (...) interoceptive manipulation on the moral decision-making process in the legal field gathering the responses of two groups of lawyers. A total of 20 lawyers were randomly divided into an experimental group, which was explicitly required to focus the attention on its interoceptive correlates, and a control group, which only received the general instruction to perform the task. Both groups underwent a modified version of the Ultimatum Game, where are presented three different moral conditions and three different offers. Results highlighted a significant increase of Acceptance Rate in those offers that should be considered more equal than fair or unfair ones, associated with a general increase of Reaction Times in the equal offers. Furthermore, the interoceptive manipulation oriented the Lawyers toward a more self-centered decision. This study shows how individual, situational, contextual, and interoceptive factors may influence the moral decision-making of lawyers. Future research in the so-called Neurolaw field is needed to replicate and expand current findings. (shrink)

In the last decades, regional and global integration processes have made the traditional state-centred view of law less and less obvious. Recent discussions revolve around how to conceptually comprehend, critically reflect on and reasonably control these new developments in the global legal arena. The essays in this volume, written by young Central and Eastern European legal theorists and political scientists, contribute to ongoing discussions in our post-national era. The chapters include conceptual analyses, historical and comparative examples, (...) as well as normative discussions in legal theory, ethics, moral philosophy, constitutional theory, EU law and international relations. (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)

In common law jurisdictions, legal professionals cite facts and legal principles from precedent cases to support their arguments before the court for their intended outcome in a current case. This practice stems from the doctrine of stare decisis, where cases that have similar facts should receive similar decisions with respect to the principles. It is essential for legal professionals to identify such facts and principles in precedent cases, though this is a highly time intensive task. In this (...) paper, we present studies that demonstrate that human annotators can achieve reasonable agreement on which sentences in legal judgements contain cited facts and principles. We further demonstrate that it is feasible to automatically annotate sentences containing such legal facts and principles in a supervised machine learning framework based on linguistic features, reporting per category precision and recall figures of between 0.79 and 0.89 for classifying sentences in legal judgements as cited facts, principles or neither using a Bayesian classifier, with an overall κ\documentclass[12pt]{minimal} \usepackage{amsmath} \usepackage{wasysym} \usepackage{amsfonts} \usepackage{amssymb} \usepackage{amsbsy} \usepackage{mathrsfs} \usepackage{upgreek} \setlength{\oddsidemargin}{-69pt} \begin{document}$$\kappa$$\end{document} of 0.72 with the human-annotated gold standard. (shrink)

Metacognitive research is dominated by meta-memory studies; meta-reasoning research is nascent. Accessibility – the number of associations for a stimulus – is a reliable heuristic cue for Feeling of Knowing when answering knowledge questions. We used a similar cue, subjective accessibility, for exposing commonalities and differences between meta-reasoning and meta-memory. In Experiment 1, participants faced solvable Compound Remote Associate problems mixed with unsolvable random word triads. We collected initial Judgement of Solvability, final JOS and confidence. Experiment 2 focused (...) on confidence, controlling for potential interactions among judgements. In Experiment 3, the participants memorised the same triads and rated Ease of Learning and Judgement of Learning. sAccessibility was associated with all judgements. Notably, it reliably predicted memory judgements and confidence in the provided solutions. However, it was unreliable for judging solvability. The findings highlight the importance of studying meta-reasoning for exposing the biasing factors in reasoning processes and for getting a broad perspective on metacognitive processes. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:The Sovereignty of Reason: The Defense of Rationality in the Early English Enlightenment by Frederick C. BeiserJohn W. YoltonFrederick C. Beiser. The Sovereignty of Reason: The Defense of Rationality in the Early English Enlightenment. Princeton: Princeton University Press, 1996. Pp. xi + 332. Cloth, $39.50.Beiser characterizes the methodology of his study as historical and philosophical: historical in placing texts in their own context and in uncovering the intentions (...) of their authors; philosophical in reconstructing and appraising arguments (ix). Both methods are necessary for good historical work. The second is often practiced without the first, to the detriment of philosophy and its history. “A philosopher who reconstructs arguments without the aid of history indulges in mere guesswork and anachronism, measuring the standards of philosophical relevance and importance by the concerns of his own age” (x). Equally, understanding the arguments and ideas of, e.g., seventeenth-century writers, “also involves testing their truth: seeing how they cohere with one another, what their consequences are, whether they follow from the evidence adduced for them, and if they reply to the objections made against them” (x). This splendid study of the role of reason in seventeenth-century religion, science, and philosophy is a fine example of careful textual-historical scholarship with rigorous philosophical analysis.The goal of his study is to tell “the story of how rationalism, in the very specific sense of the sovereignty of reason, arose in seventeenth-century England” (5). Starting with an introduction which discusses such topics as “The Paradox of the English Enlightenment,” “Rationalism in the English Church,” “The Enlightenment and the New Sciences,” Beiser proceeds to detailed presentations and discussions of “The Protestant Challenge” (Chap. 1); Richard Hookers’s defense of reason (Chap. 2); the views of the Great Tew Circle, e.g., Falkland, Chillingworth, Hammond, Hales (Chap. 3); the Cambridge Platonists (Chap. 4); the nature of Enthusiasm (Chap. 5); John Toland and Deism (Chap. 6); and ethical rationalism (Chap. 7).Many of the topics covered have been the subjects of other books and articles. What marks Beiser’s account is the freshness of his approach, the many new insights and suggestions about the tensions between the holders of traditional doctrines and newer challenges. Beiser’s writing is clear, and the issues are carefully presented and analyzed. One of the central themes is the mistake of equating “rationalism with the critique or rejection of religion” (15), of identifying enlightenment with secularization (14). The appeals to reason often emerge from within orthodox religion, whose defenders were trying to cope with their own internal tensions. “Once we consider the Cambridge Platonists’ early reaction to predestination, it becomes clear that it was not Hobbes but Calvin who first posed the danger of atheism for them. For it was Calvin’s theology, and not Hobbes’s materialism, that inspired the fear of God that [End Page 138] they regarded as the source of atheism. In the eyes of the Cambridge Platonists, Hobbes’s materialism was only a false remedy for that fear...” (147). A similar point is made later: “the foundations of a rational theology” in Whichcote “did not arise from any need to combat a creeping Hobbesianism. Rather, it grew up from the inner struggles and torments of the Protestant soul” (165).Equally significant is Beiser’s analysis of enthusiasm, the appeals to divine inspiration rather than to reason or evidence: “We should be aware of accepting the contemporary caricature of the enthusiasts, which portrayed them as zealous and ignorant anti–intellectuals with no cogent or coherent philosophical position of their own” (187). His analysis of the enthusiasts stresses the epistemological nature of their position, rather than the usual theological, ethical, or political dimensions (193). He insists that “enthusiasm is essentially a philosophical concept. Historically, it arose as a response to the problem of the sources and criteria of religious knowledge” (187). The search for criteria is a pervasive feature of Beiser’s study: Luther’s and Calvin’s efforts to draw the boundary between faith and reason (24); Richard Hooker’s failure to “provide an epistemological foundation for his theory of natural law” (67); the need for a criterion to distinguish genuine from false revelation... (shrink)

In the field of socio-legal studies or law and society scholarship, it is rare to find empirically rich and conceptually sophisticated understandings of actual legal practice. This book, in contrast, connects the conceptual and the empirical, the abstract and the concrete, and in doing so shows the law to be an irreducibly social, material and temporal practice. Drawing on cutting-edge work in the social study of knowledge, it grapples with conceptual and methodological questions central to the field: (...) how and where judgment empirically takes place; how and where facts are made; and how researchers might study these local and concrete ways of judging and knowing. Drawing on an ethnographic study of how narratives and documents, particularly case files, operate within legal practices, this book's unique and innovative approach consists of rearticulating the traditional boundaries separating judgment from knowledge, urging us to rethink the way truths are made within law. (shrink)

This research examined choice behaviour and probability judgement in a counterintuitive reasoning problem called the Monty Hall problem (MHP). In Experiments 1 and 2 we examined whether learning from a simulated card game similar to the MHP affected how people solved the MHP. Results indicated that the experience with the card game affected participants' choice behaviour, in that participants selected to switch in the MHP. However, it did not affect their understanding of the objective probabilities. This suggests that (...) there is dissociation between implicit knowledge gained from the task and the explicit understanding as to why switching was the best strategy. In Experiment 3, the number of prizes and doors were manipulated to examine how participants construed the problem space of the MHP. Results revealed that participants partition the probability judgement to reflect the number of prizes over the number of unopened doors. (shrink)

While the presence or absence of consciousness plays the central role in the moral/ethical decisions when dealing with patients with disorders of consciousness (DOC), recently it is criticized as not adequate due to number of reasons, among which are the lack of the uniform definition of consciousness and consequently uncertainty of diagnostic criteria for it, as well as irrelevance of some forms of consciousness for determining a patient’s interests and wishes. In her article, Dr. Specker Sullivan reexamined the meaning (...) of consciousness in the DOC taxonomy and proposed to go away from the routinely used clinical definition of consciousness as “wakeful awareness”, and adopt the meaning that is common in the Eastern tradition which is a form of “pure experience” (Specker Sullivan 2018). She further argued that understanding consciousness as a “pure experience” is ethically relevant for DOC patients. This suggestion is original, novel and important since it preserves the importance of the notion of consciousness for the clinical practice while simultaneously offering an additional ethical tool for the moral decisions in medicine. At the same time, without placing such Eastern notion in the Western tradition it is difficult to see how pure experience could be usefully operationalized to make sense in the clinical practice with DOC patients. It is so because pure experience is a subjective phenomenon which is completely inaccessible in noncommunicative DOC patients and also it does not express behaviorally (Monti et al 2010), therefore some objective-like operationalization is needed. This is why the fusion of Eastern and Western traditions is required to gain the full potential of Dr. Specker Sullivan’s suggestion. We propose that such fusion could be achieved on the basis of the Operational Architectonics (OA) theory of brain-mind functioning (Fingelkurts et al. 2010; 2013a) which suits ideally the purpose due its compatibility with both Western and Eastern traditions of consciousness. (shrink)

This paper develops a virtue-account of legal reasoning which significantly differs from standard, principle-based, theories. A virtue approach to legal reasoning highlights the relevance of the particulars to sound legal decision-making, brings to light the perceptual and affective dimensions of legal judgment, and vindicates the relevance of description and specification to good legal reasoning. After examining the central features of the theory, the paper proposes a taxonomy of the main character (...) traits that legal decision-makers need to possess to successfully engage in legal reasoning. The paper concludes by discussing an array of strategies in legal education, institutional design, and legal culture that can be put in place to work virtue in legal decision-making. (shrink)

Kant's Critique of Pure Reason, his main work of theoretical philosophy, frequently uses metaphors from law. In this first book-length study in English of Kant's legal metaphors and their role in the first Critique, Sofie Møller shows that they are central to Kant's account of reason. Through an analysis of the legal metaphors in their entirety, she demonstrates that Kant conceives of reason as having a structure mirroring that of a legal system in a natural right (...) framework. Her study shows that Kant's aim is to make cognisers become similar to authorized judges within such a system, by proving the legitimacy of the laws and the conditions under which valid judgments can be pronounced. These elements consolidate her conclusion that reason's systematicity is legal systematicity. (shrink)

Wigmore thought that there was a science of proof underlying legal reasoning that could be displayed in any given case as a graphic sequence of argumentation from the evidence in the case leading to the ultimate probandum. Argumentation technology has now vindicated this approach by providing useful qualitative methods that can be applied to identifying, analyzing, and evaluating the pro and con arguments put forward by both sides in a trial. In this chapter, it is shown how to (...) apply argumentation schemes, such as argument from witness testimony, using argument diagrams applied to typical sequences of evidence-based legal reasoning in which there is a successive refinement of arguments displayed as the evidence comes into a case. It is shown how argument from applying rules to cases, teleological, argument from expert witness testimony, and abductive reasoning are centrally important for this purpose. (shrink)

Disciplinary issues -- Field studies -- Appendix: Theory of law : legal ethnography, or, the theoretical fruits of the inquiries into folkways. /// Reedition of papers in English spanning from 1995 to 2008 /// DISCIPLINARY ISSUES -- LAW AS CULTURE? [2002] 9–14 // TRENDS IN COMPARATIVE LEGAL STUDIES [2002] 15–17 // COMPARATIVE LEGAL CULTURES: ATTEMPTS AT CONCEPTUALISATION [1997] 19–28: 1. Legal Culture in a Cultural-anthropological Approach 19 / 2. Legal Culture in a Sociological Approach 21 (...) / 3. Timely Issues of Central and Eastern Europe 24 // COMPARATIVE LEGAL CULTURES? [2001] 29–48: 1. Legal Comparativism Challenged 29 / 2. Comparative Legal Cultures versus Comparative Law 34 / 3. Contrasting Fields 40 [a) The Historical Understanding of Socialist Law 42 / b) Convergence of Civil Law and Common Law 44] 4. Concluding Remarks 46 // THEATRUM LEGALE MUNDI: ON LEGAL SYSTEMS CLASSIFIED [2005] 49–75: 1. Preliminaries 49 / 2. Proposals 50 / 3. Impossible Taxonomy, or the Moment of Practicality in Legal Mapping 69 / 4. Diversity as a Fundamental Quality of Human Existence 74 // LEGAL TRADITIONS? IN SEARCH FOR FAMILIES AND CULTURES IN LAW [2004] 77–97: 1. Comparative Law and the Comparative Study of Legal Traditions 78 / 2. ‘System’, ‘Family’, ‘Culture’, and ‘Tradition’ in the Classification of Law 80 / 3. Different Traditions, Differing Ways of Thinking 85 / 4. Different Expectations, Differings Institutionalisations in Law 88 / 5. Different “Rationalities”, Differing “Logics” 92 / 6. Mentality in Foundation of the Law 94 / 7. Defining a Subject for Theoretical Research in Law 96 // SOMETHING NEW, SOMETHING OLD IN THE EUROPEAN IDENTITY OF LAW? [1995] 99–102 --- FIELD STUDIES -- MEETING POINTS BETWEEN THE TRADITIONS OF ENGLISH–AMERICAN COMMON LAW AND CONTINENTAL-FRENCH CIVIL LAW: DEVELOPMENTS AND EXPERIENCE OF POSTMODERNITY IN CANADA [2002] 105–130: I. Canadian Law in General 105 / II. Canadian Legal Developments in Particular [1. The Transformation of the Role of Precedents 112 / 2. The Transformation of Law-application into a Collective, Multicultural and Multifactorial Search for a Solution 116 / 3. Practical Trends of Dissolving the Law’s Positivity 120 / 4. New Prerogatives Acquired by Courts 125 {a) Unfolding the Statutory Provisons in Principles 126 / b) Constitutionalisation of Issues 127 / c) The Supreme Court as the Nation’s Supreme Moral Authority 129}] // MAN ELEVATING HIMSELF? DILEMMAS OF RATIONALITY IN OUR AGE [2000] 131–163: I. Reason and its Adventures 1. Progress and Advance Questioned 131 / 2. The Human Search for Safety Objectified 133 / 3. Knowledge Separated from Wisdom 135 / 4. Pure Intellectuality thereby Born 137 / II. The Will-Element Formalised in Law 5. Mere Voluntas in the Foundation of Legal Positivism 141 / 6. Formalism with Operations Fragmented 145 / III. The State of America Exemplified 7. “Slouching into Gomorrah” 147 / IV. Consequences 8. Utopianism-cum-Voluntarism 154 / 9. With Logic in Posterior Control of Human Formulations Only 159 / V. Perspectives 10. And a Final Resolution Dreamed about 161 // RULE OF LAW? MANIA OF LAW? ON THE BOUNDARY BETWEEN RATIONALITY AND ANARCHY IN AMERICA [2002] 165–180: {Transformation of American Law and Legal Mentality 165 / With Repercussions on the Underlying Ethos 168 / Legislation through Processualisation 170 / With Hyperrationalism Added 172 / Example: Finding Lost Property 172 / Practicalness Veiled by Verbal Magic 173 / Ending in Jurispathy 175 / Transubstantiating the Self-interest of the Legal Profession 178 / Post-modernity, Substituting for Primitiveness 178} // TRANSFERS OF LAW: A CONCEPTUAL ANALYSIS [2003] 181–207: 1. Terms 182 / 2. Technicality 190 / 3. Contrasts in Transfers of Law 200 {Contrasts 200 / Criticisms 202 / Alternatives205} 4. Conclusions 206 // THE DANGERS FOR THE SELF OF BEING SELF-CENTRED: ON STANDARDS AND VALUES [2002] 209–212 --- APPENDIX -- THEORY OF LAW – LEGAL ETHNOGRAPHY, OR THE THEORETICAL FRUITS OF THE INQUIRIES INTO FOLKWAYS [2008] 213–234 1. Encounters 213 / 2. Disciplines 218 / 3. The Lawyerly Interest 223 / 4. Law and/or Laws 226 / 5. Conclusion 233 --- Index of Subjects 235 / Index of Normative Materials 242 / Index 244 . (shrink)

For close to forty years now T.M. Scanlon has been one of the most important contributors to moral and political philosophy in the Anglo-American world. Through both his writing and his teaching, he has played a central role in shaping the questions with which research in moral and political philosophy now grapples. Reasons and Recognition brings together fourteen new papers on an array of topics from the many areas to which Scanlon has made path-breaking contributions, each of which develops (...) a distinctive and independent position while critically engaging with central themes from Scanlon's own work in the area. Contributors include well-known senior figures in moral and political philosophy as well as important younger scholars whose work is just beginning to gain wider recognition. Taken together, these papers make evident the scope and lasting interest of Scanlon's contributions to moral and political philosophy while contributing to a deeper understanding of the issues addressed in his work. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Beginning in the 20s of the last century, historical research into Eiximenis's life and writings has thrown into relief his contribution to the language and political ideas of the kingdoms and towns of the Catalan-Aragonese Crown. Of fundamental importance has been the work of medievalists from North America, and in particular that of Canadian scholars during the last decades of the twentieth century.More recently, a number of studies have (...) underlined the decisive contribution of Eiximenis – a representative of a European textual tradition among friars of the Minor Observance that extended from Oxford to Florence – to the establishment of a system of ethical values for the economic sphere and for trading practices that continued to be developed by members of the Franciscan Order throughout the high middle ages and early modern period.As a follow-up to these studies, I believe that a program of textual analysis and systematic investigation of Eximenis's work could provide further information about the range and significance of his political thinking, based as it was on applying, in typically Franciscan fashion, experimental observation to gain an understanding of the nature both of the societas and of the market, the latter being thought of as a defining expression of civic institutions in Western Europe. This same experimental approach can be found in Franciscan thinking from the catalan-aragonese realm not only in the work of Arnau de Vilanova and Ramon Llull, but also in that of Pere Tomas and Anselm Turmeda, two figures fundamental to the preparation and political engagement of the Friar of Girona.1. The concept of contractIn Eiximenian texts, the communitarian dimension is defined as one that is of necessity based on contract. It is expounded in the long opening section of the Dotzè del Crestià, where Eiximenis outlines the political value of the civitas, as well as setting out the elements that constitute civic life.Borrowing from Aristotle's discussion in the First Book of the Politics , the Franciscan friar strongly affirms that one of the principal reasons behind the civitas is the "necessitat de contractes," the need for contracts. Going far beyond the highly qualified analysis of money and coinage set out by the Greek philosopher, Eiximenis here maintains that the aims of the community is the profit that the citizenry realises by means of different forms of exchange, through buying and selling, through contracts, and through trading. Moreover, that the binding nature of trading-contracts is a matter of concern not of the city in the narrow sense, but of each and every kind of human social organization.Even before contract-law, or, better said, conventional or foral procedure, Eiximenis views the idea of the contract as an essential part of the ethical and organizational principles of living as a community, the essence of the civitas. And it is of great significance that when he is discussing the value and function of money, Eiximenis chooses to call the sorts of exchange that to-day we term economic or financial les civils conmutacions, or exchanges between citizens.These lexical hints allow us to capture the strength of meaning and value, the ethical perspective by which the Gerundense defines the inextricable union of the market and civic society. But it is not only an analytical perspective, significant as that is, that unites market and civic ethics; we are presented with a value judgment of contract and economic exchange as elements that determine the very idea of civilitas.The "bona civilitas," an expression that can be roughly translated as "good civic culture," is in fact founded on a concept of economic ethics that has as its distinguishing feature the logic of profitable exchange, of the distribution of that profit, of contractualization, and of the circulation of goods and money. It is characterised by redefining the anti-value of avaritia as a real.. (shrink)

The book reconstructs the history of Western ethics. The approach chosen focuses the endless dialectic of moral codes, or different kinds of ethos, moral doctrines that are preached in order to bring about a reform of existing ethos, and ethical theories that have taken shape in the context of controversies about the ethos and moral doctrines as means of justifying or reforming moral doctrines. Such dialectic is what is meant here by the phrase ‘moral traditions’, taken as a name for (...) threads of moral discourse, made in turn of other interwoven threads, including transmission of shared codes, appeals to reform of prevailing custom, rational argument about the justification of some precept on the basis of some shared general teaching or principle, and rational argument about the ultimate basis for principles and justification of authoritative teaching. That is, the approach adopted to the reading of ethical texts depends on a firm belief in the fact that philosophers hardly created any ethical doctrine out of nothing. The main point this book tries to highlight is how different philosophical theories emerged and followed each other as a result of attempts at accounting for what was going on in the world of moral traditions. Changes were propelled by controversies between different schools, and highly abstract arguments were the unintended effects of moves made by controversialists forced to transform (and occasionally to turn upside down) their own doctrines in order to face the challenge posed by other arguments. This is the reason why the book examines not only texts that already enjoy pride of place in the history of philosophy (Aristotle, Kant, Hegel), but also other texts usually treated in the histories of religions (the Bible, the Talmud, the Quran), and others considered to be much less philosophical (Plutarchus, Pufendorf). -/- 1. Plato and a response to ethical scepticism. Two different traditions of morality in VI-V century Greece are described. The birth of philosophical questioning of traditional morality and temporal and spatial variation of custom is described within the context of the v century crisis, the demise of traditional aristocratic and tyrannical rule and the birth of democracy. Two conflicting answers to the challenge are reconstructed, namely conventionalist or immoralist theories formulated by the Sophists and the eudemonist and intellectualist Socratic theory. Plato’s own reformulation of Socrates answer to the Sophists is reconstructed. His psychological views, his classification of the four cardinal virtues and his political theory are described as parts of a unitary system, culminating in an extremely realist moral ontology identifying the idea of the good with the essence of the (moral and extra-moral) world itself. -/- 2. Aristotle and the invention of practical philosophy. Aristotle’s invention of practical philosophy as a field separated from first philosophy is shown to be an implication of his break with Plato moral ultra-realism. Aristotle’s agenda in his moral works is arguably dependent on a polemical intention, namely dismantling Socratic intellectualism. The semi-inductive or virtuously circular method of practical philosophy is illustrated, starting with the received opinions of the better and wiser individuals and trying dialectically to sift what is left of mistake and inconsistence in such opinions, finally trying to correct mistakes and make the overall practical science more consistent. The chapter illustrates then the relationship of individual ethics, or ‘monastics’, with the art and the science of the pater familias, or ‘economics’, and the science of the ruler and citizen, or politics. The nature of virtues, or better, excellences of character, is discussed, highlighting the basic role of hexis, or ‘disposition’. Prudence, or better practical wisdom, is the focus of the chapter. Its relationship with bouleusis or deliberation is examined, and its autonomous status vis-à-vis theoretical knowledge is stressed. -/- 3. Diogenes and philosophy as a way of life. The chapter provides an overview of Hellenistic ethics, which almost amounts to Hellenistic schools of philosophy, in so far as ‘philosophy’ became in these centuries primarily the name for a way of life. The typical character of the Cynical movement is highlighted, that of a school of life, not a school aimed at providing any kind of intellectual training was to be provided. -/- 4. Epicurus and ethics as self-care. The peculiar character of the Epicurean school is described, a combination of a science of well-being aiming, more than at pleasure as in the popular view, at reduction of useless suffering, of unnecessary needs, and at a balanced selection of pleasures of the best and most durable kind. -/- 5. Epictetus and ethics as therapy of the passions. The various phases of Stoicism are described, and the shifting place given to ethics in the Stoic system of idea, culminating in the paradoxical view of ethics, its impossibility in principle notwithstanding, as the only truly significant and necessary part of philosophy. Cicero is treated, showing how his own synthesis of various Hellenistic trends is as a truly philosophical enterprise, deserving serious consideration after one or two centuries when he was confined to the role of literate. Epictetus is chosen as the best example of what the Stoic tradition could yield, an art of living based on sophisticated introspection, in turn aimed at making a kind of cognitive therapy possible, dismantling obnoxious passions at their root by systematically correcting false representations. -/- 6. Philo and the reconciliation of Torah and Platonism. A reconstruction of basic ideas from a few books of the Hebrew Bible is provided, starting with the Prophetic tradition and the focus on God’s mercy as the source of motivation and standard for human behaviour. Then a comparative analysis is undertaken of a parallel tradition, namely the three codifications of the Torā (Law or, better, Instruction), highlighting how a core of moral ideas may be recognized as a basis and preamble of codification of civil law, cultural practice, and regulation of ritual purity. The importance of Leviticus is stressed as the turning point when emphasis mercy, typical of the Prophetic tradition, is combined with the legal tradition, yielding the change in sensibility of the Second Temple time. Philo of Alexandria is described as one of the three leading figures – together with Rabbi Hillel and Rabbi Yeshua – at the apex the emergence of the mentioned new sensibility, gradually including mercy as an essential part of justice and establishing the starting point of both the Rabbinic and the Christian tradition. This consists precisely in the precept of one’s neighbour’s love or of the golden rule, two eventually identical precepts whose meaning is arguably more sober and sensible than the long-lasting Christian tradition deriving from John and Augustine has made us believe and no novelty vis-à-vis so-called Ancient-Testament teachings. -/- 7. Augustine and Christianity as Neo-Platonism. The first section examines the moral doctrines of so-called 'ethical Treaties' from the Talmud, a group of treaties, among which the best known is Pirqé Avot, that were left out of the six "orders" of the canon as they did not fit in any of the six groups of issues ritual or legal on which the division was based. According to Maimonides, their peculiar theme is provided by the Deòt, 'opinions', i.e., mental dispositions, that is, the translation of the Greek term hexeis and Arab akhlak (in turn providing in this language the name for ethics as such). The three topics I reconstruct are: i) the notion of Torah: The Torah is understood as the world order itself, or as the ‘Wisdom’ that existed even before creation and was ‘the tool by which the world was built’; however, the Torah is an earthly and human entity, as it was "received" by humans, and from that very moment belongs to them; ii) the relationship between love of God and love of neighbour; the treaties require us to study and practice the Torah ‘for its own sake’, that is, require us to act out of love, not out of fear or hope of reward; iii) the idea of sanctification of daily life: having disappeared with the destruction of the Temple the possibility of any conflict between liturgical service and everyday life, the latter is assumed to be in itself divine service: to give food to the poor has the same value as sacrifices in the Temple, and as an implication, the insistence become recurrent on the goodness of created things in themselves along with a polemic against ascetic currents. The conclusions drawn are: i) the moral teachings of the Talmud and those of Yeshua are, rather than similar, virtually identical; one may safely say that the precept of love and the golden rule are central ones for all Talmudic rabbis, that mercy plays an indispensable role alongside with justice, and the latter is not a different thing from one’s neighbour’s love; ii) a peculiarity of Talmud rabbis facing Yeshua is the idea of study as worship, and knowledge as a source of justice; but this is an idea of Judaism after the Temple's destruction that cannot be attributed to the Pharisees of Yeshua’s time; iii) the relation of study and practice in the Talmud parallels that between faith and deeds in Paul's epistles, that is, respectively faith or learning are a necessary and sufficient condition to be recognized as righteous , but deeds are the inevitable effect of either faith or learning. The sayings ascribed to Yeshua are examined first, yielding the conclusion that a close equivalent may be found for every saying in Talmudic literature and yet the whole is ascribed to one rabbi, with rather consistent stress on God’s mercy and unconditional forgiving as the mark of true imitation of God. Thus, Yeshua’s teaching is pure Judaism. The third section describes briefly the galaxy of Gnostic currents and Manichaeism, trying to sketch the profile of moral teachings resulting from an encounter of Asian spiritual traditions, Hellenistic lore and sparks of teachings from apocalyptic Jewish currents. The last section summarizes the turbulent history of several encounters between Christian currents and Hellenistic philosophical schools. The first one was with late Cynicism. Recent, rather controversial, literature discovered the jargon and a few topics from the Stoic-Cynical popular philosophy in a few books from the New Testament itself. This, far from proving that Rabbi Yeshua had been influenced by cynic preachers, is a proof of the necessity felt by Christian preachers to translate the original ‘Christian’ teaching into a Greek lexicon deeply impregnated with cynic terminology. The second was with Platonism, yielding the mild and temperate moral teaching of Clemens of Alexandria, teaching the sanctity of nature and the human body, the joy of moderate fruition of ‘natural’ kinds of pleasures, and the beauty of the marital life – in short, the opposite of the standard picture of Medieval Christianity. Ambrose of Milan brings about a different kind of synthesis, namely with Middle Platonism, where Stoic themes prevail. The most shocking case is Augustine, where an early Manichean education is overcome in a former phase by a synthesis of Plotinian Neo-Platonism and Christian preaching, yielding a sustained polemic with the Manicheans and rather optimistic views on life and Creation, the body and sexuality, and Hebrew-Judaic tradition not far from Clemens of Alexandria. In a later phase, occasioned by controversy on the opposite front, with such Christian currents as the Pelagians and Donatists, Augustine comes back to heavily anti-Judaic and world-denying ascetic attitudes where is earlier Manichean upbringing seems to emerge again. The tragedy of medieval Christianity will be the later Augustine’s overwhelming influence. A final section is dedicated to the monastic tradition where a curious mixture of world-denying asceticism with an astonishingly penetrating ‘science’ of introspection emerges. -/- 8. Al Farabi and the reconciliation of Islam and Platonism. The Qurān and the qadit, that is, collections of sayings ascribed to the prophet Muhammad contain a wealth of precepts and catalogues of virtues mirroring moral contents from the Jewish and the Christian traditions, among them the basic notion of imitation of the Deity, where mercy is assumed to be its basic trait. An important tradition within Islam, namely Sufism, stressed to the utmost degree the role of mercy, turning Islam into a mystic doctrine centred on retreat from the world, abandonment to God’s will, and a peaceful and fraternal attitude to our fellow-beings. A secular literary tradition originating in the Sassanid Empire, the literature of advice to the Prince had for a time a widespread influence in the newly constituted Arabic-Islamic commonwealth. In a later phase, the legacy of Hellenic philosophy made its way into the intellectual elite of the Islamic world. The first important legacy was Platonic, and the Republic became the main text for Islamic Platonism. Al-Farabi wrote an enjoyable remake of the Platonic Republic, arguing that the citizen’s virtues were the basis on which the political building needs to rest. The secular lawgiver is enlightened by the light of reason in his everyday practice of governance, but room is made for the Prophet as the voice of revealed truth that confirms and completes the rational truth that philosophy may afford. In a second phase also Aristotelian and Stoic influence were assimilated. Miskawayh’s treatise was the masterwork at the time Arabic philosophy reached its Zenith. It is a treatment of the soul’s diseases and their remedies, combining the Aristotelian doctrine of the golden mean with the Stoic doctrine of the passions and elements of Galenic medicine. Towards the eleventh-twelve centuries a war raged among theologians and philosophers, finally won by the former with disappearance of philosophy as such. The newly established mainstream, yet, was no kind of intolerant fanaticism. It drew from the work of mystic theologian Al-Ghazālī, the best heir of Sufism, teaching a tolerant and peaceful attitude to our fellow-beings and a passive attitude to destiny as an expression of the Divine will. -/- 9. Moshe ben Maimon and the reconciliation of Torah and Aristotelian ethics. The encounter between the Talmudic tradition and Hellenic philosophy had taken place a first time in Alexandria at the time of Philo but the two traditions had parted way again. In fact, the kind of Platonic Judaism founded by Philo survived only within Christianity, in the fourth Gospel and then in writings by Clemens of Alexandria. The Talmudic literature had absorbed just less striking traits from the Hellenic Philosophy, namely an idea of ethics as care of the self and a role for the education of character as propaedeutic to theoretical knowledge. In the Arabic-Islamic world, a second round started when Jewish authors writing in Arabic undertook the task to prove the full compatibility of the tradition deriving from Torah and Platonic philosophy. The culmination of this attempt is provided by Moshe ben Maimon who tried to use Aristotelian ethics as a language into which the teaching from the Pirké Avot could be translated. -/- 10. Thomas Aquinas and the reconciliation of Christian morality and Aristotelian ethics. In the first section the fresh start is described of philosophical ethics in Latin Europe at the turn of the Millennium. In a first phase, Anselm and Peter Abelard built on a Platonic and Augustinian legacy. In this phase. remarkable innovations are introduced, including Abelard’s claim of the obliging character of erring consciousness. In a second phase, the rediscovery of Nicomachean Ethics thanks to Latin translation of Arabic versions gives birth to a new wave of ethical studies, recovering the very idea of Aristotelian practical philosophy, with the potential implication of full legitimization of natural morality, i.e. ethics without Revelation. Aquinas’s ethics is a theological ethics out of which it would be vain to try to extract a self-contained philosophical ethics. His treatment of topics in philosophical ethics, yet, does not boil down to repetition of Aristotelian arguments but is rather a creative reshaping of such arguments. For example, he introduces also in the practical philosophy a first principle parallel to the principle of non-contradiction; and he also carries out a synthesis of Aristotelianism, Stoicism, and neo-Platonism. Even though it is essentially moral theology, Aquinas’s doctrine - unlike Augustine – grants full citizenship to "natural" morality, firstly by rejecting the claim that the corruption of human nature due to the original sin is so radical as to leave "pure nature" incapable of moral goodness. The doctrine is presented in a more sophisticated formulation in a few of the Quaestiones, such as De Malo and De Veritate, in the Summa contra Gentes and in the commentaries to Aristotle than in the famous Summa Theologica, but the latter work includes the only or the largest exposition of some decisive part of the theory. Thus, the Summa Theologica should be read for what it is more than criticized for not being what it was not meant to be. It was not meant to be the brilliant synthesis of all that Reason he had been able to produce with what Revelation had added about which the Neo-Thomists used to dream, but rather a manual for the training of preachers and confessors, where theoretical claims are not too demanding and a few serious tensions are left. Besides a jump between the Prima Secundae and the Secunda Secundae, being the former an essay in virtue theory and the latter a handbook for confessors, the most serious tension is perhaps the one between the ethics of right reason presented in most of Ia-IIae and the eudemonistic ethics developed in quaestiones 1-5 of the same part; the alternative ethical theory which also may be found in Augustine, the Stoic view of a cosmic reason eventually coincident with the moral law, was believed by Anselm (followed by John Duns Scotus and William of Ockham) to be incompatible with eudemonism. It is questionable whether Thomas could reduce the tension proving that it is just an apparent tension, in so far as the right reason and bliss derived from knowledge of God tend to coincide, but this is just a conjecture. Thomas’s ethics is a virtue ethic, not a law-based one, and moral judgment focuses on the virtues, particularly charity, not on the commandments and even less on absolute prohibitions; Thomas, however, would not have considered a drastic alternative between law and the virtues such as the one which has been advanced in late twentieth-century philosophy to be justified. Nonetheless, when it discusses ‘special’ virtues, it ceases to be an ethics of virtue and becomes a disappointing and often contradictory discussion of legal and illegal acts. Such a discussion takes most of the time ‘reasonable’ middle positions on controversial issues but not the alternative approach that Aristotelianism would have made possible; even when some occasional Aristotelian claim shows up, such as money’s barrenness as a reason against usury, this seems to be made by an author who apparently ignores the Aristotelian Thomas of the Prima Secundae. It is an ethic of human autonomy which recognizes the binding character of the individual conscience and, potentially, even a duty to disobey unjust laws. It is true that what Thomas writes in his discussion of death penalty and persecution of heretics is simply disgusting, and yet we should blame Thomas the man, not Thomist ethical theory. Finally, Thomas’s ethics is not ethical ‘absolutism’, as both traditionalist Catholic theologians and secularist enemies of dogmatic morality tend to believe. It is instead an ethic of prudential judgment. Exceptions to this approach – or better results of logical fallacies – are such claims as the absolute character of negative precepts and of the existence of "intrinsically evil acts", claims that simply cease to make sense in the light of Thomas’s own distinction between human act and natural act, carrying consequences Thomas did not live long enough to draw or was not consistent enough to dare to draw. -/- 11. Francisco de Vitoria and casuistry. The first topic illustrated is the discussion about the notion of pura natura, namely the human condition after the original sin and before divine revelation. The core notion was already there in Aquinas but was later developed by Caietanus (Thomas de Vio) with a number of interesting implications: firstly a view of human nature as such much more positive than Augustine’s and his followers’ view, including both Calvinists and Jansenists; secondly, the implication that the philosopher’s morality, as opposed to the Christian’s morality, is a quite respectable kind of morality; thirdly, that theocracy and prosecution of the unfaithful lacked justification, with more far-fetching consequences than Aquinas himself had dared to draw. The second topic is casuistry, a new name for a comparatively older way of thinking, which was already there in late Stoicism and Cicero as well as in the Talmudic literature. This is an approach aimed at yielding probable enough solutions for doubtful cases even in absence of completely safe staring points. The genre developed from medieval reference books for confessors and became by the sixteenth-century a sophisticated tool-box for dealing with various fields of applied ethics. Francisco Vitoria, the main authority of Baroque Scholasticism, was a controversial figure, among the proponents of the new discipline of casuistry and a consistent proponent of more separation between the religious and the civil authority, stricter limits to the legitimacy of war, innate rights of non-Christian nations in the New World based on the notion of pura natura, providing a standard of ‘natural’ goodness, previous to revelation, on which the Indian nations were judged to live in a naturally good condition, provided with the institutions of family, justice, and religion had accordingly a right to full respect by Christian sovereigns. Bartolomé de Las Casas, arguing along similar lines, was the leader of a historical battle in defence of the rights of the Indios. -/- 12. Michel de Montaigne and the art of living. A short description of one of the Renaissance Phyrronism, one of the classical philosophies revived in the fifteenth and sixteenth century. Montaigne combines the sceptical epistemology with an understanding of ethics – indeed of philosophy as a whole – in terms of an art of living inspired by two basic ideas, sagesse, that is, practical wisdom as the only kind of rationality available after theology, science, and tradition have declared bankrupt, and an aesthetic ideal of self-transformation through the art of writing and introspection. -/- 13. Pierre Nicole and neo-Augustinianism. The chapter illustrates first the vicissitudes of Augustinianism newly born after the late medieval triumph of Thomist Aristotelianism in the alternative Protestant and Catholic versions processed by the Calvinists and the Jansenists. Then it illustrates the doctrines of Pierre Nicole, Blaise Pascal’s best disciple, on the impossibility of introspection, on the ubiquity of self-deception, on the incurably evil character of the passion of love, and on the two moralities, the one of the man of the world, the morality of honesty which is indispensable for granting peace and order but devoid of any true value for eternal salvation, since the same external behaviour may be prompted by opposite motivations, and the morality of charity, the only true one but also useless to society. The third topic is Pierre Malebranche’s view of self-deception as a ubiquitous phenomenon accounting for human action and responsibility and his reformulated theory of self-love, no less ubiquitous than for Nicole and yet not as incurably evil, given the distinction between morally indifferent and even necessary amour de soi and vicious amour proper, a distinction on which the whole of Rousseau’s moral and political theory rests. -/- 14. Samuel von Pufendorf and the new science of morality. The chapter is dedicated to the discovery of the idea of a ‘new moral science’. Hugo Grotius is discussed first highlighting the real character of his project, much closer to the Thomist idea of a natural law accessible to non-corrupted human reason when human beings are living in a state of pura natura. Then Hobbes’s combination of scepticism, voluntarism, and conventionalism is described and both the continuity with Grotius’s new science, in the search for non-revealed rational morality, and the break with him, in the adoption of voluntarism and refusal of an intellectualist view of natural law, are illustrated. Pufendorf’s work is illustrated as a synthesis of the two previous attempts and the – up to Schneewind underestimated – paradigmatic example of the new science of morality. -/- 15. Richard Cumberland and consequentialist voluntarism. The chapter gives an overview of eighteenth-century Anglican ethics, noticing how the Cambridge tradition gave special weight to natural theology as opposed to positive or revealed theology – and how two Cambridge fellows, John Gay and Thomas Brown, elaborated on Cumberland’s (and Malebranche’s, as well as Leibniz’s) strategy for finding a third way between intellectualist view and voluntarist view of the laws of nature. The result of their elaboration was a kind of a rational-choice account of the origins of natural laws, where a law-giver God chooses among a number possible sets of laws on a maximizing criterion, and God’s maximandum is happiness for his creatures. The chapter notices also how such a solution aimed at solving at once the problem of evil and that of the foundation of moral obligation by proving how God’s choice was justified as far as it was the one minimising the amount of suffering in the world. 16. Richard Price and intuitionism. The chapter describes first the doctrines of the Cambridge Platonists, an example of hyper-rationalist reaction to Calvinism. Secondly it describes the sophisticated and universally ignored – from Sidgwick to Anscombe –version of what was later labelled ‘ethical intuitionism’ – showing how it escapes familiar objections and misrepresentations of intuitionism – from Mill to Rawls – in grounding its argument on transcendental arguments while carefully avoiding recourse to introspection and psychological evidence, which has been taken as a too easy target by critics of intuitionism. Thirdly, the chapter discusses Whewell’s ‘philosophy of morality’, as opposed to ‘systematic morality’, not unlike Kant’s distinction between a pure and an empirical moral philosophy. Whewell worked out a systematization of traditional normative ethics as a first step before its rational justification; he believed that the point in the philosophy of morality is justifying a few rational truths about the structure of morality such as to rule hedonism, eudemonism, and consequentialism; yet a system of positive morality cannot be derived solely from such rational truths but requires consideration of the ongoing dialectics between idea and fact in historically given moralities. Whewell’s intuitionism turns out closer to Kantian ethics than commentators have made us believe until now, and quite different from what Sidgwick meant by intuitionism. -/- 17. Adam Smith and the morality of role-switch. The chapter describes first, Hutcheson’s attempt at basing the ‘new science’ of natural law on different bedrock than Pufendorf and the English Platonists, namely a moral sense, a faculty whose existence is assumed to be proved on an empirical basis. The second step is a reconstruction of Hume’s rejoinder in terms of a new science of man including morality on an ‘experimental’ basis, that is, a ‘Newtonian’ hypothetical-deductive approach, distinguished from Hutcheson’s allegedly uncritical descriptive approach to human nature. The third step is a reconstruction of Adam Smith theory of morality understood as emerging from a spontaneous interplay of exchanges of situations (the most basic meaning of the word ‘sympathy’ as construed by this author). -/- 18. Jeremy Bentham and utilitarianism. The bulk of the chapter is dedicated to the doctrines of Jeremy Bentham. The Enlightenment spirit that suggested the idea of a new morality, free from religion, is illustrated. The notion of utility is illustrated as well as the subsequent formulations of the principle of utility. The idea of felicific calculus is discussed, showing how its inner difficulties prompted several reformulations of the principle of utility in order to avoid undesirable implications of proposed formulations. The role of the thesis of spontaneous convergence between interest and duty is discussed, showing how it left numberless questions open, and the distinction between the virtues of prudence, justice and beneficence is described as a way out of the deadlocks of classical utilitarianism. After Bentham, Mill’s reformed utilitarianism is reconstructed, showing how it is a kind of mixed system – as closer to common sense as it gives up Bentham’s claims to consistency and simplicity – resulting as unintended consequences from the controversies in which Mill was too keen to engage. The hidden agenda of the controversy between Utilitarianism and Intuitionism, going beyond the image of the battle between Prejudice and Reason, is described, showing how both competing philosophical outlooks turn out to be more research programs than self-contained doctrinal bodies, and such programs appear to be implemented, and indeed radically transformed while in progress thanks to their enemies no less than to their supporters. -/- 19. Immanuel Kant, practical reason and judgment. The chapter argues that Kant took from Moses Mendelssohn the idea of a distinction between geometry of morals and a practical ethic. He was drastically misunderstood by his followers precisely on this point. He had learned from the sceptics and the Jansenists the lesson that men are prompted to act by deceptive ends, and he was aware that human actions are also empirical phenomena, where laws like the laws of Nature may be detected. His practical ethics made room for judgment as a holistic procedure for assessing the saliency of relevant moral qualities in one given situation; this procedure yields the same results as the geometry of morals does for abstract cases but does so immediately and without balancing conflicting duties with each other, since what makes for the salient quality of a situation is perceived from the very beginning. Kant's practical philosophy is richer than the received image, making room for an ‘empirical moral philosophy’ or moral anthropology including treatment of commerce, needs, value and price, happiness and well-being; the overall social theory and philosophy of history is less different from Adam Smith's than the received image makes believe; the paradox of happiness is central to Kant's philosophy; a distinction between happiness and well-being is clearly drawn; the distinction plays a basic role in establishing a link between the economic and the moral life. -/- 20. Georg Wilhelm Friedrich Hegel and the critique of abstract universalism. The chapter describes first the Romantic movement and the implications some of its concerns, rescuing passions, community, tradition, the individual as the bearer of a unique destiny, and the longing for organic unity between the individual, mankind and nature. Hegel’s contribution is discussed then, highlighting how, on the one hand, he shared a number of these concerns and on the other he had more rationalist leanings. The notion of morality is the pivotal point of the reconstruction, highlighting how Hegel construes this notion as a key to his own diagnosis of the malaise of modernity – the separation of individual and Gemeinschaft – and how his attack on Kant turns around this very idea. -/- 21. Friedrich Nietzsche against Christianity and the Enlightenment. The chapter illustrates first the idea of deconstruction of the back-world of values. Nietzsche claims to be legitimate heir of the French moralists, Leibniz, Kant and Hegel, in so far as he allegedly carries out to its deepest implications their discovery of what lies behind traditional naïve belief in the existence of an objective realm of values just waiting for description by the philosopher. The two exemplars form which genealogy draws inspiration are the classical philologist’s historical reconstructions of lost meanings and the chemist’s decomposition of elements. Then the genealogy of the notions of good and evil carried out in the first dissertation of Genealogy of morals is illustrated with its paradoxical conclusion that will to power is in fact the only ‘genuine’ kind of goodness. The third point illustrated is the dialectic of ascetism and self-realization with its ambiguous outcome. The suggested interpretation of such outcome is that Nietzsche’s normative ethics is a kind of virtue ethics taking an aesthetic ideal as a normative standard -/- 22. George Edward Moore and ideal utilitarianism. The chapter discusses the ideas of common sense and common-sense morality in Sidgwick. I argue that, far from aiming at overcoming common-sense morality, Sidgwick aimed purposely at grounding a consist code of morality by methods allegedly taken from the natural sciences to reach, also in ethics, the same kind of “mature” knowledge as in the natural sciences. His whole polemics with intuitionism was vitiated by the a priori assumption that the widespread ethos of the educated part of humankind, not the theories of the intuitionist philosophers, was what was worth considering as the expression of intuitionist ethics. In spite of a naïve positivist starting-point, Sidgwick was encouraged by his own approach in exploring the fruitfulness of coherentist methods for normative ethics. Thus, Sidgwick left an ambivalent legacy to twentieth-century ethics: the dogmatic idea of a “new” morality of a consequentialist kind, and the fruitful idea that we can argue rationally in normative ethics albeit without shared foundations. Then it reconstructs the background of ideas, concerns and intentions out of which Moore’s early essays, the preliminary version, and then the final version of Principia Ethica originated. I stress the role of religious concerns, as well as that of the Idealist legacy. I argue that PE is more a patchwork of rather diverging contributions than a unitary work, not to say the paradigm of a new school in Ethics. I add a comparison with Rashdall’s almost contemporary ethical work, suggesting that the latter defends the same general claims in a different way, one that manages to pave decisive objections in a more plausible way. I end by suggesting that the emergence of Analytic Ethics was a more ambiguous phenomenon than the received view would make us believe, and that the wheat (or some other gluten-free grain) of this tradition, that is, what logic can do for philosophy, should be separated from the chaff, that is, the confused and mutually incompatible legacies of Utilitarianism and Idealism. -/- 23. Edmund Husserl and the a-priori of action. The chapter illustrates first the idea of phenomenology and the Husserl’s project of a phenomenological ethic as illustrated in his 1908-1914 lectures. The key idea is dismissing psychology and trying to ground a new science of the a priori of action, within which a more restricted field of inquiry will be the science of right actions. Then the chapter illustrates the criticism of modern moral philosophy carried out in the 1920 lectures, where the main target is naturalism, understood in the Kantian meaning of primacy of common sense. The third point illustrate is Adolph Reinach’s theory of social acts as a key the grounding of norms, a view that basically sketches the very ideas ‘discovered’ later by Clarence I. Lewis, John Searle, Karl-Otto Apel and Jürgen Habermas. A final section is dedicated to Nicolai Hartman, who always refused to define himself a phenomenologist and yet developed a more articulated and detailed theory of ‘values’ – with surprising affinities with George E. Moore - than philosophers such as Max Scheler who claimed to Husserl’s legitimate heirs. -/- 24. Bertrand Russell and non-cognitivism. The chapter reconstructs first the discussion after Moore. The naturalistic-fallacy argument was widely accepted but twisted to prove instead that the intuitive character of the definition of ‘good’, its non-cognitive meaning, in a first phase identified with ‘emotive’ meaning. Alfred Julius Ayer is indicated as a typical proponent of such non-cognitivist meta-ethics. More detailed discussion is dedicated to Bertrand Russell’s ethics, a more nuanced and sophisticated doctrine, arguing that non-cognitivism does not condemn morality to arbitrariness and that the project of a rational normative ethics is still possible, heading finally to the justification of a kind of non-hedonist utilitarianism. Stevenson’s theory, another moderate version of emotivism is discussed at some length, showing how the author comes close to the discovery of the role of a pragmatic dimension of language as a basis for ethical argument. Last of all, the discussion from the Forties about Hume’s law is described, mentioning Karl Popper’s argument and Richard Hare’s early non-cognitivist but non-emotivist doctrine named prescriptivism. -/- 25. Elizabeth Anscombe and the revival of virtue ethics. The chapter discusses the three theses defended by Anscombe in 'Modern Moral Philosophy'. I argue that: a) her answer to the question "why should I be moral?" requires a solution of the problem of theodicy, and ignores any attempts to save the moral point of view without recourse to divine retribution; b) her notion of divine law is an odd one more neo-Augustinian than Biblical or Scholastic; c) her image of Kantian ethics and intuitionism is the impoverished image manufactured by consequentialist opponents for polemical purposes and that she seems strangely accept it; d) the difficulty of identifying the "relevant descriptions" of acts is not an argument in favour of an ethics of virtue and against consequentialism or Kantian ethics, and indeed the role of judgment in the latter is a response to the difficulties raised by the case of judgment concerning future action. A short look at further developments in the neo-naturalist current is given trough a reconstruction of Philippa Foot’s and Peter Geach’s critiques to the naturalist-fallacy argument and Alasdair MacIntyre’s grand reconstruction of the origins and allegedly unavoidable failure of the Enlightenment project of an autonomous ethic. -/- 26. Richard Hare and neo-Utilitarianism. The chapter addresses the issue of the complex process of self-transformation Utilitarianism underwent after Sidgwick’s and Moore’s fatal criticism and the unexpected Phoenix-like process of rebirth of a doctrine definitely refuted. A glimpse at this uproarious process is given through two examples. The first is Roy Harrod Wittgensteinian transformation of Utilitarianism in pure normative ethics depurated from hedonism as well as from whatsoever theory of the good. This results in preference utilitarianism combined with a ‘Kantian’ version of rule utilitarianism. The second is Richard Hare’s two-level preference utilitarianism where act utilitarianism plays the function of eventual rational justification of moral judgments and rule-utilitarianism that of action-guiding practical device. -/- 27. Hans-Georg Gadamer and rehabilitation of practical philosophy. The post-war rediscovery of ethics by many German thinkers and its culmination in the Sixties in the movement named ‘Rehabilitation of practical philosophy’ is described. Among the actors of such rehabilitation there were a few of Heidegger’s most brilliant disciples, and Hans-Georg Gadamer is chosen as a paradigmatic example. His reading of Aristotle’s lesson I reconstructed, starting with Heidegger’s lesson but then subtly subverting its outcome thanks to the recovery of the central role of the notion of phronesis. -/- 28. Karl-Otto Apel and the revival of Kantian ethics. Parallel to the neo-Aristotelian trend, there was in the Rehabilitation of practical philosophy a Kantian current. This started, instead than the rehabilitation of prudence, with the discovery of the pragmatic dimension of language carried out by Charles Peirce and the Oxford linguistic philosophy. On this basis, Karl-Otto Apel singled out as the decisive proponent of the linguistic and Kantian turn in German-speaking ethics, worked out the performative-contradiction argument while claiming that this was able to provide a new rational and universal basis for normative ethics. An examination of his argument is some detail is offered, followed by a more cursory reconstruction of Jürgen Habermas’s elaboration on Apel’s theory. -/- 29. John Rawls and public ethics as applied ethics. Rawls’s distinction between a “political” and a “metaphysical” approach to one central part of ethical theory, namely the theory of justice, is interpreted as a formulation of the same basic idea at the root of both the principles approach and neo-casuistry, both discussed in the following chapter, namely that it is possible to reach an agreement concerning positive moral judgments even though the discussion is still open – and in Rawls’ view never will be close – on the basic criteria for judgment. -/- 30. Beauchamp and Childress and bioethics as applied ethics. The chapter presents the revolution of applied ethics while stressing its methodological novelty, exemplified primarily by Beauchamp and Childress principles approach and then by Jonsen and Toulmin’s new casuistry. -/- . (shrink)

The law of informed consent to medical treatment has recently been extensively overhauled in England. The 2015 Montgomery judgment has done away with the long-held position that the information to be disclosed by doctors when obtaining valid consent from patients should be determined on the basis of what a reasonable body of medical opinion agree ought to be disclosed in the circumstances. The UK Supreme Court concluded that the information that is material to a patient’s decision should instead be (...) judged by reference to a new two-limbed test founded on the notions of the ‘reasonable person’ and the ‘particular patient’. The rationale outlined in Montgomery for this new test of materiality, and academic comment on the ruling’s significance, has focused on the central ethical importance that the law now accords to respect for patient autonomy in the process of obtaining consent from patients. In this paper, we dispute the claim that the new test of materiality articulated in Montgomery equates with respect for autonomy being given primacy in re-shaping the development of the law in this area. We also defend this position, arguing that our revised interpretation of Montgomery’s significance does not equate with a failure by the courts to give due legal consideration to what is owed to patients as autonomous decision-makers in the consent process. Instead, Montgomery correctly implies that doctors are ethically obliged to attend to a number of relevant ethical considerations in framing decisions about consent to treatment, which include subtle interpretations of the values of autonomy and well-being. Doctors should give appropriate consideration to how these values are fleshed out and balanced in context in order to specify precisely what information ought to be disclosed to a patient as a requirement of obtaining consent, and as a core component of shared decision-making within medical encounters more generally. (shrink)

What makes an argument in a law case good or bad? This book examines this and other questions central to the study of jurisprudence. Care has been taken to make the legal elements of the book readily accessible to non-lawyers, and the philosophical elements to non-philosophers.

Legal argumentation, like argumentation generally, occurs against a background of shared understanding and competence. This view, inspired by Kuhn's understanding of scientific reasoning, is in stark contrast to more traditional ‘rule-following’ accounts of legal argumentation. Below I consider reasons to reject the more traditional view of legal reasoning in favor of a roughly Kuhnian account of legal reasoning and conclude by raising skeptical questions about the cogency of legal (...) reasoning when the tacitly accepted background conditions that make it possible are not critically examined. (shrink)

In 2013-2022, the Ukrainian ethnic group faced numerous external and internal challenges, which were largely the result of its previous historical development and profound transformations in the public consciousness.These changes, in turn, have become a natural reaction to a number of historical processes and phenomena that have taken place in the territory of the people from ancient times to the present. In this article, the author aims to analyze some factors of stress genesis of the ethnic legal mentality of (...) the Ukrainian ethnic group and show their impact on the content of its behavioral stereotypes. The methodology of this study is comprehensive and is based on socio-philosophical and philosophical and legal analysis of behavioral attitudes of Ukrainians in the field of legal understanding.Results. In the course of analyzing the scientific works of a number of researchers, we found that during its historical existence, the Ukrainian ethnic group has experienced a number of events, phenomena and processes of objective reality, which led to the transformation of the content of its behavioral stereotypes. Factors of stress genesis can be divided into endogenous and exogenous. Exogenous sources of Ukrainian ethnopsychologists include, for example, continuous invasions of various aggressors (Tatar, Polish, Russian, German) and various attempts to acculturate Ukrainians.According to them, endogenous factors include various migration processes that have generated marginality and betrayal by Ukrainian leaders of their people. In the future, the established guidelines play or may play a destructive role in the process of nationbuilding.Conclusions. We found that the stress genesis of domestic political and legal can be defined as the process of creating political and legal mentality of the Ukrainian ethnos under the influence of events, phenomena, processes of its sociohistorical development, as well as factors of geographical location and environmental conditions. community and, as a consequence, cause transformations in the content of its guidelines. In addition, the border situation of Ukrainian lands, long statelessness of the ethnic group, serfdom in the homeland and other factors of socio-historical development of the national ethnic group have led to the emergence or deepening in the people’s consciousness such destructive stereotypes as anarchism, legal nihilism, freedom “, absenteeism and civic passivity, deep corruption traditions and nepotism, low status of state property, etc. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Just and Unjust Peace: An Ethic of Political Reconciliation by Daniel PhilpottGlen StassenJust and Unjust Peace: An Ethic of Political Reconciliation Daniel Philpott New York: Oxford University Press, 2012. 365pp. $29.95Just and Unjust Peace deals with an important question: What does a holistic framework of justice consist of in the wake of its massive despoliation? The wounds of political injustice include the following: violation of the victim’s human (...) rights, harms to the victim’s person, the victim’s ignorance of the source and circumstances of political injustices, the lack of acknowledgment of the suffering, the standing victory of the wrongdoer’s political injustice, and harm to the person of the wrongdoer. In such situations, Philpott argues, “what the government and community withhold is... an acknowledgment not only that a victim has rights but also that his rights were violated and that he suffered because of this violation” (37).The definition of justice in this context of wounds is reconciliation. It “encompasses peace settlements, human rights, democracy, and other key goals of negative and positive peace [as well as]... a broad restoration of right relationship involving a multiplicity of practices that each redress wounds of injustice in a particular way” (48–49).Daniel Philpott affirms peace as human rights, equality, and the rule of law, plus actors and institutions like the United Nations that spread this justice. He presents a fair summary of contending positions on human rights and works to develop overlapping agreement. “What is most essential to right relationship in the political order is human rights, their popular legitimacy, and their corresponding virtues” (55). But also, “It is in redressing wrong conduct—the other dimension of justice—that political reconciliation becomes far more distinctive” (55). This requires a deeper understanding of just peacemaking with restorative justice based in Judaism, Christianity, and Islam, and in insightful assessment of the burgeoning practices of truth commissions and restorative justice in the transitions from dictatorship to democracy.Philpott’s “rooted reason” invites different religions to speak from their depths but also encourages them to speak with reasons that can convince in public discourse (18, 20). Envisioning the incorporation of reconciliation into the modern state “is the life’s work of Rabbi Marc Gopin. In today’s Middle East, [End Page 211] Gopin argues, Jews as well as Christians and Muslims cannot afford to ignore the peacebuilding potential of traditional religious concepts” (132). Philpott also exhibits sensitive understanding of Islam, asking, “Do Islamic texts and traditions contain the materials for the construction of the ethic of political reconciliation that I am proposing? Can Muslims, on the basis of their religious convictions, join in an overlapping consensus on such an ethic?” His answer is a clear yes (153).He identifies and assesses six practices of a politics of reconciliation. The first involves building socially just institutions and relations between states: “Since 1974, some ninety societies... have sought to replace dictatorships with democracies.... A similarly intense global wave of peace operations sponsored by the United Nations... has sought to foster human rights and democratic institutions in states that have seen civil war” (175–76). The second has to do with the practices of political acknowledgment of wrongs: “Human rights are the standard that gives truth commissions and other public forms of acknowledgment form and direction” (188). The third pertains to reparations, with attention to the ongoing effects of historical injustices for descendants (195 and 201). The fourth addresses judicial punishment: “In practicing judicial punishment, a state redresses the violation of the victim’s rights insofar as it expresses, reaffirms, and thereby strengthens human rights as the legally valid values of its realm or of relations between it and another state” (237). The fifth is apology: “Like all of the other practices, apologies performed in political contexts have grown in frequency” (198). Finally, there is forgiveness. “Political injustices harm victims by robbing them of their agency and of their ability to pursue their own and others’ flourishing.... Forgiveness... re-empowers the victim as agent... [and liberates] from anger and resentment” and can also lead to recognition of the victim’s suffering, and to mutual respect for human rights (266–68... (shrink)

Chapter 1 First Person Access to Mental States. Mind Science and Subjective Qualities -/- Abstract. The philosophy of mind as we know it today starts with Ryle. What defines and at the same time differentiates it from the previous tradition of study on mind is the persuasion that any rigorous approach to mental phenomena must conform to the criteria of scientificity applied by the natural sciences, i.e. its investigations and results must be intersubjectively and publicly controllable. In Ryle’s view, philosophy (...) of mind needs to adopt an antimentalist stance to achieve this aim. Antimentalism not only definitively rejects the idea that mind is a substance separated from the body, it also denies that mental phenomena radically differ from physical phenomena by virtue of several unique features. Most problematically, mental phenomena have a conscious character (mental states are related to specific qualitative feelings) and are accessible only to the first-person (only the subject knows directly what s/he is experiencing inside his/her mind). Ryle takes a strong stance on antimentalism going so far as to maintain that an approach to mind which aims to meet the criteria of scientificity set by the natural sciences must avoid any reference to internal, unobservable mental states. In his view (which is considered a specifically philosophical version of psychological behaviorism and also addresses questions put forward in psychological research), mental states can be redescribed in terms of behavioral dispositions. In this chapter, we address the historical roots of the antimentalist view and analyze its relation to the later tradition of research on mind. We show that, compared to the antimentalist stance, functionalism and cognitivism take a step back when they maintain that direct reference to mental states is necessary since mental states cause and therefore explain human behavior. This step backwards is often interpreted as a return to mentalism. However, this is only partially true. Indeed, we suggest that these later traditions retain one important element of Ryle’s antimentalism, i.e. the idea that mental states must be uniquely identified using external and publicly observable criteria, while excluding any reference to introspection and those qualitative dimensions of a mental state, which are accessible only to the first-person. According to the perspective we put forward, this epistemological stance has continued to influence contemporary research on mind and current philosophical and psychological theories which both tend to exclude the subjective qualities of human experience from their accounts of how the mind works. The issue we raise here is whether this is legitimate or whether subjective qualities do play a role with respect to the way our mind works. The conclusion of this chapter anticipates the argument the book makes in in favor of this latter position, starting from a particular angle, i.e. the problem of how we categorize concepts related to our internal states. -/- Chapter 2 The Misleading Aspects of the Mind/Computer Analogy. The Grounding Problem and the Thorny Issue of Propriosensitive Information -/- Abstract. After the crisis of behaviorism, cognitivism and functionalism became the predominant models in the field of psychology and of philosophy, respectively. Their success is mainly due to the new key they use for interpreting mental processes: the mind/computer analogy. On the basis of this analogy, mental operations are seen as cognitive processes based on computations, i.e. on manipulations of abstract symbols which are in turn understood as informational unities (representations). This chapter identifies two main problems with this model. The first is how these symbols can relate to and communicate with perception and thus allow us to identify and classify what we perceive through the senses. Here we limit ourselves to presenting this issue in relation to the classical symbol grounding problem originally put forward by Harnad on the basis of Searle’s Chinese room argument. An attempt to address the problem raised here will be made in chap. 3. The second point we discuss in relation to the mind/computer analogy concerns the idea of information it fosters. Indeed, following this analogy, information is something available in the external world which can be captured by the senses and transmitted to the central system without being influenced or modified by the procedures of transmission. This perspective does not take into account that – unlike computers – in living beings information is acquired by means of the body. As Ulric Neisser has already pointed out, the body is itself an informational source that provides us with additional sensory experience that influences (modifies or complements) the information extracted from the external world by the senses. To develop this line of analysis and to determine exactly what information is provided by the body and how this might influence cognition, we examine Sherrington’s and Gibson’s positions. Moving on from their views, we qualify bodily information in terms of ‘proprioception’. We use ‘proprioception’ in a broad sense to describe any kind of experience we have of our internal states (including postural information as well as sensations related to the general state of the body and its parts). Following Damasio’s and Craig’s studies, we further elaborate this position, arguing that living beings are equipped with an internal propriosensitive monitoring system which maps all the changes that constantly occur in our body and that give us perceptual (‘proprioceptive’ or propriosensitive) information about what happens inside us. Moreover, relying on Goldie’s and Ratcliffe’s view, we show that emotional information can also be considered as a form of ‘proprioception’ which contributes to determining everything we perceive. This analysis leads us to the second main thesis of this book: ‘proprioception’ is a form of internal perception and it is an essential component of the sensory information we can access and use for all cognitive purposes. -/- Chapter 3 Semantic Competence from the Inside: Conceptual Architecture and Composition -/- Abstract. Concepts are essential constituents of thought: they are the instruments we use to categorize our experience, i.e. to classify things and group them together in homogeneous sets. Here we define concepts as the internal mental information (representations) that allows us, among other things, to master words in natural language. By analyzing the way in which individuals master word meanings we explore a number of hypotheses regarding the nature of concepts. Following Diego Marconi’s research, we differentiate between two kind of abilities that underpin lexical competence – so-called ‘referential’ and ‘inferential competence’ – and we suggest that, in order to support these abilities, concepts must also include two corresponding kinds of information, i.e. inferential and referential information. We point out that the most widely used and acknowledged theories of concepts do not make this distinction, instead broadly characterizing the information used for categorization in terms of propositionally described feature lists. However, we show that while feature lists can explain inferential competence, they do not account for referential competence. To address the issue of referential competence we examine Ray Jackendoff’s hypothesis that to account for the possibility of linking perceptual and conceptual information we need to assume the existence of a (visual) representation that encodes the geometric and topological properties of objects and bridges the gap between the percept and the concept. Furthermore, we analyze the extension of this work by Jesse Prinz who introduced the notion of a proxytype, a perceptual representation of a class of objects that incorporates structural and parametric information related to their appearance. However, as we point out, proxytypes can only explain the relationship between perception and concepts with respect to instances that can be perceived through the senses and that belong to the same class by virtue of their physical similarity. We suggest that this notion be extended to include larger conceptual classes. To accomplish this, we further develop Mark Johnson, George Lakoff and Jean Mandler’s idea of a schematic image and argue that conceptual representations include a perceptual schema. Perceptual schemata are non-linguistic, structured experiential gestalts (patterns or maps) that make use of information taken from all sensory modalities, including body perception. They accomplish a quasi-conceptual function: they allow us to recognize and to classify different instances. In this work, we hypothesize that perceptual schemata are an essential component of concepts, but not identical to them. Instead, we suggest that concepts include both perceptual and propositional information with perceptual schemata providing the ‘perceptual core concept’ that grounds related propositional information. -/- Chapter 4 In the Beginning There Were Categories. The Bodily Origin of Prelinguistic Categorical Organization: The Example of Folkbiological Taxonomies -/- Abstract. Studies of categorization in psychology and the cognitive sciences have made use of the notions of ‘category’ and ‘concept’ without precisely defining what is meant by either; in fact, often these terms have been used as synonyms, making it difficult to address specific issues related to conceptual development. This chapter begins by discussing the definitions of, as well as the distinctions between, ‘categories’ and ‘concepts’ in the classical philosophical tradition (Aristotle, Kant and Husserl). We introduce our view of categories with reference to Husserl. Categorization is defined as the way in which our experience is originally (pre-linguistically) organized in a passive and fully unconscious manner on the basis of universal structuring principles. Conceptualization is explained as a later process in which the earlier categorical macro-classes are further subdivided into more specific and detailed sets; this later process also relies on linguistic learning and exposure to culture. On the basis of Ray Jackendoff, Jean Mandler, George Lakoff and Mark Johnson’s work, we hypothesize that categorization is a two-step process that begins with the formation of homogeneous sets of entities partitioned into regions that describe the ontological boundaries of the objects that humans perceive (categories) and continues at a later stage with the development of more specific classifications (concepts). In this chapter, we mainly address three related issues: Why should we assume that there is categorical organization which precedes the development of a conceptual system? How do categories and concepts relate to each other? Shall we hypothesize that categories are innate or that they are formed before concepts on the basis of information and organizational structure available at a very early developmental stage? We show that categorical partitions are necessary for categorization and, following Mandler, that the general categories we form at an early age do not match our adult superordinate concepts. As for the third issue, we argue that there might be no need to assume that categories are innately present in the human mind, since their formation can be explained – at least in certain cases – by basic mechanisms that work on body (propriosensitive) information. This hypothesis will not be discussed in general, but in relation to a particularly relevant example of categorical partition, i.e. the folk-biological dichotomy between ANIMATE/INANIMATE. This is compared with other dichotomies that derive from it, but are not directly categorical such as LIVING/NON-LIVING and BIOLOGICAL/NON-BIOLOGICAL. -/- Chapter 5 Internal States: From Headache to Anger. Conceptualization and Semantic Mastery -/- Abstract. Here we ask if we can also apply the distinction between referential and inferential competence we introduced in Chapter 3 to words that do not refer to things that are perceived using the external senses, especially to words/concepts that denote bodily experiences (such as pain, thirst, hunger, etc.) or emotions. We introduce and discuss the hypothesis that – even though such words/concepts do not refer to intersubjectively identifiable entities in the external world – they do have a kind of referent that can be accessed via direct perception, more specifically ‘proprioception’, as we have defined it in terms of all propriosensitive information we can consciously access. In the first part of the chapter, we specifically consider terms denoting bodily experiences such as ‘pain’ or ‘hunger’ and argue that their referents are identified and classified from a first-personal point of view on the basis of four main characteristics: their specific intensity, their localization in the body, their co-occurrence with other signals and above all their specific qualitative sensations. Emotions are addressed in the second part of the chapter. We suggest that there is a continuity between bodily experiences and emotions. In particular, we argue for a perceptual theory of emotions in line with that proposed by James and Lange at the end of the 19th century and developed more recently by authors such as Damasio (see also chap. 2§5, §6). The hypothesis we put forward is that the referential information that supports the categorization of emotions and therefore also our mastery of terms referring to emotions consists in the perception (i.e. the ‘proprioception’) of those bodily states and changes in bodily states which constitute our emotional experience. In the context of this discussion we examine some objections to this line of reasoning that arise from a cognitivist perspective and following authors such as Oatley, Johnson-Laird and Frijda, we distinguish between basic emotions that can be identified and classified solely on the basis on how they feel and complex emotions whose identification and classification additionally depends on cognitive factors. To describe how emotions are identified and classified on the basis of how they feel, we rely on Marcel and Lambie’s distinction between an ‘emotion state’ and an ‘emotion experience’. Both notions indicate kinds of feelings that we consciously experience. However, they describe first-order and second order emotion awareness respectively. The emotion state is the feeling we have of the bodily states and changes that occur when we are experiencing an emotion, while the emotion experience is the fully developed and integrated emotion we both experience and are, with reflection, aware of experiencing. On the basis of this differentiation, we also show that the same characteristics that aid in the identification and classification of bodily experiences (specific qualitative sensations; somatic localization; specific intensity; presence/absence of specific concomitant sensations) can also be used for the identification and classification of emotions – at least basic emotions. In the last two sections of the chapter we present some clinical evidence on the semantic competence of people who suffer from Alexithymia and Autism Spectrum Disorder which supports the conclusions of our preceding analyses. -/- Chapter 6 The ‘Proprioceptive’ Component of Abstract Concepts -/- Abstract. In this chapter, we address the issue of whether the mastery of abstract words requires only inferential knowledge and thus, if the concepts that support the mastery of abstract words include only linguistic information. We start by differentiating the notions of ‘abstract’ and ‘general’ which are often erroneously confused. We then identify a strict definition of abstract, as contrasted with ‘concrete’, that applies to words or concepts whose referent cannot be experienced by the senses. We argue that abstract words/concepts would be better described as theoretical, because they are usually conceived as structured sets of inferential knowledge expressed linguistically; that is, as small theories. Pointing out parallels with Carnap’s analysis of this issue in philosophy of science, we hypothesize that words/concepts denoting non-observable entities are not all ‘equally theoretical’, because their link to sensory experience can be stronger or weaker. We revive the distinction, inspired by Quine, between theoretical and intertheoretical concepts/words. This distinction relies on the fact that the former – unlike the latter – retains a strong, although indirect, connection with perception. In Quine’s discussion, perception is understood uniquely in terms of observability, i.e. of external sensory experience. Here we argue, however, that bodily, ‘proprioceptive’ (i.e. propriosensitive) experience can also serve to referentially ground theoretical (i.e. abstract) concepts/words. We frame this issue using the example of the theoretical concept ‘freedom’ and Lakoff’s hypothesis that this concept is developed on the basis of bodily information. We contrast this with the example of ‘democracy’ which more closely resembles an intertheoretical concept/word. Furthermore, we show that one of the classical views put forward in psycholinguistic research to explain how abstract concepts are mentally represented – i.e. Paivio’s Dual Coding Theory – points in the same direction as our analysis. The same is true of Barsalou’s work suggesting that we use internal information to understand at least some abstract words. To sustain this position, we put forward two lines of evidence: the first comes from psycholinguistic studies while the second examines deficits of semantic competence exhibited by people with Autism Spectrum Disorder. On the basis of our analysis, we put forward a classification that distinguishes between different kinds of concreteness and different degrees of abstraction: concepts/words referring to body experiences and basic emotions are described as analogous to concrete concepts/words because they are grounded in perceptual (i.e. propriosensitive) experience, while abstract concepts/words are considered more or less abstract depending on whether they are intratheoretical (and rely entirely on inferential information) or theoretical (and are partially grounded in perceptual – or more often in propriosensitive perceptual – information). In the last section of the chapter we consider two scales that have been used in psycholinguistic research to measure the degree of concreteness vs. abstractness of words and we show that – used conjointly – they can provide a measure of the internal vs. external grounding of specific words. (shrink)

Animals in Brazil: Economic, Legal and Ethical Perspectives presents a broad overview of the complicated role of animals in Brazilian society. Its four substantive chapters survey the landscape of animal agriculture, animal protection laws, recent animal jurisprudence, and the underlying cultural factors that have shaped the Brazilian people's relationship with and treatment of animals. Despite the book's title, there is no chapter addressing economics. However, it represents the first book in English addressing the plight of animals in Brazil and (...) makes a marked contribution to animal ethics in Latin America. At its best, it is very good, and overall, the volume is a worthwhile addition to the bookshelf of anyone interested in Brazilian animal law.The introduction by the book's editor, Carlos Naconecy, does exactly what an introduction should do: it succinctly describes the content of the chapters to follow. My quibble is that while Naconecy has excellent English and expresses himself well, the essay badly needed the editorial scrutiny of a native English speaker. The succeeding chapters each begin with an abstract, a simple but useful aid to any scholar who might not be interested in all of the issues the book covers.Chapter 1, “Food Animals in Brazil: Five Decades of Transformation,” ably describes Brazil's progression from a primarily subsistence-based agrarian culture to its full-scale embrace of industrial agriculture with all of its incumbent horrors. In just 50 years, Brazil has gone from a net importer to the world's second-largest exporter.The story of the country's transition to confinement, meat-based agriculture is all too familiar. It wrought havoc on community and family ties and overwrote traditional dietary practices, leading to widespread obesity, disease, and nutrient deficiencies. It also made indifference toward agricultural animals a new national norm. The level of cruelty that is both legal and common in Brazilian industrial agriculture would strain credulity if it weren't so similar to those of so many other countries. Indeed, the authors’ discussion of the systemic animal mistreatment, devastating environmental consequences, and accompanying cultural erosion in Brazil could easily have been cut and pasted into a chapter surveying the last 50 years in the United States.The second chapter is the strongest in the collection. “The Legal Protection of Animals in Brazil: An Overview” summarizes the country's animal-legal framework and situates it within the context of Brazil's constitutional prohibition against animal cruelty. The authors explain why the constitution offers little practical protection. Under the prevailing view, only those acts undertaken for the purpose of causing needless suffering constitute cruelty. Since much animal cruelty is ostensibly done for other reasons (food, science, etc.), the cruelty prohibition does not reach the majority of offenses.The authors next construct a syllogistic argument that the current legal classification of animals as “things” rather than beings who are the subjects of rights is logically and ethically flawed. Since cruelty involves suffering, and objects cannot suffer, and since animals suffer (otherwise animal cruelty laws would be pointless), then animals must be subjects of the law. Phrased differently, animals must be rights-holders. This leads into a compelling argument that the constitution not only supports but requires such an interpretation.“Cases and Debates in the Brazilian Animal Rights Arena” does exactly what its title suggests. It looks at recent animal-related judicial developments and situates them within a broader cultural and legal context. For example, the Supreme Court recently held that the Vaquejada, a rodeo-like event involving chasing and tackling terrified cows, was unconstitutional.Immediately following the decision, the legislature amended the constitution to classify the Vaquejada as an important cultural activity and thus protected under a different constitutional provision. The courts are currently considering whether that constitutional amendment is itself unconstitutional. We are further told about movements against foie gras and vivisection and about recent developments regarding custody disputes over domestic animal companions.The final chapter, “Factors That Influence the Brazilian Ethos Regarding Animals” is a broad discussion of the ways Brazilian history and culture have impacted attitudes toward animals. It is argued that because Brazil was the last Western country to eliminate slavery, Brazilians are more prone to treat animals like property and that the Brazilian temperament makes them more likely to be passionate than pragmatic. We also learn that a cultural reluctance to protest against social wrongs enables Brazilians to remain silent in the face of animal injustice and that the country's Catholic tradition instilled the idea that only people were made in the image of God and that animals therefore matter less. These observations strike me as overbroad and problematic. For example, millions of Brazilians have spent much of the past decade protesting government corruption, and the country has an impassioned animal advocacy movement. Furthermore, it is not clear that Brazilians necessarily treat animals differently than people from other countries with very different histories.Overall, Animals in Brazil begins the work of new scholarship in English on animals in the Brazilian context. The fact that some chapters are more informative and useful than others is an inevitable by-product of an edited volume and should not deter those interested in Brazilian animal law from reading it. The excellence of the first two chapters alone makes the book worthwhile. (shrink)

The right of Australian Indigenous groups to own traditional lands has been a contentious issue in the recent history of Australia. Indeed, Aborigines and Torres Strait Islanders did not consider themselves as full citizens in the country they had inhabited for millennia until the late 1960s, and then only after a long campaign and a national referendum (1967) in favour of changes to the Australian Constitution to remove restrictions on the services available to Indigenous Australians. The concept of terra (...) nullius, misapplied to Australia, was strong in the popular imagination among the descendants of settlers or recent migrants and was not definitively put to rest until the Mabo decision (1992), which also established a firm precedent for the recognition of native title.This path to equality was fraught and made lengthy by the fact that the worldviews of the Indigenous Australians (i.e. Aborigines and Torres Strait Islanders) and the European (mainly British and Irish) settlers were so different, at least at a superficial level, this being the level at which prejudice is typically manifested. One area where this fact is particularly evident is in the area of the conceptualisation of property and especially the notion of land “ownership” and “use”.In this paper, we will focus on these terms, examining the linguistic evidence of some of the Australian languages spoken traditionally by Indigenous Australians as one means (the only one in many cases) of gaining an insight into their worldview, comparing it with that underlying the English language.We will show that the conceptualisations manifested in the two languages are contrasting but not irreconcilable, and indeed the ability of both groups of speakers (or their descendants in the case of many endangered Australian languages) to reach agreement and come to develop an understanding of the other’s perspective is reason for celebration for all Australians. (shrink)

Ex interiore ipso exeas. Preface. This book reconstructs the history of a still open dialectics between several ethoi, that is, shared codes of unwritten rules, moral traditions, or self-aware attempts at reforming such codes, and ethical theories discussing the nature and justification of such codes and doctrines. Its main claim is that this history neither amounts to a triumphal march of reason dispelling the mist of myth and bigotry nor to some other one-way process heading to some pre-established goal, but (...) instead to a chain of controversies where the partners’ will to win unintentionally yields a wealth of insights on human existence that has still something to teach us. -/- 1. The Hellenic moral tradition. -/- Two different traditions of morality in vi-v century Greece are described. The birth of philosophical questioning of traditional morality and temporal and spatial variation of custom is described within the context of the v century crisis, the demise of traditional aristocratic and tyrannical rule and the birth of democracy. Two conflicting answers to the challenge are reconstructed, namely conventionalist or immoralist theories formulated by the Sophists and the eudemonist and intellectualist Socratic theory. -/- 2. Plato and the Good. -/- Plato’s own reformulation of Socrates rejoinder to the Sophists is reconstructed. His psychological views, his classification of the four cardinal virtues and his political theory are described as parts of a unitary system, culminating in an extremely realist moral ontology identifying the idea of the good with the essence of the (moral and extra-moral) world itself. -/- 3. Aristotle and practical philosophy. -/- Aristotle’s invention of practical philosophy as a field separated from first philosophy is shown to be an implication of his break with Plato moral ultra-realism. Aristotle’s agenda in his moral works is arguably dependent on a polemical intention, namely dismantling Socratic intellectualism. The semi-inductive or virtuously circular method of practical philosophy is illustrated, starting with the received opinions of the better and wiser individuals and trying dialectically to sift what is left of mistake and inconsistency in such opinions, finally trying to correct mistakes and make the overall practical science more consistent. The relationship of individual ethics, or ‘monastics’, with the art and the science of the pater families, or ‘economics’, and the science of the ruler and citizen, or politics, is illustrated. The nature of virtues, or better, excellences of character, is discussed, highlighting the basic role of hexes, or ‘dispositions’. Prudence, or better, practical wisdom, is the focus of the chapter. Its relationship with boùleusis or deliberation is discussed, and its autonomous status vis-à-vis theoretical knowledge is stressed. -/- 4. Cynics and Stoics: ethics as therapy. -/- The chapter provides an overview of Hellenistic ethics, which almost amounts to Hellenistic schools of philosophy, in so far as ‘philosophy’ became in these centuries primarily the name for a way of life. The typical character of the Cynical movement is highlighted, that of a school of life, not a school aimed at providing any kind of intellectual training was to be provided. The various phases of Stoicism are described, and the shifting place that was given to ethics in the Stoic system of idea, culminating in the paradoxical view of ethics, its impossibility in principle notwithstanding, as the only truly significant and necessary part of philosophy. The peculiar character of the Epicurean school is described, a combination of the science of well-being aiming, more than pleasure understood as in the popular view, the reduction of useless suffering, of unnecessary needs, and at a balanced selection of pleasures of the best and most durable kind. -/- 5. Roman and Imperial Moralists. -/- The chapter is dedicated to the reconstruction of a particular kind of literature, whose specific features have long been under-stressed, namely the Roman and Imperial moral literature. Cicero is treated at some length, showing how his own synthesis of various Hellenistic trends is as a truly philosophical enterprise, deserving serious consideration after one or two centuries when he was confined to the role of literate. Epictetus is given pride of place, stressing the novelty of his approach to ethics as cognitive therapy, in this case just following an already existing new wave of interest after nineteenth-century oblivion justified by alleged lack of authentic ‘philosophical’ character. -/- 6. The Hebrew moral tradition. -/- A reconstruction of basic ideas from a few books of the Hebrew Bible is provided, starting with the Prophetic tradition and the focus on God’s mercy as the source of motivation and standard for human behaviour. Then a comparative analysis is undertaken of a parallel tradition, namely the three codifications of the Torah (Law or, better, Instruction), highlighting how a core of moral ideas may be recognized as a basis and preamble of codification of civil law, cultural practice, and regulation of ritual purity. The importance of Levitic is stressed as the turning point when the stress on mercy, typical of the Prophetic tradition, starts being combined with legal tradition yielding the change in the sensibility of the Second Temple time. -/- 7. Second Temple Judaism. -/- This chapter describes the Long March leading from the post-exile Zadokite restoration to the first-century aevi vulgaris. The first topic reconstructed is the Zadokite theology of the double retribution. The second is the alternative Enochic tradition consistently rejecting the central role of the Temple, the Priesthood and worship as atonement for sins and offering as an alternative God’s unlimited mercy and preaching mercy, not sacrifice as the way of behaving requested by God. Wisdom literature, the third subject discusses, is a kind of third way, on the one hand increasingly critical towards the double retribution and ruling theology’s optimism facing the world as it is and on the other mocking at the Enochic current as a band of dreamers and visionaries. The third way consists in disenchantment facing the word as it is combined with a refusal of vain and childish hope of prizes for the righteous, suggesting instead the leading idea of right deeds for righteousness’s sake. Rabbi Hillel, Rabbi Yeshua and Philo of Alexandria are described as the three leading figures at the culminating point of such process of emergence of a new sensibility, gradually including mercy as an essential part of justice and establishing the starting point of both the Rabbinic and the Christian tradition. This starting point consists precisely in the precept of one’s neighbour’s love or of the golden rule, whose meaning is, arguably, more consistent than a long-lasting Christian tradition deriving from John and Augustine made us believe. And Christian morality, vis-à-vis allegedly legalist ‘Ancient Testament’ teachings, is less of a novelty than most early Christian writers announced. -/- 8. Talmudic moral doctrines and proto-Christian paraenesis. -/- The first three sections examine the moral doctrines of so-called 'ethical Treaties' from the Talmud, a group of treaties, among which the best known is Pirke Avot, that were left out of the six "orders" of the canon as they did not fit in any of the six groups of issues ritual or legal on which the division was based. According to Maimonides, their peculiar theme is provided by the Deot, 'opinions', i.e., mental dispositions, that is, the translation of the Greek term hexes and Arab akhlak (in turn providing in this language the name for ethics as such). The three topics I reconstruct are: i) the notion of Torah: The Torah is understood as the world order itself, or as the ‘Wisdom’ that existed even before creation and was "the tool by which the world was built"; however, the Torah is an earthly and human entity, as it was "received" by humans, and from that very moment belongs to them; ii) the relationship between love of God and love of neighbour; the treaties require us to study and practice the Torah ‘for its own sake’, that is, require us to act out of love, not out of fear or hope of reward; iii) the idea of sanctification of daily life: having disappeared with the destruction of the Temple the possibility of any conflict between liturgical service and everyday life, the latter is assumed to be in itself divine service: to give food to the poor has the same value as sacrifices in the Temple, and as an implication, the insistence become recurrent on the goodness of created things in themselves along with a polemic against ascetic currents. The conclusions drawn are: i) the moral teachings of the Talmud and those of Yeshua are, rather than similar, virtually identical; one may safely say that the precept of love and the golden rule are central ones for all Talmudic rabbis, that mercy plays an indispensable role alongside with justice, and the latter is not a different thing from one’s neighbour’s love; ii) a peculiarity of Talmud rabbis facing Yeshua is the idea of study as worship, and knowledge as a source of justice; but this is an idea of Judaism after the Temple's destruction that cannot be attributed to the Pharisees of Yeshua’s time; iii) the relation of study and practice in the Talmud parallels that between faith and deeds in Paul's epistles, that is, respectively faith or learning are a necessary and sufficient condition to be recognized as righteous, but deeds are the inevitable effect of either faith or learning. The last two sections examine first the various Christian currents and then Gnostic para-Christian or non-Christian currents as well as Manicheism. The sayings ascribed to Yeshua are examined first, yielding the conclusion that a close equivalent may be found for every saying in Talmudic literature and yet the whole is ascribed to one rabbi, with rather consistent stress on God’s mercy and unconditional forgiving as the mark of true imitation of God. Thus, Yeshua’s teaching is pure, purest Judaism. The last section describes briefly the galaxy of Gnostic currents and Manicheism, trying to sketch the profile of moral teachings resulting from an encounter of Asian spiritual traditions, Hellenistic lore and sparks of teachings from apocalyptic Jewish currents. -/- 9. Christianity as “philosophy”. -/- The chapter reconstructs the stormy story of several encounters between Christian currents and Hellenistic philosophical schools. The first one was with late Cynicism. Recent, rather controversial, literature discovered the jargon and several rhetorical topics from the Stoic and Cynical popular philosophy in a few books from the New Testament itself. This, far from proving that Rabbi Yeshua himself had been influenced by cynical preachers, is a proof of the necessity to translate the original Christian message in a Greek lexicon deeply impregnated with cynic terminology. The second was with Platonism, yielding the mild and temperate moral teaching of Clemens of Alexandria, teaching the sanctity of nature and the human body, the joy of moderate fruition of ‘natural’ kinds of pleasures, and the beauty of the marital life – in short, the opposite of the standard picture of Medieval Christianity. Ambrose of Milan brings about a different kind of synthesis, namely with Middle Platonism, where Stoic themes prevail. The most shocking case is Augustine, where early Manichean education is overcome in a former phase by a synthesis of Plotinian Neo-Platonism and Christian preaching, yielding a sustained polemic with the Manicheans and rather optimistic views on life and Creation, the body and sexuality, and Hebrew-Judaic tradition not far from Clemens of Alexandria. In a later phase, occasioned by controversy on the opposite front, with such Christian currents as the Pelagians and Donatists, Augustine comes back to heavily anti-Judaic and world-denying ascetic attitudes where is earlier Manichean upbringing seems to emerge again. The tragedy of medieval Christianity will be the later Augustine’s overwhelming influence. A final section is dedicated to the monastic tradition where a curious mixture of world-denying asceticism with an astonishingly penetrating ‘science’ of introspection emerges. -/- 10. Ethics in the Arabic-Islamic Philosophy. -/- The Qurān and the qadit, that is, collections of sayings ascribed to the prophet Muhammad contain a wealth of precepts and catalogues of virtues mirroring moral contents from the Jewish and the Christian traditions, among them the basic notion of imitation of the Deity, where mercy is assumed to be its basic trait. An important tradition within Islam, namely Sufism, stressed to the utmost degree the role of mercy, turning Islam into a mystic doctrine centred on the retreat from the world, abandonment to God’s will, and a peaceful and fraternal attitude to our fellow-beings. A secular literary tradition originating in the Sassanid Empire, the literature of advice to the Prince, had for a time a widespread influence in the newly constituted Arabic-Islamic commonwealth. In a later phase, the legacy of Hellenic philosophy made its way into the intellectual elite of the Islamic world. The first important legacy was Platonic, and the Republic became the main text for Islamic Platonism. In a second phase also Aristotelian and Stoic influence were assimilated. Miskawayh’s treatise was the masterwork at the time Arabic philosophy reached its Zenith. It is a treatment of the soul’s diseases and their remedies, combining the Aristotelian doctrine of the golden mean with the Stoic doctrine of the passions and elements of Galenic medicine. Towards the eleventh-twelve centuries, a war raged among theologians and philosophers, finally won by the former with the disappearance of philosophy as such. The newly established mainstream, yet, was no kind of intolerant fanaticism. It drew from the work of mystic theologian Al-Ghazālī, the best heir of Sufism, teaching a tolerant and peaceful attitude to our fellow-beings and a passive attitude to destiny as an expression of the Divine will. -/- 11. Ethics in the Jewish philosophy. -/- The encounter between the Talmudic tradition and Hellenic philosophy had taken place for the first time in Alexandria at the time of Philo but the two traditions had parted way again. In fact, the kind of Platonic Judaism founded by Philo survived only within Christianity, in the fourth Gospel and then in writings by Clemens of Alexandria. The Talmudic literature had absorbed too a few traits from the Hellenic Philosophy, namely an idea of ethics as care of the self and a role for the education of character as propaedeutic to theoretical knowledge. In the Arabic-Islamic world, a second round started when Jewish authors writing in Arabic undertook the task to prove the full compatibility of the tradition deriving from Tora and Platonic philosophy. The culmination of this attempt is provided by Moshe ben Maimon who tried to use Aristotelian ethics as a language into which the teaching from the Pirke Avot could be translated. -/- 12. The practical philosophy revival in Latin Europe. -/- A reconstruction is carried out of a fresh start of philosophical ethics in Latin Europe at the turn of the Millennium rescuing a Platonic and Augustinian legacy, with Anselm and Peter Abelard. In this phase remarkable innovations are introduced, including Abelard’s claim of the obliging character of erring consciousness. In a second phase, the rediscovery of Nicomachean Ethics thanks to Latin translation of Arabic versions, gives birth to a new wave of ethical studies, recovering the very idea of Aristotelian practical philosophy, with the potential implication of a full legitimization of natural morality, i.e. ethics without Revelation. -/- 13. Scholastic practical philosophy: Thomas Aquinas. -/- Aquinas’s ethics is theological ethics out of which it would be vain to try to extract self-contained philosophical ethics. His treatment of topics in philosophical ethics, yet, does not boil down to the repetition of Aristotelian arguments but is rather a creative reshaping of such arguments. For example, he introduces also in the practical philosophy a first principle parallel to the principle of non-contradiction; and he also carries out a synthesis of Aristotelianism, Stoicism, neo-Platonism. Even though it is essentially moral theology, Aquinas’s doctrine - unlike Augustine – grants full citizenship to "natural" morality, firstly by rejecting the claim that the corruption of human nature due to the original sin is so radical as to leave pure nature incapable of moral goodness. The doctrine is presented in a more sophisticated formulation in a few of the Quaestiones such as De Malo and De Veritate, in the Summa contra Gentes and in the commentaries to Aristotle than in the famous Summa Theologica, but the latter work includes the only or the largest exposition of some decisive part of the theory. Thus, the Summa Theologica should be read for what it is more than criticized for not being what it was not meant to be. It was not meant to be the brilliant synthesis of all that Reason he had been able to produce with what Revelation had added about which the Neo-Thomists used to dream, but rather a manual for the training of preachers and confessors, where theoretical claims are not too ambitious, and a few serious tensions are left. Besides a jump between the Prima Secundae and the Secunda Secundae, being the former an essay in virtue theory and the latter a handbook for confessors, the most serious tension is perhaps the one between the ethics of right reason presented in most of Prima Secundae and the eudemonistic ethics developed in quaestiones 1-5 of the same part; the alternative ethical theory which also may be found in Augustine, the Stoic view of a cosmic reason eventually coincident with the moral law, was believed by Anselm (followed by John Duns Scotus and William of Ockham) to be incompatible with eudemonism. It is questionable whether Thomas was able to solve the tension proving that it is just an apparent tension, in so far as the right reason and bliss derived from the knowledge of God tend to coincide, but this is just a conjecture. Thomas’s ethics is a virtue ethics, not a law-based one, and moral judgment focuses on the virtues, particularly charity, not on the commandments and even less on absolute prohibitions; Thomas, however, would not have considered a drastic alternative between law and the virtues such as the one which has been advanced in late twentieth-century philosophy to be justified. Nonetheless, when it discusses ‘special’ virtues, it ceases to be an ethics of virtue and becomes a disappointing and often contradictory discussion of legal and illegal acts. Such a discussion takes most of the time ‘reasonable’ middle positions on controversial issues but not the alternative approach that Aristotelianism would have made possible; even when some occasional Aristotelian claim shows up, such as money’s barrenness as a reason against usury, this seems to be made by an author who apparently ignores the Aristotelian Thomas of the Prima Secundae. It is an ethic of human autonomy which recognizes the binding character of the individual conscience and, potentially, even a duty to disobey unjust laws. It is true that what Thomas writes in his discussion of the death penalty and persecution of heretics is simply disgusting, and yet we should blame Thomas the man, not the Thomist ethical theory. Finally, Thomas’s ethics is no way an ethical ‘absolutism’, as both the traditionalist Catholic theologians and secularists tend to believe, but rather an ethic of prudential judgment on the individual case. Exceptions to this approach – or better the result of logical fallacies – are provided by the thesis of the absolute character of negative precepts and of the existence of so-called intrinsically evil acts, a thesis that would simply cease to make sense in the light of Thomas’s own distinction between human act and natural act, carrying consequences that Thomas did not live long enough to draw. -/- 14. Scholastic practical philosophy: John Duns Scotus and William of Ockham. A reconstruction is carried out of the ethical doctrines by both most authoritative Franciscan doctors. Their continuity with Aquinas is vindicated against prejudice carried by centuries of polemics within the Catholic Church and tendentious disparaging of both as forerunners of execrable Reformation. Besides aspects of continuity, also the important novelties are illustrated, first John’s abandonment of Aquinas’s and Augustine’s eudemonism, asserting righteousness for righteousness’s sake, and then William’s explicit defence of the philosopher’s virtues, that is, natural morality, and his solution to the dilemma of God’s omnipotence and the universal validity of natural law extending to God himself. -/- 15. Aristotelianism interpreted by the Magistri Artium. -/- A reconstruction of the until recently forgotten ethical doctrines by the Parisian Magistri Artium, falsely depicted as ‘Averroists’ and either deprecated as heretics or mistaken for predecessors of modern secularism. In fact, they illustrate a view of ‘natural’ virtue as may be understood by human reason without the assistance by Revelation. -/- Etiamsi daremus Deum non esse. Intermediate considerations. Three considerations may be suggested by the story told in the book. The first one is that intellectual histories have been mounted in the past with the same state of mind as one may mount a war chariot. Such constructions are not very helpful as tools for understanding the past. Wars waged in the past have left the field obstructed by ruins not easy to remove even by those historians who have animated by an impartial academic motivation. They have been influenced too by consequences of past emphasis on some authors and damnatio capitis suffered by others, by stratifications left on sources by secondary literature and translations, by allotment of originally close sources to different literary genres, by the monopolization of religious texts by churches with full cooperation by secular scholars who still fear contamination. The second one is that aware or unaware ethnocentrism has carried various calamities to our comprehension of the past. Their last vestiges have surfaced again in the semi-scholarly discussion on the idea of Europe occasioned by the debate on a project of a European Constitution. Mention of Europe’s Christian roots has been the clumsiest move. Proclamations of such roots were so obvious in what they affirmed as they were totally off-path concerning what they omitted, namely that he modern European moral tradition included legacies from Middle-Eastern wisdom, Hellenic philosophy, Roman Imperial legal literature, and, besides, a Jewish legacy in turn incorporating other more ancient Middle-Eastern legacies and which has been partly conveyed by Christianity. And the Islamic-Arabic philosophy too, in so far it made the Nicomachean Ethics available to Latin Christian scholars, is one more of Europe’s roots. The third is that religious traditionalists and secularist fundamentalists have gone hand in hand for a couple of centuries in either extolling or deprecating the allegedly Modern idea of Ethics without God, first formulated by Hugo Grotius with the claim that natural law would still be valid ‘etiamsi daremus – quod sine summo scelere dari potest – Deum non esse’. The facts are, firstly, that this is not an irreligious claim and Grotius was just a pious and meek Christian and, secondly, that it is not a ‘modern’ claim but rather one more formulation of the claim that there is a natural morality, independent of divine revelation, a claim shared by Moshe ben Maimon, Aquinas and William of Ockham. -/- . (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Ritual and Reverence in Ancient China and TodayStephen C. AngleReverence: Renewing a Forgotten Virtue. By Paul Woodruff. Oxford and New York: Oxford University Press, 2001. Pp. 248.It is a sad commonplace that works in moral philosophy rarely do much to make their readers more moral. Unusually gifted classroom teachers can sometimes make a difference in students' lives, though, and now and again there appears a piece of philosophical writing (...) that makes a similar impact. Paul Woodruff has written an extraordinary book that has a chance of joining this select company. Reverence: Renewing a Forgotten Virtue wears its scholarship and philosophy lightly; in addition to lucid exposition and argument, it employs anecdotes, readings of a range of poems, and in one chapter a question-and-answer format in order to engage readers in the very real, very contemporary concerns that motivate the book. Woodruff believes that we have largely forgotten how to talk about reverence, even though its practice has not disappeared, so his sources for the theory of reverence are largely ancient-both Greek (his specialty) and Chinese. He weaves together classical text and contemporary issue in masterful fashion, producing a book that is both philosophically challenging and potentially transformative. I will comment mainly on its philosophical themes, but I urge one and all to experience the book's power.Reverence, says Woodruff, is a virtue: indeed, one of the most important of virtues. It is the "well-developed capacity to have the feelings of awe, respect, and shame when these are the right feelings to have" (p. 8). He characterizes the "belief in human imperfection" as the "central belief of reverence" (p. 199), and this makes sense, even though reverence is not primarily about beliefs. The idea that we are limited or imperfect informs each of the three feelings through which reverence is expressed. It is easy to see how this works with awe, but respect and shame are more complicated, requiring further discussion below. Woodruff offers the following initial formulation of the interrelationship among the three:Reverence begins in a deep understanding of human limitations; from this grows the capacity to be in awe of whatever we believe to be outside our control—God, truth, justice, nature, even death. The capacity for awe, as it grows, brings with it the capacity for respecting human beings, flaws and all. This in turn fosters the ability to be ashamed when we show moral flaws exceeding the normal human allotment,(p. 3)He continues by saying that this syndrome was recognized by the Greeks before Plato, and that "the immediate followers of Confucius thought much the same." [End Page 471]Woodruff's tying of reverence to specific thinkers immediately makes one wonder what word or words he is translating as reverence, if it was known in Greece and China. Comparative philosophers will also ponder the words "much the same": is there really a single virtue called "reverence" that, without our previously realizing it, can be found in both the Greek and Chinese traditions? Or are there two, more loosely related, ideas?Woodruff's answer is that there is a single virtue, but that it is realized and theorized somewhat differently in different contexts. Indeed, he does not insist that the concept of reverence that he finds in ancient Confucianism is the only Confucian concept of reverence. He relies only on the Analects and Mencius as sources, and readily acknowledges that his picture is partial and simplified (p. 230). He makes similar qualifications with respect to his Greek sources. His "reverence," then, is in the first instance a rational reconstruction built upon the ideas/terms of different traditions as well as his own philosophical reasoning. In the Greek case, he says that the concept he is exploring is "named both by hosiotēs and its near synonym eusebia, which is frequently translated as 'piety'" (pp. 225-226). Once we know this, it is easy to see that his topic was discussed in Greek texts and to ask how these texts fit the awe-respect-shame schema he has identified.Rather than pursue this topic—on which see particularly Woodruff's chapter 5—I am going to spend some time... (shrink)

We argue that legal argumentation, as the subject matter as well as a special subfield of Argumentation Studies (AS), has to be examined by making skilled use of the full panoply of tools such as argumentation and story schemes which are at the forefront of current work in AS. In reviewing the literature, we make explicit our own methodological choices (particularly regarding the place of normative deliberation in practical reasoning) and then illustrate the implications of such an approach (...) through the analysis of a case study in the English law of evidence. We argue that a clear distinction must be drawn between practical argumentation and stories. Because of the institutional separation between legal judgment and fact-finding in common-law jury trials, we argue for the combination of argument and story-based analysis. (shrink)

Intent and mitigating circumstances play a central role in moral and legal assessments in large-scale industrialized societies. Al- though these features of moral assessment are widely assumed to be universal, to date, they have only been studied in a narrow range of societies. We show that there is substantial cross-cultural variation among eight traditional small-scale societies (ranging from hunter-gatherer to pastoralist to horticulturalist) and two Western societies (one urban, one rural) in the extent to which intent and (...) mitigating circumstances influence moral judgments. Although participants in all societies took such factors into account to some degree, they did so to very different extents, varying in both the types of considerations taken into account and the types of violations to which such considerations were applied. The particular patterns of assessment characteristic of large-scale industrialized societies may thus reflect relatively recently culturally evolved norms rather than inherent features of human moral judgment. (shrink)

Consent in medical practice is a process riddled with layers of complexities. To some extent, this is inevitable given that different medical conditions raise different sets of issues for doctors and patients. Informed consent and risk assessment are highly significant public health issues that have become even more prominent during the course of the Covid-19 pandemic. In this article we identity relevant factors for clinicians to consider when ensuring consent for solid organ transplantation. Consent to undergo solid organ transplantation is (...) more complex than most surgical and other clinical interventions because of the many factors involved, the complexity of the options and the need to balance competing risks. We first out the context in which consent is given by the patient. We then outline the legal principles pertaining to consent in medical practice as it applies in the UK and the implication of recent legal judgments. The third section highlights specific complexities of consent in organ transplantation and identifies relevant factors in determining consent for organ transplantation. The fourth section offers practical recommendations. We propose a novel ‘multi-factor approach’ to informed consent in transplantation which includes understanding risk, effective communication, and robust review processes. Whilst understanding risk and communication are a given, our suggestion is that including review processes into the consent process is essential. By this we specifically mean identifying and creating room for discretion in decision-making to better ensure that informed consent is given in practice. Discretion implies that health care professionals use their judgement to use the legal judgements as guidance rather than prescriptive. Discretion is further defined by identifying the relevant options and scope of clinical and personal factors in specified transplantation decisions. In particular, we also highlight the need to pay attention to the institutional dimension in the consent process. To that end, our recommendations identify a gap in the current approaches to consent. The identification of areas of discretion in decision-making processes is essential for determining when patients need to be involved. In other words, clinicians and healthcare professionals need to consider carefully when there is room for direction and where there is little or no room for exercising discretion. In sum, our proposed approach is a modest contribution to the on-going debate about consent in medicine. (shrink)

This thesis examines some of the legal philosophical issues that are implicated in the problem of outcome luck. In the context of criminal law, the problem asks whether we should hold agents criminally liable for the consequences of their actions given that those consequences are never wholly within anyone’s control. I conclude that outcomes should matter to an agent’s liability and punishment, and I make this argument indirectly by examining some of the foundational questions in legal theory. The (...) thesis begins by considering a current trend in some areas of philosophy. This trend involves attempts to address philosophical problems surrounding luck by doing conceptual analyses on the nature of luck. Chapter 1 critically examines modal theories, which conceptualize luck, as well as the related concept of risk, in terms of close possible worlds rather than probabilistic likelihood. I argue that not only are modal theories uninformative, but conceptual analyses on luck are unhelpful in addressing philosophical questions surrounding luck. Chapter 2 then returns to the traditional notion of luck as lack of control, and focuses on the relationship between luck, risk, and culpability. Some theorists argue that culpability, for any offence, is in part a function of the degree of risk the agent imposes on others. In the context of criminal law, degrees of luck and risk can both be understood in terms of degrees of control, so the suggestion that culpability is a function of the level of risk imposed (and thus of the degree of control an agent exercises) is attractive for insulating culpability judgments from luck. However, I argue that this view is mistaken because culpability is only sensitive to risk in reckless actions, but not in purposeful actions. The problem of outcome luck may raise different questions for reckless actions and purposeful actions. Chapter 3 looks at the mens rea element of criminal attempts, which is crucial for understanding the problem of luck in the context of purposeful actions. I discuss a variation of what are sometimes referred to as impossible attempts, which have helped shape current English law. I argue that the current doctrine is largely correct, and that perhaps with the exception of few paradigm sexual offences, the mens rea element for attempts should require a direct intention as to the consequence element of an offence, and knowledge or belief as to the circumstance element of that offence. Chapters 4 and 5 then look at normative justifications of criminal punishment. In order to understand whether outcomes should matter for punishment, we must first understand whether and why punishment is an appropriate response to criminal offending. Here, I defend a communicative theory, where punishment is a communicative process between the offender, the political community, and the victim. What punishment communicates is the appropriate degree of censure that is warranted in response to the offender’s wrongdoing. And in doing this, it publicly recognizes the wrong that has been committed by the offender. Chapter 4 offers a detailed explanation of this account, and argues that the political community’s recognition of wrongdoing is a valuable aim of communication. Chapter 5 then takes up a crucial challenge against communicative theories of punishment, which is that such theories fail to take crime prevention seriously. Against this criticism, I will show that general prevention can in fact be an essential part of communicative punishment. And I will show that it is specifically the political community’s recognition of wrongdoing that entails punishment’s preventive aims. (shrink)

This book provides a detailed account of the role of property in German Idealism. It puts the concept of property in the center of the philosophical systems of Kant, Fichte, and Hegel and shows how property remains tied to their conceptions of freedom, right, and recognition. The book begins with a critical genealogy of the concept of property in modern legal philosophy, followed by a reconstruction of the theory of property in Kant's Doctrine of Right, Fichte's Foundations of Natural (...) Right, and Hegel's Jena Realphilosophie. By turning to the tradition of German Rechtsphilosophie, as opposed to the more standard libertarian and utilitarian frameworks of property, it explores the metaphysical, normative, political, and material questions that make property intelligible as a social relation. The book formulates a normative theory of property rooted in practical reason, mutual recognition, and social freedom. This relational theory of property, inspired by German Idealism, brings a fresh angle to contemporary property theory. Additionally, it provides crucial philosophical background to 19th century debates on private property, inequality, labor, socialism, capitalism, and the state. The Concept of Property in Kant, Fichte, and Hegel will appeal to scholars and advanced students interested in 19th Century German philosophy, social and political philosophy, philosophy of law, political theory, and political economy. (shrink)

Many legal theorists see legal judgment as a largely professional or technical task. This is not how law sees itself. When looked at from the perspective of the engaged judge, law requires from us that we arrive at a certain internal governance of our thoughts and emotions. Legal scholarship and legal procedure tell us that law creates true reasons that override other, personal, reasons, even those of the utmost importance to us. A philosophical understanding (...) of law requires a distinct argument that explains how such overriding reasons can be associated with the law and how there can be a personal duty to adapt our reasoning when we make authoritative legal judgments in order to change the lives of others. The philosophy of law needs to explain how legal judgment can be a form of self-mastery. (shrink)

Reason and World, a collection of lectures and essays, ranges in terms of the date of authorship from a lecture on Heidegger published while Marx was at the New School for Social Research to his Inaugural Lecture upon succession to Heidegger’s chair in Freiburg/br. to the Woodward Lecture at Yale in 1970. Although some of the papers were delivered in English, others are appearing here in English translation for the first time. The papers are reflections on German Idealism, Husserl, and (...) Heidegger. They are not arranged chronologically but rather in terms of the history of philosophy, yet their order is not meant merely to reflect this history. What is at issue is rather what Marx, playing on Hegel’s phrase, believes to be the contemporary Bedürfnis der Philosophie. The subject of the initial paper is what constitutes this requirement or need for Hegel and how the Differenzschrift is crucial for an understanding of German Idealism. In a similar fashion, Marx holds that contemporary philosophy must come to terms with the requirement of its time. Through reflection of philosophy since Hegel, the contemporary period is depicted as one of transition. The need is to secure "the older thought in its domain" and to legitimize that thought in terms of the questions it asked while still remaining open for a new and different type of philosophy. The fact that the contemporary period is to be understood as one of transition finds expression in the sub-title of the book itself: Between Tradition and Another Beginning. Those two philosophical issues which Marx believes respectively to be the basis for the tradition and the other beginning are reflected by the title: Reason and World. This new beginning and the emergence of the world as a focal philosophical concern represent none other than the overcoming of tradition with its presuppositions of telos and logos. In his analyses of Heidegger, Marx discloses the world to be, in the last instance, the crucial problem of contemporary philosophy in its turn towards ateleological and pre-logical experience. Implicitly, the tradition was for him already called into question by Husserl insofar as the lifeworld together with its possible salutary effect on Western man became the subject of Husserl’s later philosophy. In this book Marx pursues the theme he first enunciated in Heidegger and the Tradition. In my opinion, however, the title of the present work might have been more accurately Reason, Language, and World. For, as Marx seeks to establish, the transition from traditional philosophy is characterized simultaneously by a change in our understanding of language. According to his interpretation of Hegel, Hegel thought of language as a "servant of logos"; on the other hand, contemporary philosophy "attributes power to language in the same measure as it denies it to logos." The question is, then, about the role of language in the emergence of world. In place of reason is the problem of the world and of the possibility of a poetic dwelling in it. The purpose of historical studies is to show via negativa the difference between the tradition and the other beginning proclaimed by Heidegger. In the latter regard, Marx contents himself with an immanent critique and asks simply whether Heidegger’s thought "has been conceived consistently and whether it has been thought through to the end." To be sure, this work is a significant contribution to the literature on Heidegger and its importance in this respect cannot be overlooked. On the other hand, the difficulty of the book lies precisely in its method. Heidegger’s claim for another beginning is itself never evaluated. Marx underscores the point that, if Heidegger is correct, traditional criteria are not applicable to the thought required by another beginning. We are left in the dilemma of simply being or not being Heideggerians. For those who are not, the only insight we gain is through a via negativa. Even if Heidegger’s thought should prove to be consistent and consequential, this fact would not suffice to establish its validity. And what are these if not traditional criteria?—A. G. (shrink)

The debate between Jurgen Habermas and Charles Taylor is reflective of the enduring conflict between liberal philosophy with its emphasis upon freedom, equality, and legal rights, and Aristotelianism with its accent upon the cultivation of virtue, personal responsibility and shared notions of the Good. Though grounded in opposite ends of the philosophical spectrum, both men remain critical of the burgeoning effects of instrumental rationality and the social atomization and anomie it continues to generate; both understand the extent to which (...) the self is a social construct and the role of interpersonal intersubjectivity in the development of their individual and collective identities; both argue for the centrality of certain goods in maintaining a minimal degree of social cohesion; and both affirm that the crucial feature of human life is communication and its dialogical character. ;To overcome the adverse manifestations of our positivistic ethos with its over-reliance upon purposive-instrumental reason, each has responded with a countervailing notion of rationality---"phronesis" or Aristotelian practical reason for Taylor and "communicative reason" for Habermas. Each's choice of reason has led to profound differences in their respective notions of the self as well as fundamental incongruities in their moral and political philosophies. In the interest of preserving the autonomy and integrity of the individual while yet affirming universal justice, Habermas argues for the formalism of a "proceduralistic" ethics. Taylor, on the other hand, advocates a "substantialist" one, a communal ethics that arises from out of people's deepest moral intuitions; an ethics bound up with historical values and ideals that stresses the cultivation of virtue and shared notions of the common good. ;I argue that although Habermas's "communicative action" with its focus upon intersubjective communication helps to bridge the competing philosophies of communitarianism and classical liberalism, a basic incommensurability still persists. However, rather than being mutually exclusive, there needs to be a creative, dialectical tension maintained between them whereby each continues to inform and influence the other. In this way, a postmodern ethics rooted in dialogue and communication can be constructed which maintains people's integrity and autonomy while similarly addressing their multiple needs and concerns, but also an ethics grounded in one's deepest moral intuitions which remains sensitive to the concrete, historical, and particularistic distinctions which differentiate their identities. (shrink)

The use of evidence to resolve uncertainties is key to many endeavours, most conspicuously science and law. Despite this, the logic of uncertainty is seldom taught explicitly, and often seems misunderstood. Traditional educational practice even fails to encourage students to identify uncertainty when they express knowledge, though mark schemes that reward the identification of reliable and uncertain responses have long been shown to encourage more insightful understanding. In our information-rich society the ability to identify uncertainty is often more (...) important than the possession of knowledge itself. In both science and law there are fundamentally different kinds of uncertainty at issue. There is uncertainty whether a particular hypothesis is correct, and there is uncertainty about observable data that may be generated if a particular hypothesis is correct. Both are expressed in terms of probabilities. Each has its own domain of application and its own logic, but the inter-relationship is complex and sometimes misunderstood. Hypothesis probabilities are always open to error through possible failure to take account of realistic alternatives, while the proper inferences that can be drawn from data probabilities (often in the context of significance testing) are quite limited and easily over-interpreted. When considering these two kinds of probability in a court of law it is possible to interpret the phrase 'reasonable doubt' in different ways. It can be seen as addressing data uncertainty: whether such incriminating evidence might with reasonable probability arise to confront an innocent person. Or (the more conventional view) it can be seen as some sort of threshold level on the probability that the defendant is guilty (a hypothesis probability). Each typically involves elements of subjective judgement, but fewer issues and uncertainties arise when considering the data probability and it is argued that this is often the more critical and proper issue for a jury to address. This has particular repercussions for cases involving identification of a suspect through trawl of a DNA or other database. (shrink)