Society has historically not taken a benign view of genetic disease. The laws permitting sterilization of the mentally re tarded~ and those proscribing consanguineous marriages are but two examples. Indeed as far back as the 5th-10th centuries, B.C.E., consanguineous unions were outlawed (Leviticus XVIII, 6). Case law has traditionally tended toward the conservative. It is reactive rather than directive, exerting its influence only after an individual or group has sustained injury and brought suit. In contrast, state legislatures have not (...) been inhibited in enacting statutes. Many of their products can be characterized as hasty, unnecessary, ill-conceived, and based on the heart rather than the head. Moreover the lack of expert consultation sought has also been remarkable. One state legislature, for example, has advocated immunization for sickle cell anemia! Many others have enacted laws for the screening of inborn errors of metabolism, e.g., phenylketon uria, but have poorly defined the lines of responsibility to secure compliance. A spate of specific disease-related bills has emerged in the u.S. Congress, each seeking recognition and appropriations. Sickle cell anemia, hemophilia, Cooley's anemia and Tay-Sachs disease have been among the front-runners for support. Finally, in 1975, Congress has begun to examine an omnibus bill concerning all forms of genetic disease. The bill, termed the National Genetic Diseases Act is, however, still far from being enacted. (shrink)

This essay on choice of law (private international law) appears in the second edition of the Blackwell Companion to Philosophy of Law and Legal Theory, edited by Dennis Patterson. It is a revision of an entry on the same topic in the first edition of the book. The essay focuses on the epic battle over the course of the last century between two very different traditions - classical choice of law, articulated most completely by Joseph Beale in the 1930s, and (...) modernist choice of law, which inspired a massive and still controversial revolution in choice of law thinking. The essay isolates eight distinct jurisprudentially significant premises of classicism, including territorialism, a commitment to a regime of rules, and a conception of law and legal rights that I have called “vestedness.” It then discusses the modernist challenges to most, but significantly not all, of those premises. It also emphasize, however, the degree to which the eight pillars of the classical tradition are actually conceptually independent, and could, at least in principle, be mixed and matched in various combinations and in the service of very different account of choice of law enterprise. Finally, the essay turns to other debates, both within the classical and modernist traditions separately and transcending the differences between them. (shrink)

The paper examines the natural law tradition in ethics and legal theory. This tradition is shown to address two questions. The first question is to do with the nature of law, and the kind of human capacity that is subject to legal direction. Is law directive of the voluntary—of what is subject to the will, or what can be done or refrained from on the basis of a decision so to do? Or is law directive of some other kind of (...) capacity? The second question is about the nature of ethical normativity, and the relation within normativity of its directive and appraisive aspects. Is direction primary, and appraisal to be explained in terms of a theory of direction; or must a theory of ethical direction be based on a theory of ethical appraisal? Both issues are introduced by reference to Hume's ethical theory, which raises them in a particularly sharp form. The natural law tradition, in the form it reached by the early modern period, is shown to combine giving a primacy to the appraisive in normative theory, with, in legal theory, a detachment of law from any exclusive tie to the direction of the voluntary. At the heart of the theory of natural law is the idea of law as a distinctive form of normativity directive of a capacity not for voluntariness, but for self-determination. Combined with a view of the state not just as a coordinative authority but as a coercive teacher, this led to a distinctive and highly controversial view of the scope of positive law. The paper ends with Hobbes's sharp opposition to this view of positive law—an opposition that focused, in particular, on the coercive legal direction of belief. (shrink)

ABSTRACTThis article stages an encounter between Habermas and Deleuze on law, rights, and adjudication. Most of the article is spent developing Habermas’s concept of adjudication as the application of communicatively generated norms. This application, I argue, involves a complex temporality that is at once retrospective and non-creative. Deleuze is used to critique this concept of adjudication in favor of one based on concrete situations and the creation of new problems. In so doing, I will develop Deleuze’s notorious, (...) and notoriously hostile, remarks on human rights and philosophies of communication by relating them to discourse ethics and to the positive conception of law and judgment that can be drawn from his work. (shrink)

This book explores the relevance of virtue theory to law from a variety of perspectives. The concept of virtue is central in both contemporary ethics and epistemology. In contrast, in law, there has not been a comparable trend toward explaining normativity on the model of virtue theory. In the last few years, however, there has been an increasing interest in virtue theory among legal scholars. 'Virtue jurisprudence' has emerged as a serious candidate for a theory of law and adjudication. (...) Advocates of virtue jurisprudence put primary emphasis on aretaic concepts rather than on duties or consequences. Aretaic concepts are, on this view, crucial for explaining law and adjudication. This book is a collection of essays examining the role of virtue in general jurisprudence as well as in specific areas of the law. Part I puts together a number of papers discussing various philosophical aspects of an approach to law and adjudication based on the virtues. Part II discusses the relationship between law, virtue and character development, with some of the essays selected analysing this relationship by combining both eastern perspectives on virtue and character with western approaches. Parts III and IV examine problems of substantive areas of law, more specifically, criminal law and evidence law, from within a virtue-based framework. Last, Part V discusses the relevance of empathy to our understanding of justice and legal morality. (shrink)

In this paper I argue that differences between the ‘new moral science’ of the seventeenth century and scholastic natural law theory originated primarily from the skeptical challenge the former had to face. Pufendorf’s project of a scientia practica universalis is the paramount expression of an anti-skeptical moral science, a ‘science’ that is both explanatory and normative, but also anti-dogmatic insofar as it tries to base its laws on those basic phenomena of human life which, supposedly, are immune to skeptical doubt. (...) The main scholastic legacy to the new moral science is the dichotomy between an ‘intellectualist’ and a ‘voluntarist’ view of natural law (or between lex immanens and lex imposita). Voluntarism lies at the basis of both theological views, such as Calvinism, and political views, such as those of Hobbes and Locke. The need to counterbalance the undesirable implications of extreme voluntarism may account for much of the developments in ethics and politics during the seventeenth and eighteenth centuries.Scottish natural jurisprudence, which tried to find a middle way between skepticism and extreme voluntarism, is less secular and more empirical than received wisdom admits. There emerged, as one of its ‘accidental’ outcomes, a systematic, self-contained and empirical economic theory from the search for an empirically based normative theory of social life. The basic assumption of such a theory, namely, the notion of societal laws as embedded in trans-individual mechanisms, derives from the voluntarist view of natural law as ‘imposed’ law.Later discussions of social issues in terms of ‘economic’ and ‘ethical’ reasons originated partly from a misreading ofthe Scottish natural jurisprudential framework of economic theory. Starting with this reconstruction, I try to shed some light on recent discussions about the role of ethics in economics. (shrink)

Liberal political theory acknowledges the interdependence of the wellbeing of individuals and the flourishing of the cultural groups to which they belong. Consequently, many liberal political philosophers have proposed policies and laws aimed at multicultural accommodation. That is, policies and laws aimed at assisting communities to preserve their cultural values and practices, and at allowing them greater autonomy and self-government. However, certain religious and cultural groups hold beliefs, values, and practices that are oppressive and discriminatory against some of their own (...) members. Accommodating such groups may contribute to the discrimination and oppression. This question of “minorities within minorities” poses a real dilemma for liberal political philosophy. In this Paper I focus on certain cases that fall under the “minorities within minorities” framework that raise particularly complicated theoretical considerations. These are the cases where the demands for equal treatment are raised not by the state or by outsiders, but by disadvantaged individuals and groups within a community, who base their claim for greater equality not on the superiority of liberal values over the values of their culture but rather on an alternative, competing, interpretation of the values of their culture. I suggest that strong normative considerations support the view that the liberal state should assist challenges by marginalized individuals within communities to reinterpret cultural values and traditions in ways more favorable to them. (shrink)

This paper contrasts conceptions of global distributive justice focused on natural resources with human rights–based approach. To emphasize the advantages of the latter, the paper analyzes three areas: (1) the methodology of normative theorizing about natural resources, (2) the category of natural resources, and (3) the view of the system of sovereignty over natural resources. Concerning the first, I argue that global justice conceptions misconstrue the claims made to natural resources and offer conceptions which are practically unfeasible. Concerning the (...) second, I show that contemporary philosophy of justice downplays the plurality of meanings resources have for collectives and argue that conflicts over natural resources can best be accounted for using human rights. Finally, the paper looks at sovereignty over natural resources and argues that rather than dismissing it as unjustifiable on moral grounds, it should be reformed in line with valid principles of international law, most importantly with human rights. (shrink)

The paper explores the role and meaning of maṣlaḥa and its possible appropriation in the field of Islamic legal and economic thought, as laid down by various medieval and contemporary Muslim scholars. Questions that are pertinent to the research are the following: how has maṣlaḥa been incorporated in legal reasoning and what kind of meaning does it convey; what type of economic reading does it presuppose; do ethics, law, and scriptural sources play equally important role as reference in developing the (...) concept in economic terms, are some of the questions that this paper will try to provide answer to. Further, as there is a tendency to believe that Islamic economic thought cannot be equated only with legal and juridical underpinnings, it is pertinent to pose a question if economic ideas have flourished independently from its legal framework. Maṣlaḥa in its capacity has always remained part and parcel of Islamic legal theory, and has been rarely addressed within the frame of economic thought; therefore a new reading is required to deal with the position of economic teachings within Islamic tradition. The paper consists of three sections, whereby the contributions made by Muslim medieval scholars on Islamic economics will be presented. The first chapter provides a historical overview of Islamic law and the concept of maṣlaḥa in relation to the field of Islamic economics, including Abu Hamid al-Ghazali’s monumental Iḥya ‘ulūm al dīn, which presents a milestone in converging Sufi ethical teachings of Islam in accordance with the legal methodology of Islamic law. The second part aims to discern and examine the economic jurisprudence and economic theory in Islam as it is understood by some of the mainstream theoreticians of Islamic studies, advocating the view that Islamic economics is inextricably related to the gist of Islamic legal reasoning. In this section the ideas of Muhammad Baqr al-Sadr will be presented as he proposes a new reading of Islamic economics as a doctrine and not a science. The third part questions Islamic legal establishment and its normativity, the claim that legal norms have always been part of the Islamic economic reasoning. This claim rests upon the idea that Islamic legal patterns were also socially constructed, including some aspects of Islamic economic reasoning. Concluding remarks will draw upon the idea that despite the fact that Islamic legal and economic literature are based upon the religious scriptures of Islam, the Qur’an and Tradition, it is more appropriate to claim that they rest upon the ethical cosmology that surpasses purely theological concerns. (shrink)

Human rights in Islam is a complex issue on which influential Muslims have expressed diverse perspectives. This article identifies the different views held by several scholars, and examines the way in which those views are reflected or contested in contemporary Islamic discourses and particularly the discourses of Saudi scholars. It also argues that different opinions are not necessarily based on a specific Islamic sect but on the perception of international norms and on the readings and interpretation of Islamic texts as (...) well. (shrink)

In this paper I argue that the rationality of law and legal decision making would be enhanced by a systematic attempt to recognize and respond to the implications of empirical uncertainty for policy making and decision making. Admission of uncertainty about the accuracy of facts and the validity of assumptions relied on to make inferences of fact is commonly avoided in law because it raises the spectre of paralysis of the capacity to decide issues authoritatively. The roots of this short-sighted (...) view are found in primitive mechanical models of relationships in the empirical and social world – those of objective causality and determinism. Insofar as it is believed that if we had sufficient data a clear and unequivocal answer would be available to each question, admission of uncertainty is seen as a sign of insufficiency, incompetence, impotence, and is avoided whenever a decision that must be seen to be based on valid reasons, cannot be avoided. Avoidance of some decisions, duplicity in others, is the result. -/- Decision-making must be restructured to recognize the provisional and context-bound validity and relevance of the models we use to conceptualize and order our understanding of phenomena, and to utilize this awareness as an instrument in the production of legal policies and decisions that will be authoritative precisely because they are honestly accurate and socially responsible. The paper makes a start on such a re-structuring of the legal process by exploring the implications of the observation that if law is to be “just”: 1) legal policy must be based on accurate information and rationally related to social goals; and 2) decisions applying policy to individual fact situations must be based on assumptions that are both relevant and accurate. -/- Reasons for determinations of fact must be given, otherwise the presumption that the trier of fact is “reasonable” is an unconditional licence to use private modes of logic and theories of social and natural science. What is not disclosed cannot be challenged on grounds of invalidity or irrelevance. -/- Use of “objective validity” as a standard to evaluate conclusions made by the trier of fact in contentious cases would only serve to beg all important questions by concealing: 1) fundamental normative conflict, and 2) the limited nature and applicability of many validity claims. -/- Our use of the phrases “undue risk,” “public interest,” “reasonable,” and “necessary,” reflects the weight we choose to give conflicting social values and goals when we must make decisions in relative ignorance of all the consequences. “Objective criteria” are of limited utility in legal decision-making because their social meaning is derivative. Policy generation in the absence of any coherent conceptual-normative framework, use of vague terminology in legislation stating policy, and the absence of rational means to distinguish between individual cases to which decision-makers are required by law to apply policy, make it inevitable that many legal “decisions” made in the guise of determinations of objective fact, are charades, an arbitrary, capricious, intuitive, subjective (and thus private) use of public decision-making power. -/- Law must alter its aspirations and recognize that rational decision-making is a process that can occur only within parameters set by present knowledge and societal preference structures. Only by working with the constraints imposed by these parameters is it possible to achieve “just” decisions. Where no rational basis for differentiating cases exists, “individualized justice” must be avoided and public policy articulated in law applied uniformly to all cases in a class. The terms “reasonable” and “necessary,” used to describe policy and its consequences for specific cases, must be understood to represent provisional societal assessments, attempts to implement societal preference structures in the face of limited knowledge. Heightened awareness of the limited nature of our knowledge can only result in legal policies that have a more explicit normative basis. -/- The volume is is published with an introduction by Michael D. Bayles. It is available in hardback, paperback, and as an ebook. (shrink)

Abstract Richard Posner's Law, Pragmatism, and Democracy urges that political and legal decision makers should be guided by what he calls ?everyday pragmatism,? rather than by ?abstract? moral theory. He links his conception of pragmatic government to Sclmmpeter's unromantic view of democracy. Posner argues that judicial review should be based on a combination of pragmatism and adherence to this limited conception of democracy, rather than sticking closely to ?formalist? theories of adjudication, which demand strict adherence to traditional legal (...) norms. However, Posner's consequentialist pragmatism fails to provide an adequate guide to judicial decision making, because it does not give us any criterion for deciding which consequences are desirable. His Schumpeterian theory of democracy, too, is problematic because it does not sufficiently consider the shortcomings exposed in recent scholarship in political science and economics. (shrink)

This work, translated from the German, is divided into nine chapters with a preface plus a very helpful introduction by the translator. There is also a postscript by Habermas, as well as a reprinting of two earlier papers on related topics. The book is intended as a contribution to contemporary political philosophy, and, as such, Habermas accepts certain assumptions in advance and does not attempt to argue for them at any length. The first is the “linguistic turn” in philosophy, the (...) antirealist view that all knowledge is in some sense constructed by human culture and language. The second is the failure of natural law theory. Hence, his task is to engage in political philosophy in a “post-metaphysical age,” an age which requires a “procedural reason... that puts itself on trial”. Against this background, the political philosopher must avoid the twin pitfalls of subordinating law to a transcendentally grounded morality and of identifying law with a particular tradition’s view of the good life. (shrink)

This article takes a Deleuzian view toward diversity, law and justice. It makes use of the insights developed in his two books on cinema comparing an “organic regime” to a “crystalline regime.” The former will be seen as the image of thought and regime of signs of traditional criminal justice practices (due process model, crime control model, family model, actuarial justice, restorative justice); the latter, the basis of a transformative justice (social justice) and the regime of signs that are (...) its constitutive elements. Deleuze’s views on semiotics can be fruitfully contrasted with Lacan’s. I want to indicate how Jacques Lacan’s psychoanalytic semiotics, on the descriptive level, quite accurately describes the connection of desire based on lack with capital logic, whereas, Deleuze provides an alternative ontology (desire based on production) and develops suggestions for privileging a becoming rather than a being. His is a call for ongoing transformations. I want to indicate how diversity, transformation and tolerance can have better developments in a Deleuzian model of the crystalline regime. This entails alternative discursive subject positions and regimes of signs within which constructions of reality by diverse peoples find wider expression. Accordingly, this is about better approximations to social justice. (shrink)

At the same time as the modern idea of the state was taking shape, Hugo Grotius , Thomas Hobbes and Samuel Pufendorf formulated three distinctive foundational approaches to international order and law beyond the state. They differed in their views of obligation in the state of nature , in the extent to which they regarded these sovereign states as analogous to individuals in the state of nature, and in the effects they attributed to commerce as a driver of sociability and (...) of norm-structured interactions not dependent on an overarching state. Each built on shared Roman and sixteenth-century foundations . Section II argues: 1) that Grotius's natural law was not simply an anti-skeptical construction based on self-preservation , but continued a Roman legal tradition; 2) that Hobbes's account of natural law beyond the state was essentially prudential, not moral ; and 3) that commerce as a driver of social and moral order had a substantial and under-appreciated impact on international legal order. Each contributed to the thought of later writers such as Emer de Vattel , David Hume , and Adam Smith , and eventually to the empirical legal methodologies of Jeremy Bentham and Georg Friedrich von Martens. (shrink)

The relationship between law and morality is a topic which receives special importance and attention, especially in "liberal democracies" in which the law is supposed to regulate highly pluralized and fragmented societies. Under conditions of plurality of values, many social forces and legal theories require a certain kind of neutrality from the legal system, a means of compatibility of the many "world views" and "moral systems" that are present within the same social space. Such a conciliating commitment sounds particularly relevant (...) in times of the doctrinal ubiquity of ideas such as "peace based on human rights". This was the title of the 28th World Congress of the IVR in Lisbon, with the special workshop "Law and Morals" on which this book is based. It is divided into four parts: "Law and Practical Reason", "Conceptual Approaches on Law and Morals", "Legal versus Moral Normativity", and "Morals and Legal Positivism". (shrink)

Comparative political theory is at best an embryonic and marginalized endeavor. As practiced in most Western universities, the study of political theory generally involves a rehearsal of the canon of Western political thought from Plato to Marx. Only rarely are practitioners of political thought willing (and professionally encouraged) to transgress the canon and thereby the cultural boundaries of North America and Europe in the direction of genuine comparative investigation. Border Crossings presents an effort to remedy this situation, fully launching a (...) new era in political theory. Thirteen scholars from around the world examine the various political traditions of West, South, and East Asia and engage in a reflective cross-cultural discussion that belies the assumptions of an Asian "essence" and of an unbridgeable gulf between West and non-West. The denial of essential differences does not, however, amount to an endorsement of essential sameness. As viewed and as practiced by contributors to this ground-breaking volume, comparative political theorizing must steer a course between uniformity and radical separation--this is the path of "border crossings.". (shrink)

What is pedagogy, exactly? Merriam-Webster defines it simply as “the art, science, or profession of teaching.” In contemporary academic discourse, however, pedagogy is generally left undefined — with its apparent implicit meanings ranging anywhere from a specific “model for teaching” (e.g., behaviorist or progressivist instruction) to a broadly political philosophy of education in general (most famously, a “pedagogy of the oppressed”). In this paper, Norm Friesen and Hanno Su follow the Continental pedagogical tradition in giving pedagogy a general but explicit (...) definition. They do so by looking at how pedagogy arises both in everyday life and in school as unavoidably ethical activity undertaken primarily for the sake of the young person or child. Such activities, the authors maintain, are structured not so much by processes, methods, and outcomes, but by irresolvable oppositions and the tensions between them. They illustrate this inductively through a series of images and examples — moving gradually from ones involving parenting and early childhood to ones from elementary and secondary schooling. In this way, Friesen and Su show that pedagogy is not so much one or more ideologically focused or evidence-based instructional or psychological approaches to be mastered by a professional or teaching specialist. It is instead an independent but ethically informed practical perspective — one that can (and has) been extended to form a distinctively pedagogical theory and discipline. As such, it is something that is not only a part of our everyday life and culture, but arguably of all human cultures. (shrink)

Truth seems to be an indispensable element of authority which presents itself as being based on more than just power and efficiency. In the domain of law,there is not only and primarily the problem of establishing the truth about the facts which are to be judged; there is also the problem of norms—does their authority rest solely on the act of establishing them, or is there “something behind”, a truth which contributes to the strength of law, and which provides legitimacy (...) to both legislator and to the legal norms themselves. In theoretical reflection, the very possibility of talking about true norms or true evaluations is under challenge, and this view dominates in the academic education of lawyers and other professionals. At the basis of this project lies the conviction that the problem of true norms, and the more general problem of the place of truth in law, is worth re-examining. In the course of such a re-examination, it is also worth returning to certain points in the tradition of thinking about the foudations of law. In the tradition recalled by the papers presented here—by both Italian and Polish authors—a prominent place is occupied by Polish thinkers such as Leon Petrażycki, Czesław Znamierowski, and Zygmunt Ziembiński. The book consists of three major parts. The titles—Tradition, Theory, Practice mark important points of reference in the reflection on truth in the context of law. The contributions relate to these points in different degrees, and each, though placed in one of these parts, also refer to the others. (shrink)

Recent theoretical analysis has exhibited a structural ambiguity in the normative foundation of the tort of negligence, namely uncertainty whether liability is based on the breach of a legal duty or on the responsibility for the victim's loss. This normative ambiguity is due to the fact that the European law of extracontractual liability was conceptually framed for purposes totally different from modern ideas of fair distribution of risks that have historically been connected with rights- based conceptions of tort law. From (...) a comparative point of view it becomes apparent thatdf the idea of protecting individual rights by tortious remedies is constitutive for the modern European law of extracontractual liability, although hidden beyond the dominant terminology of duties, breach and wrong. Thus it is submitted that a rights-based analysis of the law of torts offers a significantly better understanding than traditional duty-models can achieve. (shrink)

This essay addresses a version of Jerome Frank’s question – ‘Are Judges Human?’ – asking instead: are human judges necessary? It begins, in section II, by outlining the technological developments which inform the view that they are not and critically evaluates the juristic position that seemingly endorses it. That position is labelled ‘technological evangelism’ and it consists of three claims about law and adjudication: the certainty, determinacy and partiality claims. Section III shows that these three claims are utterly (...) incompatible with what it calls standard and non-standard views of adjudication and law, while section IV considers some ways in which proponents of technological evangelism might try to reject standard and non-standard views. That section concludes that no plausible efforts have so far been made by technological evangelists to reject standard and non-standard views, and that those views therefore maintain their existing explanatory and normative priority. The overall conclusion of the essay is that technological evangelism is not a critical explanatory and normative engagement with law and adjudication as we know them, but an effort to replace them: not a game-changing intervention, but a game-ending one. (shrink)

This volume critically discusses the relationship between democracy and constitutionalism. It does so with a view to respond to objections raised by legal and political philosophers who are sceptical of judicial review based on the assumption that judicial review is an undemocratic institution. The book builds on earlier literature on the moral justification of the authority of constitutional courts, and on the current attempts to develop a system on "weak judicial review". Although different in their approach, the chapters all (...) focus on devising institutions, procedures and, in a more abstract way, normative conceptions to democratize constitutional law. These democratizing strategies may vary from a radical objection to the institution of judicial review, to a more modest proposal to justify the authority of constitutional courts in their "deliberative performance" or to create constitutional juries that may be more aware of a community's constitutional morality than constitutional courts are. The book connects abstract theoretical discussions about the moral justification of constitutionalism with concrete problems, such as the relation between constitutional adjudication and deliberative democracy, the legitimacy of judicial review in international institutions, the need to create new institutions to democratize constitutionalism, the connections between philosophical conceptions and constitutional practices, the judicial review of constitutional amendments, and the criticism on strong judicial review. (shrink)

In this article, responding to assertions that the principle of double effect has no place in legal analysis, I explore the overlap between double effect and negligence analysis. In both, questions of culpability arise in situations where a person acts with no intent to cause harm but where reasonable foreseeability of unintended harm exists. Under both analyses, the determination of whether such conduct is permissible involves a reasonability test that balances that foreseeable harm against the good intended by the actor's (...) conduct. In both, absent a finding that the foreseeable harm is unreasonable in light of that intended good, no liability will be imposed upon the actor. Even conceding, however, such general similarity between double effect and negligence analysis - disagreement over the proper interpretation of the reasonability criterion at play in negligence poses an additional challenge for the attempt to correlate negligence with double effect. Economic efficiency interpretations of negligence, for example, purportedly based on the Learned Hand Formula and the RESTATEMENT (SECOND) OF THE LAW OF TORTS, propose that culpability depends upon a utilitarian balancing of good effects of conduct (utility) versus its harmful foreseeable consequences (magnitude of risk of injury). Based on such an interpretation of negligence, however, contrasts between actors' states of mind, and normative differences between kinds of goods and harms, ultimately fade into the background and become irrelevant as essential conditions for properly assessing liability. This article elaborates and defends the view that double effect analysis lies at the heart of negligence theory. Part I elucidates in more detail the principle of double effect and describes its prima facie operation in negligence analysis. Part II considers and rejects the economic efficiency interpretation that has been offered as a theory of negligence, overcoming the challenge that such an interpretation presents for the effort to locate double effect analysis in the law. Part III illustrates and confirms the overlap between double effect and negligence by consideration of a series of case applications. The Article proposes that the weighing of conflicting values in double effect analysis and negligence is not achieved - as proposed by law and economics theory with respect to negligence - by imposing a consequentialist-utilitarian reduction of all value to a single concept of good and eliminating the relevance of traditional state of mind distinctions between intention and foreseeability. Instead, each mode of analysis recognizes that distinct culpability determinations flow naturally and plausibly from an appreciation of the traditional legal distinctions made between various types of goods and harms, and upon whether such goods and harms come about as result of an actor's intention or mere foreseeability. Keywords: Double effect, negligence, intention, foreseeability, choice, law and economics, utilitarianism, consequentialism, weighing of values. (shrink)

This dissertation serves as a monograph on the moral and social implications of a utilitarian-based system of health care which recognizes and takes rights seriously. Though the design and claims are stated primarily in terms of utilitarianism, admittedly, there are elements of communitarian, deontological, and rights theories which have been incorporated. ;Such a commingling of theoretical elements, under the claim of being utilitarian, may seem ambiguous, however, it is my contention that such inclusions only serve to enhance the plausible nature (...) of this sphere-specific form of utilitarianism and the adjudication of rights. Additionally, though there are other components of theories included, the basis of utilitarianism still serves as the foundation by which all other actions, decisions, and values are judged. ;While it is true that utilitarianism offers a standard for all areas of life, the idea of examining a sphere or environment of utility, in this case, the utility associated with the sphere of health care, allows for the good to be clearly defined. One primary weakness of classical utilitarianism is that it ignores, or at least does not do full justice to, the notion of personal responsibility or sense of obligation. If the only duty or requirement is to produce some obscure sense of the "greatest good" or the "greatest happiness," the question of how the good is identified and who is to have the good remains unanswered by the traditional utilitarian construct. ;The classical view of utilitarianism is too broad in its scope of defining "the greatest good" or realm of value. But to narrow the area of value to a particular sphere or environment allows for the utility and associated rights in question to be identified, the value measured, and the success more easily interpreted. ;While maintaining the general premise of utilitarianism, that is, "the greatest good for the greatest number," the notion is not from some nebulous concept or subjective position about life or feelings in general. This sphere-specific position also acknowledges and defines the "rights" of the individual within the particular sphere being considered, in this case, the sphere of health care. (shrink)

An important part of the legal domain has to do with rule-governed conduct, and is expressed by the use of notions such as norm, obligation, duty, and right. These require us to acknowledge the normative dimension of law. Normativity is, accordingly, to be regarded as a central feature of law lying at the heart of any comprehensive legal-theoretical project. The essays collected in this book are meant to further our understanding of the normativity of law. More specifically, the book stages (...) a thorough discussion of legal normativity as approached from three strands of legal thought that are particularly influential and which play a key role in shaping debates on the normative dimension of law: the theory of planning agency, legal conventionalism and the constitutivist approach. While the essays presented here do not aspire to give an exhaustive picture of these debates--an aspiration that would be, by its very nature, unrealistic--they do provide the reader with some authoritative statements of some widely discussed families of views of legal normativity. In pursuing this objective, these essays also encourage a dialogue between different traditions of study of legal normativity, stimulating those who would not otherwise look outside their tradition of thought to engage with new ideas and, ultimately, to arrive at a more comprehensive account of the normativity of law.--Provided by publisher. (shrink)

The book comprises contemporary legal theory pertaining to Democratic States based on the Rule of Law from the perspective of general principles of law. It explains in detail, theoretically and based on the specific case law, the phenomenon of general principles of law - as a source of law and directly applicable legal norms. It is a work of legal theory, legal philosophy, and legal method, but it will also assist scholars and practitioners in the transitional justice field as it (...) shows how this theory of general principles of law has assisted Latvia to move away from the socialist legal tradition. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Religion and Science: Nishitani’s View of Nihility and Emptiness–A Pure Land Buddhist CritiqueRyusei TakedaIn general, philosophical critique of Nishida, Tanabe, and Nishitani, the so-called Kyoto school, has been mainly conducted from a Zen Buddhist perspective. One should not, however, overlook the fact that a profound regard for the philosophical aspects of Pure Land Buddhist thought, another major stream of Mahayana Buddhism, is deeply intertwined in the foundation of (...) their philosophies. But the ways in which they interpret it and the position they give it within their philosophical systems are not the same: they have taken different forms, often giving rise to original terminology, in accord with each thinker’s metaphysical speculation.As Alfred N. Whitehead critically argues in his Religion in the Making, the fundamental reason for the decay of both Buddhism and Christianity is that “each religion has unduly sheltered itself from the other. The self-sufficient pedantry of learning and the confidence of ignorant zealots have combined to shut up each religion in its own forms of thought. Instead of looking to each other for deeper meanings, they have remained self-satisfied and unfertilized.” Further, “both have suffered from the rise of the third tradition, which is science, because neither of them had retained the requisite flexibility of adaptation.” 1In this contemporary situation, the philosophies of Nishida, Tanabe, and Nishitani, in which the issue of religion and science has been brought into fundamental question and examined on the dimension of origin of their development, have extremely important implications for the critical interpretation of Pure Land Buddhist doctrines, particularly in the postmodern world. 2There are two points I want to make in this paper. First, the fundamental structure of Pure Land Buddhism, in a way an antipode to Zen, will be examined in light of Nishitani’s metaphysical analysis of the relationship between human experience and the laws of nature, particularly bringing into focus his existential realization of ‘nihility.’And second, I want to challenge Nishitani’s understanding of ‘emptiness’ from my perspective as a Pure Land Buddhist, and also to uncover some fundamental [End Page 155] problems underlying his view of ‘emptiness’ by attempting to relate it to Nagarjuna’s negation of ‘substance’ in his concept of ‘non-self being,’ or ‘nih-svabhava.’ 3What is Religion for Nishida, Tanabe, and Nishitani?Before getting into those two topics, I want to make a rough sketch indicating about where Nishida, Tanabe, and Nishitani see that religious experience is to be truly realized.The starting point of Nishida’s understanding of religion is found in his argument that “it is on the ground of fact that religion ought to be considered.” The fact of religious experience is in his view none other than self-awareness of ‘absolute nothingness,’ which is also the foundation of what we consider as objective knowledge. The self-awareness manifests itself in the midst of such fact and serves to reveal that fact. He argues that the ultimate goal of Mahayana Buddhism is to penetrate into the depth of this fact.In Tanabe’s philosophy, one’s resurrection and return to the world (genso) and self-renunciation through ‘metanoetics’ (zangedo), a philosophy of absolute Other-power, are required and witnessed to in order for one to establish a genuine religious standpoint. Neither/nor, instead of both/and, is the only relationship in which the self negates itself by means of contradiction, so that at the same time as the self is extinguished in the negation, the contradiction of that which opposes the self is also extinguished. Converted into the neither/nor relationship, both self and contradiction cease to be contradictory opposites. 4 This is Tanabe’s criticism directed at Nishida’s notion of the self-identity of absolute contradiction. Nothingness can never be intuited as such self-identity. The self-consciousness of nothingness is only in resurrection and return to the world, which is witnessed to through practice based upon faith and performed in obedience to Other-power. 5For Nishitani the question of the essence of religion must be answered through tracing the process of the genuine pursuit of true reality. He attempts to interpret the religious quest... (shrink)

The paper explores the role and meaning of maṣlaḥa and its possible appropriation in the field of Islamic legal and economic thought, as laid down by various medieval and contemporary Muslim scholars. Questions that are pertinent to the research are the following: how has maṣlaḥa been incorporated in legal reasoning and what kind of meaning does it convey; what type of economic reading does it presuppose; do ethics, law, and scriptural sources play equally important role as reference in developing the (...) concept in economic terms, are some of the questions that this paper will try to provide answer to. Further, as there is a tendency to believe that Islamic economic thought cannot be equated only with legal and juridical underpinnings, it is pertinent to pose a question if economic ideas have flourished independently from its legal framework. Maṣlaḥa in its capacity has always remained part and parcel of Islamic legal theory, and has been rarely addressed within the frame of economic thought; therefore a new reading is required to deal with the position of economic teachings within Islamic tradition. The paper consists of three sections, whereby the contributions made by Muslim medieval scholars on Islamic economics will be presented. The first chapter provides a historical overview of Islamic law and the concept of maṣlaḥa in relation to the field of Islamic economics, including Abu Hamid al-Ghazali’s monumental Iḥya ‘ulūm al dīn, which presents a milestone in converging Sufi ethical teachings of Islam in accordance with the legal methodology of Islamic law. The second part aims to discern and examine the economic jurisprudence and economic theory in Islam as it is understood by some of the mainstream theoreticians of Islamic studies, advocating the view that Islamic economics is inextricably related to the gist of Islamic legal reasoning. In this section the ideas of Muhammad Baqr al-Sadr will be presented as he proposes a new reading of Islamic economics as a doctrine and not a science. The third part questions Islamic legal establishment and its normativity, the claim that legal norms have always been part of the Islamic economic reasoning. This claim rests upon the idea that Islamic legal patterns were also socially constructed, including some aspects of Islamic economic reasoning. Concluding remarks will draw upon the idea that despite the fact that Islamic legal and economic literature are based upon the religious scriptures of Islam, the Qur’an and Tradition, it is more appropriate to claim that they rest upon the ethical cosmology that surpasses purely theological concerns. (shrink)

Finnis’s theory of law distinguishes between law in the focal sense and law in the legal sense. Law in the focal sense is law that promotes the common good. Citizens may appeal to considerations of...

In the present essay, I consider the relevance of evolutionary psychology (EP) for legal positivism, addressing the two main traditions in the legal positivist family: (1) the tradition I identify with the works of Hart and Kelsen and characterize as “normativist,” as it tries to describe law as a purely or, at least, as an essentially normative phenomenon, while remaining true to the ideal of scientific objectivity and value-neutrality; (2) the tradition I broadly refer to as “legal realism,” which equates (...) law with adjudication and “legal science” with the task of explaining judicial behaviour. (shrink)

This paper examines recent attempts to defend Rule-Consequentialism against a traditional objection. That objection takes the form of a dilemma, that either Rule-Consequentialism collapses into Act-Consequentialism or it is incoherent. Attempts to avoid this dilemma based on the idea that using RC has better results than using AC are rejected on the grounds that they conflate the ideas of a criterion of rightness and a decision procedure. Other strategies, Brad Hooker's prominent amongst them, involving the thought that RC need contain (...) no overarching concern to maximize the good are acknowledged to avoid the original dilemma, but lead to further problems of motivating and justifying RC in the absence of such a concern. The paper argues that Hooker's attempt to deal with these problems by using a 'Reflective Equilibrium plus method is unsuccessful. (shrink)

In Mengzi 6A4, Gaozi states that “yì 義 (propriety, rightness) is external, not internal.” In 6A5, Meng Jizi says of yì that “...it is on the external, not from the internal.” Their defenses are met with Mengzi’s resistance. What does he perceive and resist in these statements? Focusing on several key passages, I compare six promising interpretations. 6A4 and a relevant part of 2A2 can be rendered comparably sensible under each of the six. However, what Gaozi says in 6A1 clearly (...) is evidence to Mengzi that, of the six views, Gaozi holds three although he does not convey them in his statement. As for Meng Jiz’s defense of his statement, Meng Jizi cites a special occasion where one is required to act one way even though one would feel a different way. Mengzi’s response has been traditionally interpreted as boiling down to a dissenting opinion about empirical psychology, that the agent on that special occasion would in fact feel the same way as they ought to act. But on a more charitable reading, the point Mengzi makes is conceptual: Though the satisfaction of yì may not require that the feeling and the act align perfectly in this case, cases where the alignment obtains are conceptually prior. This not only refutes Meng Jizi’s statement but also enables a more elegant explanation of why the Mengzi rightly has no record of Mengzi affirming that yì is internal. I conclude that 6A5 itself uniquely favors one interpretation, as far as Meng Jizi’s position is concerned: How one feels is irrelevant to whether one satisfies yì. (shrink)

Otfried Höffe is one of the foremost political philosophers in Europe today. In this major work, already a classic in continental Europe, he re-examines philosophical discourse on justice - from Classical Greece to the present day. Höffe confronts what he sees as the two major challenges to any theory of justice: the legal, positivist claim that there are no standards of justice external to legal systems; and the anarchist claim that justice demands the rejection and abolition of all legal and (...) state systems. Höffe sets out to continue the 'philosophical project of modernity', the legitimation of human rights, and their guarantee by the state, while at the same time rehabilitating the classical theory of political justice represented by Plato and Aristotle. He questions the success of the positivists in avoiding extra-legal normative claims, and casts doubt on the plausibility of their criticism of the Natural Law tradition. Most anarchists, he argues, rely on an uncritical assumption that social institutions other than states and legal orders do not coerce. In Höffe's view, some coercion is unavoidable, and the grounds for its justification must be examined. Principles of justice will be those principles which define fundamental rights, and which must be enforced if rights are to be respected. (shrink)

Sexual and reproductive health is a challenge worldwide, and much progress is needed to reach the relevant UN Sustainable Development Goals. This paper presents cross-sectional data collected in Sierra Leone on sexual and gender-based violence, family planning, child, early and forced marriage, and female genital mutilation using an innovative method of measurement: situational judgment tests, as a subset of questions within a larger survey tool. For the SJTs, respondents saw hypothetical scenarios on these themes and had to indicate how they (...) would react. The objective is to give an impression of beliefs and norms on specific behaviors, which provide insights for social and behavior change interventions. Data was collected by enumerators traveling to villages randomly selected in six districts of the country. The sample is composed of 566 respondents. Results show that FGM in particular seem to be a priority topic, in comparison to the other topics for which the norms seem to be stronger against those practices. Age differences emerged and suggest priority groups to be targeted. In terms of validity of the measurement methods, situational judgment test answers correlated positively with other items in the survey, but the magnitude of the association is often small, and sometimes not significant. Thus, more studies are needed to further explore the validity of this measure by comparing against a reference value. Using SJTs could complement other data collection tools to perform community assessment, and orient the direction of the program in its planning phase. (shrink)

This paper aims at clarifying some of the most common issues that legal translators have to face when dealing with the translation of private normative texts, such as contracts or wills, which naturally emerge as the consequence and expression of legal or juristic acts in the scope of private law, in Spanish and English. To comprehend the differences and subtleties regarding legal communication between the common law and the continental law countries (specifically the United States and Spain, respectively), we must (...) unveil some essential clues for their translation and application in the global scope of professional interactions, thus creating a process of inter-legal communication, which takes place through the mutual interpretation and application of two, or more, legal traditions. Through the deployment of a generic or pragmatic analysis at textual or discursive and formal or superficial, strata, of two types of genre within the domain of private law (namely wills and tenancy agreements, or leases) this work aims to prove that both the civil law and the common law private instruments are translatable with respect to each other. An important proviso, however, is that their legal traditions and the genres that constitute the communicative tools of their specialised communities must be duly respected and kept in equilibrium, so that one does not overshadow and obliterate the other. Only in that way can the “convergence” of the two traditions truly enrich and strengthen national and international legal culture. (shrink)

Democratic theory tends to proceed on the assumption that law requires democratic legitimation because it is coercive. However, the claim that law requires democratic legitimation is distinct from claims about the nature of law. This paper takes issue with the notion that law is coercive by an exploration of three distinct understandings of the nature of law: the state-based conception of law, law as the rules of institutionalized normative systems, and law as social norms. Drawing on insights from legal and (...) democratic theory, the paper defends the view that the ‘law’ to which democratic claims apply are the rules of conduct of institutionalized normative systems. Since rules that belong to such systems are found in associations beyond or below the level of the state, the scope of democratic participation is significantly wider than is usually recognized. (shrink)

This article considers current advances in tattooing that are challenging community-held views of authorship and ownership, and the need to address this tension. The key challenge is from AI-generated artworks being used as tattoo designs, but the authorial role of the tattooist is also challenged by body art projects such as tattoo collection. Legal clarity for tattooing is lacking, and in addressing this, this article advocates for an open, community-based form of shared copyright ownership and authorship for projects as tattoo (...) collecting, drawing on Dusollier’s and Mendis’ work. This article contributes to both copyright and cultural heritage legal scholarship, and to tattooing scholarship and the tattooing community. AI-generated art being tattooed on people has not been explored in the literature to date, and this article fills this gap. Furthermore, this article contributes a pilot study of the tattoo community’s views on AI-generated tattoos, which is currently lacking from the scholarly debate on AI-generated art. This article argues that the debate within the tattoo community about AI-generated art being used in tattoos needs to be addressed within the community through agreed extra-legal norms, which may well depart from how copyright law decides to approach AI-generated art globally. This article also asserts that AI should _not_ be regarded as the “author” of tattoo works in the traditional copyright sense, as only a human tattooist can draw from a number of cultural, textual, audiovisual and visual, cultural folklore, history and mythical references in creating their tattoo designs, as well as drawing on the client’s personal stories. This article explores the following: (i) an understanding of tattooing as an artform; (ii) tattoos in UK copyright law; (iii) an exploration of the authorial role of the tattooist within tattooing; (iv) the authorial role of the tattooist within tattoo collecting; (v) AI-generated tattoos—perspectives from the tattoo community, through a pilot study of YouTube videos and viewer comments about this; and (vi) a consideration of whether copyright legal reform is the solution for the tattooing community. (shrink)

The subject “rule”, which is one of the most fundamental issues of the Islamic legal theory (usūl al-fiqh), has been in the center of methodological debates. There is one important term in this regard, which should be studied very carefully: Khiṭāb(speech) of the God. It is because that, especially since the first period of Islam, it has been taken with some significant terms in the field of Kalāmsuch as Husn (pretty; good), Qubh (ugly; evil), and the quality of God’s talk. (...) Yet, adopting this term in the description of the “rule” shows that Fiqh is based on divine inspiration, and it also emphasizes that even though there are some differences in details, wisdom of human being is not ignored when adjudicating. Moreover, it suggests that the validity or methodological accuracy of the “rule” which is adjudicated with ruling case is related to the connection through the term speech or divine inspiration. In this regard, Kalāmdimension of the term and its affect to legal theoretical discussions are very important in terms of historical process of the definition of the “rule” in Islamic law. In this study, I tried to examine whether or not the term “khiṭābof the God” which is used in the definition of the “rule” formed a limitation for consideration of legal evidence in Islamic law and if there is any limitation for the legal evidence regarding being only in the Qur’ān and the Sunnah due to this definition.SummaryThe “hukm (rule, arbritation, judgment, God’s will)”-as the backbone notion in usūl al-fiqhis one of the significant key notions discussed in the legal theory. Specifically, the term “khitabullah” mentioned in the definition of hukmis noteworthy to investigate. Since the early formation period of Islamic law, the term khitabullahhas been embraced along with the theological subjects: “husnand qubuh(the good and evil) and kalām(the attribute of speech to Allah)”. The term “khitabullah” in the definition of hukmemphasizes that indeed the source of fiqhis the revelation (wahy) and also emphasizes that the function of reason (‘aql) is not ignored in the process of adjudication- even if there are some nuances in details.Additionally, it presents that the validity or methodological accuracy of the “rule” which is adjudicated with ruling a case is connected to the term speech (khitāb), or in other words to revelation (wahy).On the whole, in the legal theory, the rule of Sharī‘ah is defined as God’s khitab(the communication of God), which means the demand of God relating to the acts of those who are subject of law or the effect of the khitābon the acts of those persons. Although, in the early formative period various explanations were made about what the rule is, it can be understood that the present definition of hukmbegan to evolve towards the end of the 5thcentury (A. H.). It is clear that al-Ghazālī had an impact on the formation of this definition. It is because al-Ghazālī defined the rule of Sharī‘ahas “the communication from God relating to an act of the person who is the subject of law”. After al-Ghazālī, al-Rādī and al-Baydāwī added to al-Ghazālī’s definition the words “iqtidā and takhyīr” and Ibn Hājib added “wad‘an”. Whereas in the Mutakallimun(theologians) tradition, Ibn Hacib's definition was preferred, Fuqaha(jurists) tradition chose two definitions-resembling each other: “Those coming to exist with the khitāb” and “the effect of God’s khitāb”.Along with al-Ghazālī’s definition, the concept of khitābcarved out a niche for itself in it and became the main element of the definition. It is understood that some discussions in the field of theology, such as husn-qubhand God’s attribute of speech have been effective on the interpretation of the concept of khitāb. The Ash‘arilegal theorists argue that the good and evil are not attributes of the self / the acts, whereas the Maturidi legal theorists argue that the exploration and determination of these attributes is rational and thus, the verdict reached via this rationale is lawful. The Maturidi legal theorists initiated the concept of being subject of law with the concept Sharī‘ah and in the line with this opinion; they defined hukmon the basis of khitāb. On the other hand, the Mutazilites’ claiming the attribute of good and evil are inherent feature of the act, did not define hukmon the basis of the khitābaccording to their theological understanding. The word of khitābassessed with God’s eternal speech (al-kalām al-azalī) has been approached from various aspects: for instance, whether the presence of the addressee is mandatory. The early Asharites scholars (mutaqaddimun), in particular Imam Asharī, did not entitle the eternal speech as khitāb. They consider that the presence of the interlocutor is necessary in the conversion of Kalāminto khitāb. The mutaakhirunAsharites (successors of the early Asharites scholars) did not consider the presence of the interlocutor necessary, thus they viewed the eternal speech as khitāb. The former identification of the hukmwith khitābby the early Ashari legal theorists caused to the problem of whether hukmis adventitious or not. Therefore, this approach was criticised by the Mutazilites. On the other hand, the Maturidi and Mutezilite legal theorists accept that hukmis adventitious; hence they do not consider as a problem naming the eternal speech of God as khitāb.When the historical course is examined, it can be said that one of the important aspects of the development of hukm’s definition is the use of khitāb. Khitābin some cases is used without possessive construction, in other cases it is used with possessive construction with God, or in possessive construction with shar’ or Shāri’. The most important one within these possessive constructions is the notion “khitaballah”. Therefore, it is necessary for khitaballahto be approached from the angle of the legal theory. In comparison to other terms, this notion narrowed the scope of the rule down. In the meanwhile, it raised the question: how the rule deduced via legal evidences can be incorporated in khitāb? As a consequence of this question, some legal theorists, such as Tūfī, proposed another definition by adducing this question.Although it is commonly accepted that the rules deduced via other evidences are within the context of the khitāb, there are also different descriptions about the concept of khitaballah. The rule is not limited to khitaballahin the conception of traditional interpretation accepting the khitābas eternal speech or literal speech (al-kalām al-lafzī). Because either all evidences are within the context of the khitāb,which is the eternal speech or other evidences are within the context of the khitāb,which is the literal speech. Thus, each result coming to exist with the other evidences is part of the Islamic law. But not all of these rules are considered equal to each other. Because each rule which is deduced from indisputable origin (qatii al-thubut) and is deduced from completely explicit sources (qatii al-dalala) are accepted as the word of God or the Prophet. On the other hand, other rules deduced via jurisprudence- in other words by jurist’s own value of judgment is viewed as the virtual rule (al-hukm al-zāhir). Such rules do not express absolute certainty. It is unacceptable for these rules to be described as the word of God or the Prophet. In this way, it is clearly understood that the concept of khitaballahmentioned in the description do not introduce restriction to the evidences ofSharī‘ah.We do not see a contradiction when the indefinite rules of Islamic law included in the context of khitāb. Because ijtihāddoes not aim to produce a new rule, on the contrary it functions in order to find out the already existing rules. The legitimacy of the rule obtained through ijtihādemerges from the way that this rule is deduced from the khitāb,which directly or indirectly represents the divine will. In addition, according to us, this legitimacy is not merely limited to versification and conception of the khitāb, but it also includes the function of the reason in (reasonable of the) khitāb. As a matter of fact, trying to solve unlimited cases with limited texts is difficult- in fact this is impossible. The majority of the legal theorists also share this opinion. Then, there is no obstacle in accepting that each rule obtained by authentic source and methodology can be considered part of Islamic law by implicating the rule in the context of khitāb(which represents the divine will) - although it may contain error and presumption. (shrink)

Recent decades have seen a shift away from the traditional view that Aquinas's theory of the natural law is meant to supply us with normative guidance grounded in a substantive theory of human nature. In the present essay, I argue that this is a mistake. Expanding on the suggestions of Jean Porter and Ralph McInerny, I defend a derivationist reading of ST I-II, Q. 94, A. 2 according to which Aquinas takes our knowledge of the genuine goods of human (...) life and their proper ordering to one another to be self-evident only to the wise who are able to discern the truth about our God-given human nature. I then show that this reading provides a better account of Aquinas's view than two recent alternatives: John Finnis's brand of inclinationism and Daniel Mark Nelson's virtue-based interpretation. (shrink)

Throughout the text of the _Han Feizi_, we see opposition to traditional (and often Confucian) perspectives on a wide range of state activities, both internally and externally. This antipathy towards the traditional morally-based criteria for justifying state actions extends to the questions of when, how, and if to wage war. In what we may today think of as reasoning akin to Western conceptions of political realism, Han Fei argues that considerations of morality have no place, either in questions of war (...) and peace or, indeed, in broader questions of politics more generally. This is not, though, to say that Han Fei is uninterested in broader questions of when ware and peace are justified. However, such justifications are based not to be justified by appeal to moral concerns. Rather, the fundamental question to be answered is how the strength, security, and flourishing of the state would be affected by warfare. By viewing questions of war and peace from the perspective of state consequentialism, Han Fei believes that we can ascertain the answers to questions not only about when and if to engage in warfare, but also to questions of what particular actions can be justified within the context of war. (shrink)

The rapidly increasing role of automation throughout the economy, culture and our personal lives has generated a large literature on the risks of algorithmic decision-making, particularly in high-stakes legal settings. Algorithmic tools are charged with bias, shrouded in secrecy, and frequently difficult to interpret. However, these criticisms have tended to focus on particular implementations, specific predictive techniques, and the idiosyncrasies of the American legal-regulatory regime. They do not address the more fundamental unease about the prospect that we might one day (...) replace judges with algorithms, no matter how fair, transparent, and intelligible they become. The aim of this paper is to propose an account of the source of that unease, and to evaluate its plausibility. I trace foundational unease with algorithmic decision-making in the law to the powerful intuition that there is a basic moral and legal difference between showing that something is true of many people just like you and showing that it is true of you. Human judgment attends to the exception; automation insists on blindly applying the rule. I show how this intuitive thought is connected to both epistemological arguments about the value of statistical evidence, as well as to court-centered conceptions of the rule of law. Unease with algorithmic decision-making in the law thus draws on an intuitive principle that underpins a disparate range of views in legal philosophy. This suggests the principle is deeply ingrained. Nonetheless, I argue that the powerful intuition is not as decisive as it may seem, and indeed runs into significant epistemological and normative challenges. At an epistemological level, I show how concerns about statistical evidence's ability to track the truth can be resolved by adopting a probabilistic, rather than modal, conception of truth-tracking. At a normative level, commitment to highly individualized decision-making co-exists with equally ingrained and competing principles, such as consistent application of law. This suggests that the “rule of law” may not identify a discrete set of institutional arrangements, as proponents of a court-centric conception would have it, but rather a more loosely defined set of values that could potentially be operationalized in multiple ways, including through some level of algorithmic adjudication. Although the prospect of replacing judges with algorithms is indeed unsettling, it does not necessarily entail unreasonable verdicts or an attack on the rule of law. (shrink)

George Boole emerged from the British tradition of the “New Analytic”, known for the view that the laws of logic are laws of thought. Logicians in the New Analytic tradition were influenced by the work of Immanuel Kant, and by the German logicians Wilhelm Traugott Krug and Wilhelm Esser, among others. In his 1854 work An Investigation of the Laws of Thought on Which are Founded the Mathematical Theories of Logic and Probabilities, Boole argues that the laws of thought (...) acquire normative force when constrained to mathematical reasoning. Boole’s motivation is, first, to address issues in the foundations of mathematics, including the relationship between arithmetic and algebra, and the study and application of differential equations (Durand-Richard, van Evra, Panteki). Second, Boole intended to derive the laws of logic from the laws of the operation of the human mind, and to show that these laws were valid of algebra and of logic both, when applied to a restricted domain. Boole’s thorough and flexible work in these areas influenced the development of model theory (see Hodges, forthcoming), and has much in common with contemporary inferentialist approaches to logic (found in, e.g., Peregrin and Resnik). (shrink)

This book analyses the use of the crucial concept of 'taste' in the works of five major seventeenth-century French authors, Méré, Saint Evremond, La Rochefoucauld, La Bruyère and Boileau. It combines close readings of important texts with a thoroughgoing political analysis of seventeenth-century French society in terms of class and gender. Dr Moriarty shows that far from being timeless and universal, the term 'taste' is culture-specific, shifting according to the needs of a writer and his social group. The notion of (...) 'taste' not only helped to shape a new dominant culture, but also registered the conflicts within that culture between a view of taste that presupposted the values of 'polite society' as an exclusive (though not necessarily aristocratic) group, and a view that stressed the value of the classical-humanist tradition as a source of standards ratified by a broader public. this study sheds light not only on the central concept, but also on the individual authors discussed and on the norms of French classical literature in general. (shrink)

The main purpose of this paper is to explore the role played by logic in the legal domain. In the traditional conception which underlies the movement of codification, judges are able to find in the legal system (the Master System) a unique answer for every legal problem. This entails its completeness, consistency and the possibility of deriving from it the contents of all judicial decisions. Although the ideal model of this conception is supported by important theoretical and political ideals, it (...) has significant shortcomings. The elements of normative systems (Master Systems) are “norms” and not mere “norm-formulations.” A “norm” is the meaning attributed to normative linguistic expressions. The set of all normative expressions, such as statutes, codes, etc. forms what is called the Master Book. One of the main problems for the ideal model is the identification of a normative system behind the Master Book. Interpretative arguments are the tools designed to solve these problems. Although the requirements of the model are not totally fulfilled in actual practice, it remains as an effective ideal rational goal behind legal activities linked to adjudication and most theoretical approaches to law. (shrink)

This paper focuses on the question: Do persisting disagreements in constitutional interpretation affect the legitimacy of “the democratic system as a whole”? According to both Michelman and Waldron, the epistemic indeterminacy of interpretation—that is, the fact that principles do not possess stable meanings beyond, and independent of, their application to concrete cases—puts its finger on a point of the contractualist and prevailing political theory. But, if neither the legitimacy of any democratic order nor the standard of internal criticism can be (...) founded on a broad background consensus on constitutional essentials, “what else makes a deliberative process of legislation and adjudication a generator of legitimacy so that citizens are induced to accept controversial results as ‘worthy of respect’?” The route pursued goes beyond all views that require legitimacy to be based on sharing a set of “thick” ethical beliefs. In this perspective, the author argues that the performative meaning of constitution‐making “provides a thin yet sufficiently strong base,” which corresponds to the minimal requirements inherent in the very practice of framing a constitution. (shrink)

In his classic monograph, The Death of Contract, Grant Gilmore argued that Christopher Columbus Langdell, Oliver Wendell Holmes, and Samuel Williston trumped up the legal credentials for their classical bargain theory of contract law. Gilmore's analysis has been subjected to extensive criticism, but its specific, sustained, and fundamental charge that the bargain theory was based on a fraudulent misrepresentation of precedential authority has never been questioned. In this Essay, I argue that Gilmore's case against the classical theorists rests on the (...) suppressed premise that the precedential authority of cases resides in the express judicial reasoning used to decide them. In contrast, I argue that the classical theorists implicitly presuppose that the precedential authority of cases consists in the best theory that explains their outcomes, even if that theory is inconsistent with the case's express judicial reasoning. The classical view of precedential authority completely defuses Gilmore's charge of fraud. In Gilmore's view, merely demonstrating the inconsistency between the proposition for which the classical theorists cited a case and the express reasoning in that case suffices as proof of misrepresentation. But in the classical theorists' view, the express reasoning in a case is simply a theory of its precedential authority, which, like any theory, can be wrong. Thus, the classical theorists simply reject Gilmore's claim that a case cannot properly be cited for a proposition inconsistent with its express reasoning. The real dispute, then, between Gilmore and the classical theorists is over the nature of precedential authority and not the content of contract law. Having reframed the classic death-of-contract debate, I then trace these competing conceptions of precedential authority through the major schools of contemporary contract theory. I argue that a contract theory's embrace of one view instead of the other can be explained by the relative priority it accords to each of the two components in a conception of adjudicative legitimacy. A conception of adjudicative legitimacy consists in a theory of what it means for a decision to be based on law and a theory of what is required for law to be justified. I explain why theories according priority to the former tend to subscribe to the precedents-as-outcomes view, while theories according priority to the latter tend to favor the express reasoning view. The Essay concludes by arguing that the economic analysis of contract law subscribes to the precedents-as-outcomes view and therefore is the contemporary jurisprudential successor to the late nineteenth-century classical theorists. (shrink)