This book presents a comprehensive overview of what the criminal law would look like if organised around the principle that those who deserve punishment should receive punishment commensurate with, but no greater than, that which they deserve. Larry Alexander and Kimberly Kessler Ferzan argue that desert is a function of the actor's culpability, and that culpability is a function of the risks of harm to protected interests that the actor believes he is imposing and his reasons for acting in (...) the face of those risks. The authors deny that resultant harms, as well as unperceived risks, affect the actor's desert. They thus reject punishment for inadvertent negligence as well as for intentions or preparatory acts that are not risky. Alexander and Ferzan discuss the reasons for imposing risks that negate or mitigate culpability, the individuation of crimes, and omissions. (shrink)

Professional philosophers and advanced students working in metaphysics and the philosophy of science will find this book both provocative and stimulating.

Human rights law has been called upon to help with the problem of persistently high greenhouse gas emissions. An obligation on states and other legal entities to lower their emissions (mitigation) is said to be deducible from that body of law. I refute this thesis. First, I consider two practical difficulties—causality and non-triviality—that face a plaintiff who, with emission mitigation as the objective, attempts to prove a human rights violation using the regular pattern of proof for a violation. Proponents of (...) the “human rights approach” to mitigation have held that proof of an emission “contribution” by the defendant together with proof of an “impact” by climate change on the plaintiff’s human rights are sufficient to discharge the evidentiary burden for the proof of causation. The rest of the causation chain is simply presumed. Thus, the original proof pattern for a human rights violation is abandoned. The proponents’ answer to the triviality difficulty has been to aggregate emitters into very large entities and sue _them_. However, aggregation can be shown to lead to a _reductio ad absurdum_. In my argument’s second part, I identify a more fundamental difficulty with the human rights approach to mitigation: The defendant’s emissions do not amount to a norm violation. Everyone contributes emissions without legislative or other prohibition. Treaty law on climate change itself recognizes emitting behaviour as lawful and permits the continuation of state emissions through to at least 2050. A rise in global warming from preindustrial levels to 1.5° Celsius with room for an even greater rise to close to 2° Celsius has been _budgeted for_ by the Paris Agreement on Climate Change. The setting up of a budget affirms the normalized status of within-budget emissions. This universal license to emit denies the human rights approach to mitigation the very conditions of application of human rights law. (shrink)

A recombinationist like the earlier Armstrong (1989) claims that logically possible worlds are recombinations of items found in the actual world, with some items reduplicated if need be and others deleted. An immediate consequence of this is that if an..

Rosenberg applies current thinking in philosophy of science to neoclassical economics in order to assess its claims to scientific standing. Although philosophers have used history and psychology as paradigms for the examination of social science, there is good reason to believe that economics is a more appropriate subject for analysis: it is the most systematized and quantified of the social sciences; its practitioners have reached a measure of consensus on important aspects of their subject; and it encompasses a large number (...) of apparently law-like propositions. (shrink)

Hate speech law can be found throughout the world. But it is also the subject of numerous principled arguments, both for and against. These principles invoke a host of morally relevant features and practical considerations . The book develops and then critically examines these various principled arguments. It also attempts to de-homogenize hate speech law into different clusters of laws/regulations/codes that constrain uses of hate speech, so as to facilitate a more nuanced examination of the principled arguments. Finally, it argues (...) that it is morally fitting for judicial and legislative judgments about the overall warrant of hate speech law to reflect principled compromise. Principled compromise is characterized not merely by compromise over matters of principled concern but also by compromise which is itself governed by ideals of moral duty or civic virtue. (shrink)

Those who favour an ontology based on dispositions are thereby able to provide a dispositional essentialist account of the laws of nature. In part 1 of this paper I sketch the dispositional essentialist conception of properties and the concomitant account of laws. In part 2, I characterise various claims about the modal character of properties that fall under the heading ‘quidditism’ and which are consequences of the categoricalist view of properties, which is the alternative to the dispositional essentialist view. I (...) argue that quidditism should be rejected. In part 3, I address a criticism of a strong dispositional essentialist view, viz. that ‘structural’ (i.e. geometrical, numerical, spatial and temporal) properties must be regarded as categorical. (shrink)

Laws of nature take center stage in philosophy of science. Laws are usually believed to stand in a tight conceptual relation to many important key concepts such as causation, explanation, confirmation, determinism, counterfactuals etc. Traditionally, philosophers of science have focused on physical laws, which were taken to be at least true, universal statements that support counterfactual claims. But, although this claim about laws might be true with respect to physics, laws in the special sciences (such as biology, psychology, economics etc.) (...) appear to have—maybe not surprisingly—different features than the laws of physics. Special science laws—for instance, the economic law “Under the condition of perfect competition, an increase of demand of a commodity leads to an increase of price, given that the quantity of the supplied commodity remains constant” and, in biology, Mendel's Laws—are usually taken to “have exceptions”, to be “non-universal” or “to be ceteris paribus laws”. How and whether the laws of physics and the laws of the special sciences differ is one of the crucial questions motivating the debate on ceteris paribus laws. Another major, controversial question concerns the determination of the precise meaning of “ceteris paribus”. Philosophers have attempted to explicate the meaning of ceteris paribus clauses in different ways. The question of meaning is connected to the problem of empirical content, i.e., the question whether ceteris paribus laws have non-trivial and empirically testable content. Since many philosophers have argued that ceteris paribus laws lack empirically testable content, this problem constitutes a major challenge to a theory of ceteris paribus laws. (shrink)

This paper sketches a dispositionalist conception of laws and shows how the dispositionalist should respond to certain objections. The view that properties are essentially dispositional is able to provide an account of laws that avoids the problems that face the two views of laws (the regularity and the contingent nomic necessitation views) that regard properties as categorical and laws as contingent. I discuss and reject the objections that (i) this view makes laws necessary whereas they are contingent; (ii) this view (...) cannot account for certain kinds of laws of nature and their properties. (shrink)

The willful ignorance doctrine says defendants should sometimes be treated as if they know what they don't. This book provides a careful defense of this method of imputing mental states. Though the doctrine is only partly justified and requires reform, it also demonstrates that the criminal law needs more legal fictions of this kind. The resulting theory of when and why the criminal law can pretend we know what we don't has far-reaching implications for legal practice and reveals a pressing (...) need for change. (shrink)

Laws in the special sciences are usually regarded to be non-universal. A theory of laws in the special sciences faces two challenges. (I) According to Lange's dilemma, laws in the special sciences are either false or trivially true. (II) They have to meet the ?requirement of relevance?, which is a way to require the non-accidentality of special science laws. I argue that both challenges can be met if one distinguishes four dimensions of (non-) universality. The upshot is that I argue (...) for the following explication of special science laws: L is a special science law just if (1) L is a system law, (2) L is quasi-Newtonian, and (3) L is minimally invariant. (shrink)

Hans Kelsen’s claim that the state and the law are identical is surrounded by a somewhat mystical air. Yet, the ‘identity thesis’ loses much of its mystical aura when it is seen as an attempt to recast the state, qua social fact, in deontological terms. The state is seen as a condition necessary to account for the validity of legal acts. Indeed, the meaning of the state is reduced to the function performed by a conception of order in the reproduction (...) of a system of norms. No further social fact would attest to its existence. From a sociological point of view, all law is essentially, and principally, law sans state. (shrink)

In this paper we discuss how Causal Decision Theory should be modified to handle a class of problematic cases involving deterministic laws. Causal Decision Theory, as it stands, is problematically biased against your endorsing deterministic propositions (for example it tells you to deny Newtonian physics, regardless of how confident you are of its truth). Our response is that this is not a problem for Causal Decision Theory per se, but arises because of the standard method for assessing the truth of (...) certain counterfactuals. The truth of deterministic laws is `modally fragile' on the standard semantics for counterfactuals: if determinism is true and you were to do otherwise, the laws would be different. We provide two ways of avoiding this problem: 1) supplement the standard semantics for counterfactuals with impossible worlds, or 2) introduce rigid designators into the description of problematic decision situations. We argue that both of these approaches are well-motivated and can be readily incorporated into Lewisian Causal Decision Theory. (shrink)

Do the sciences aim to uncover the structure of nature, or are they ultimately a practical means of controlling our environment? In Instrumental Biology, or the Disunity of Science, Alexander Rosenberg argues that while physics and chemistry can develop laws that reveal the structure of natural phenomena, biology is fated to be a practical, instrumental discipline. Because of the complexity produced by natural selection, and because of the limits on human cognition, scientists are prevented from uncovering the basic structure (...) of biological phenomena. Consequently, biology and all of the disciplines that rest upon it--psychology and the other human sciences--must aim at most to provide practical tools for coping with the natural world rather than a complete theoretical understanding of it. (shrink)

Peter Alexander: It is presumably admitted that laws, whether causal or not, are universal in form; they are appropriately stated in universal categoricals or unrestricted hypotheticals. I assume that this is not at issue in the question set. I take our question to be this: given that causal laws are universal statements, can they be said to be about, to apply to, to hold for, individual things? -/- Peter Downing: Mr. Alexander maintains that there are 'irreducibly singular' causal (...) statements, and that from this it follows that causal laws need not be purely general. The view that there are irreducibly singular causal statements appears to commit Alexander to rejecting two theses: (i) that singular causal statements are analysable into statements containing specific generalizations, [...] (ii) That singular causal statements are analysable into statements containing incompletely specified generalizations [...]. Thesis (i) is, I think, clearly false. [...] Thesis (ii), however, is not easily refuted. (shrink)

In 'Necessarily, salt dissolves in water' (Analysis 61 (2001)), I argued that because the laws required for the existence of salt entail the laws that ensure dissolving in water, there is no possible world in which salt exists but fails to dissolve in water. In this paper I respond to criticisms from Helen Beebee and Stathis Psillos (Analysis 62 (2002)). I also introduce the 'down-and-up' structure, generalising the case. Whether or not this structure is instantiated is a matter for a (...) posteriori discovery. Hence not only are some laws necessary (but known a posteriori), but furthermore whether a given law is necessary or contingent will also be a matter of a posteriori discovery. (shrink)

In "The Rule of Rules" Larry Alexander and Emily Sherwin examine this dilemma.

I show that Armstrong’s view of laws as second-order contingent relations of ‘necessitation’ among categorical properties faces a dilemma. The necessitation relation confers a relation of extensional inclusion (‘constant conjunction’) on its relata. It does so either necessarily or contingently. If necessarily, it is not a categorical relation (in the relevant sense). If contingently, then an explanation is required of how it confers extensional inclusion. That explanation will need to appeal to a third-order relation between necessitation and extensional inclusion. The (...) same dilemma reappears at this level. Either Armstrong must concede that some properties are not categorical but have essential powers – or he is faced with a regress. (shrink)

In their influential paper “Ceteris Paribus, There is No Problem of Provisos”, Earman and Roberts (Synthese 118:439–478, 1999) propose to interpret the non-strict generalizations of the special sciences as statistical generalizations about correlations. I call this view the “statistical account”. Earman and Roberts claim that statistical generalizations are not qualified by “non-lazy” ceteris paribus conditions. The statistical account is an attractive view, since it looks exactly like what everybody wants: it is a simple and intelligible theory of special science laws (...) without the need for mysterious ceteris paribus conditions. I present two challenges to the statistical account. According to the first challenge, the statistical account does not get rid of so-called “non-lazy” ceteris paribus conditions. This result undermines one of the alleged and central advantages of the statistical account. The second challenge is that the statistical account, qua general theory of special science laws, is weakened by the fact that idealized law statements resist a purely statistical interpretation. (shrink)

Despite the ever-changing field of artificial intelligence (AI) and its preponderance of pre-print articles, Cohen offers a timely, nuanced, and self-aware overview of ChatGPT and the world of Larg...

Debates concerning the analysis of the concept of law of nature must address the following problem. On the one hand, our grasp of laws of nature is via our knowledge of their instances. And this seems not only an epistemological truth but also a semantic one. The concept of a law of nature must be explicated in terms of the things that instantiate the law. It is not simply that a piece of metal that conducts electricity is evidence for a (...) law that metals conduct electricity. It is also the case that to explicate what it is for there to be such a law requires, and requires little more than, alluding to the fact that the piece of metal conducting electricity is an instance of that law. This is the driving intuition behind regularity theories of laws — to understand the concept ‘law,’ as in ‘it is a law that metals conduct electricity’ one need only understand little more than what it is for something to be a metal and to conduct electricity and the concept of universal generalization. On this view a law just is a regularity (or some kind of regularity) among its instances. (shrink)

In an age of widespread cutbacks on social spending, the prospects of social policy generally appear to be grim. If noticeable progress has been recently made in the European Union, then it is in regard to rooting out discrimination. Indeed, anti-discrimination law and policy appears to be the one sphere of social policy whose success is causally connected to the European Union. But how successful can anti-discrimination law be? This book uses legal analysis in order to expose the intrinsic shortcomings (...) of common approaches. Anti-discrimination law fails to provide adequate legal guidance and therefore invites constant supplementation by pedagogical projects of social engineering. This book offers a genuinely leftist critique on anti-discrimination law, and concludes with a discussion of alternative models of solidarity in the Union. (shrink)

The Leibniz Center for Law is involved in the project Digitale Uitwisseling Ruimtelijke Plannen [DURP (http://www.vrom.nl/durp); digital exchange of spatial plans] which develops a XML-based digital exchange format for spatial regulations. Involvement in the DURP project offers new possibilities to study a legal area that hasn’t yet been studied to the extent it deserves in the field of Computer Science & Law. We studied and criticised the work of the DURP project and the Dutch Ministry of internal affairs on metadata (...) for regulatory documents, and made an inventory of issues related to legal knowledge representation that it felt were not sufficiently covered by current initiatives in the Geographic Information Systems (GIS) field. This inventory was an input to the DURP standardisation effort. In a second phase of the project we extended the METALex XML schema (cf. Boer et al. 2002; Boer et al. 2003) for ‚regular’ legal sources that we developed in the past for geospatial regulatory information, in order to support exchange of spatial regulations, including the associated geospatial information in the form of maps. We developed a prototype application and demonstrated how the spatial planning information in GML can be combined with XML with only minimal changes, using the Web Ontology Language (OWL). This paper describes our experiences. (shrink)

The Anthropocene has been observed as an opportunity to generate new legal imaginaries capable of revising incumbent assumptions of legal and political thought. What opportunities do such ambitions afford for communication between geological and legal thought? Responding to Birrell & Matthews attempt to ‘re-story a law for, rather than of, the Anthropocene,’ I wish to describe some ways in which the Anthropocene Working Group, who are pursuing formalisation of the Anthropocene as an official geological unit, are involved in a similar (...) exercise of re-storying geology. The Anthropocene theme is brought to bear as a geological reality through material practices of measurement and correlation, as well as through the invocation of previous judgements of the evaluative committees associated with the formalisation of new geological unit. This effort amounts to a redefinition of the practices of geological observation, i.e. what counts as geologically relevant and why. In keeping with the theme of an ‘ethics of encounter’, as encouraged by Birrell and Matthews, this article suggests that the AWG’s effort provides a model with which the elaboration of ‘laws for the Anthropocene’ might correspond. (shrink)

Debates concerning the analysis of the concept of law of nature must address the following problem. On the one hand, our grasp of laws of nature is via our knowledge of their instances. And this seems not only an epistemological truth but also a semantic one. The concept of a law of nature must be explicated in terms of the things that instantiate the law. It is not simply that a piece of metal that conducts electricity is evidence for a (...) law that metals conduct electricity. (shrink)

Journal of Religious Ethics, Volume 49, Issue 4, Page 638-656, December 2021.

In this unique book, Alexander Lian, a practicing commercial litigator, advances the thesis that the most famous article in American jurisprudence, Oliver Wendell Holmes's “The Path of the Law,” presents Holmes's leading ideas on legal education. Through meticulous analysis, Lian explores Holmes's fundamental ideas on law and its study. He puts “The Path of the Law” within the trajectory of Holmes's jurisprudence, from earliest scholarship to The Common Law to the occasional pieces Holmes wrote or delivered after joining the (...) U.S. Supreme Court. Lian takes a close look at the reactions “The Path of the Law” has evoked, both positive and negative, and restates the essay's core teachings for today's legal educators. Lian convincingly shows that Holmes's “theory of legal study” broke down artificial barriers between theory and practice. For contemporary legal educators, Stereoscopic Law reformulates Holmes's fundamental message that the law must been seen and taught three-dimensionally. (shrink)

Intellectual property law operates with the ontological assumption that immaterial goods such as works, inventions, and designs exist, and that these abstract types can be owned like a piece of land. Alexander Peukert provides a comprehensive critique of this paradigm, showing that the abstract IP object is a speech-based construct, which first crystalised in the eighteenth century. He highlights the theoretical flaws of metaphysical object ontology and introduces John Searle's social ontology as a more plausible approach to the subject (...) matter of IP. On this basis, he proposes an IP theory under which IP rights provide their holders with an exclusive privilege to use reproducible 'Master Artefacts.' Such a legal-realist IP theory, Peukert argues, is both descriptively and prescriptively superior to the prevailing paradigm of the abstract IP object. This work was originally published in German and was translated by Gill Mertens. (shrink)

American criminal law is committed to some version of the doctrine of double effect. In this paper, I defend a new variant of the agent-centered rationale for a version of DDE that is of particular relevance to the criminal law. In particular, I argue for a non-absolute version of DDE that concerns the relative culpability of intending a bad or wrongful state of affairs as opposed to bringing it about merely knowingly. My aim is to identify a particular feature of (...) the former in virtue of which it is pro tanto more culpable than the latter. Providing an agent-centered argument of this kind for a culpability version of DDE, I argue, is an especially attractive route to take for those who are interested in vindicating the way the criminal law actually encodes DDE. (shrink)

This article introduces the main conceptual and normative questions about willful ignorance. The first section asks what willful ignorance is, while the second section asks why—and how much—it merits moral or legal condemnation. My approach is to critically examine the criminal law's view of willful ignorance. Doing so not only reveals the range of positions one might take about the phenomenon but also sheds light on foundational questions about the nature of culpability and the relation between law and morality.

The law marks a significant difference between violent and non-violent criminal actions. Violent crimes are typically met with more severe punishments and consequences than non-violent crimes. Even in discussions of criminal justice reform, the refrain remains: violent crime is different; those convicted of violent crimes are different; and it is appropriate to respond to violent crime differently. This article argues that the violent/non-violent distinction cannot bear the normative weight placed on it and that we should jettison violence and move to (...) thinking about objectionable harm caused and risked. There are moral constraints on punishment from considerations of proportionality and equality, these are connected to wrongful harm and facts about agent culpability, and there is no consistent relationship between violence and wrongful harm nor between violence and culpability. The article concludes by offering an error-theory concerning our commitment to treating violent crime differently and suggests that morally better categorizations are available. (shrink)

The problem of legal luck asks why defendants who cause harm should receive more punishment than analogous actors who, simply due to luck, don’t cause harm. Here I consider one type of justification that assumes luckily harmless actors are just as culpable as their harmful counterparts. Specifically, I focus on the legislature’s reasons to ratchet down punishments for harmless wrongdoers beneath what is permitted on culpability grounds. After critiquing several such arguments, I develop a more promising version based on the (...) idea that the legislature has a duty not to be cruel. The legislature would violate this duty if it always passed laws imposing the maximum punishments permitted on culpability grounds. Withholding some punishment otherwise due harmless wrongdoers thanks to their culpability is a particularly appropriate way for the legislature to eschew cruelty. This provides a promising new justification for punishing luckily harmless misconduct less harshly. (shrink)

Can an AGI create a more intelligent AGI? Under idealized assumptions, for a certain theoretical type of intelligence, our answer is: “Not without outside help”. This is a paper on the mathematical structure of AGI populations when parent AGIs create child AGIs. We argue that such populations satisfy a certain biological law. Motivated by observations of sexual reproduction in seemingly-asexual species, the Knight-Darwin Law states that it is impossible for one organism to asexually produce another, which asexually produces another, and (...) so on forever: that any sequence of organisms (each one a child of the previous) must contain occasional multi-parent organisms, or must terminate. By proving that a certain measure (arguably an intelligence measure) decreases when an idealized parent AGI single-handedly creates a child AGI, we argue that a similar Law holds for AGIs. (shrink)

In this paper I examine two aspects of Hempel’s covering-law models of explanation. These are (i) nomic subsumption and (ii) explication by models. Nomic subsumption is the idea that to explain a fact is to show how it falls under some appropriate law. This conception of explanation Hempel explicates using a pair of models, where, in this context, a model is a template or pattern such that if something fits it, then that thing is an explanation. A range of well-known (...) counter-examples to Hempel’s models has led his successors to seek alternatives. Problems with limited amendments have encouraged some theorists of explanation to abandon nomic subsumption. So, in particular, causal components have come to be regarded as essential, even though Hempel had intended his model to capture causal explanation as well.1 Here I want to examine the prospects for retaining nomic subsumption by rejecting the other feature of Hempel’s approach – explication by models. An examination of the counter-examples will suggest that it is a mistake to imagine that a limited quantity of information about laws and antecedent conditions will be able to provide an actual explanation – other information, about explanations, may be relevant. This in turn leads me to examine what I shall call structural approaches. They are structural because the status of something as an explanation depends on its fitting into a structure of explanations. There are two structural approaches I shall examine. One is holistic – it proposes that we consider explanation hand-in-hand with the concept of law. This account of explanation inherits its holistic nature from the holistic (or sys- tematic) character of laws of nature. The second supervenience view I shall consider is not global as the holistic approach is. Instead it concentrates on the ‘vertical’ structure of explanations, whereby the existence of a nomic explanation at one level reflects explanations on lower levels on which it supervenes. These structural approaches were first proposed in Bird Synthese 120: 1–18, 1999. © 1999 Kluwer Academic Publishers.. (shrink)

Orthodox criminal law doctrine treats mistakes of law and mistakes of fact differently for purposes of both exculpation and inculpation. Kenneth Simons’ paper in general defends this orthodoxy. I have earlier criticized the criminal law’s attempt to distinguish mistakes of law from mistakes of fact, and I continue to maintain, in opposition to Simons, that the distinction is problematic.

This Major Reference series brings together a wide range of key international articles in law and legal theory. Many of these essays are not readily accessible, and their presentation in these volumes will provide a vital new resource for both research and teaching. Each volume is edited by leading international authorities who explain the significance and context of articles in an informative and complete introduction.

What are ceteris paribus laws? Which disciplines appeal to cp laws and which semantics, metaphysical underpinning, and epistemological dimensions do cp law statements have? Firstly, we give a short overview of the recent discussion on cp laws, which addresses these questions. Secondly, we suggest that given the rich and diverse literature on cp laws a broad conception of cp laws should be endorsed which takes into account the different ways in which laws can be non-universal . Finally, we provide an (...) overview of the special issue on that basis and describe the individual contributions to the special issue according to the issues they address: the range of applications of cp laws as well as the semantics, metaphysics, and epistemology pertaining to cp law statements. (shrink)

This is a rewarding book. In terms of area, it has one foot firmly planted in metaphysics and the other just as firmly set in the philosophy of science. Nature's Metaphysics is distinctive for its thorough and detailed defense of fundamental, natural properties as essentially dispositional and for its description of how these dispositional properties are thus suited to sustain the laws of nature as (metaphysically) necessary truths.

The paper examines “Campbell’s Law”: “The more any quantitative social indicator is used for social decision-making, the more subject it will be to corruption pressures and the more apt it will be to distort and corrupt the social processes it is intended to monitor.” The examination of measurability leads to explaining the reason for existence of a class of unmeasurable phenomena. The author describes a kind of habitus in which a strong taboo against measuring must exist by necessity, not by (...) choice. The taboo is, in effect, a result of degradation of a certain kind of habitus. And finally, the paper demonstrates under which conditions the Campbell’s law is in effect, and how we can mitigate its effects in social decision-making. (shrink)