This book provides a focus for future discussion in one of the most important debates within historical theology within the protestant tradition - the debate about the definition of a category of analysis that operates over five centuries of religious faith and practice and in a globalising religion. In March 2009, TIME magazine listed ‘the new Calvinism’ as being among the ‘ten ideas shaping the world.’ In response to this revitalisation of reformation thought, R. Scott Clark and D. G. (...) class='Hi'>Hart have proposed a definition of ‘Reformed’ that excludes many of the theologians who have done most to promote this driver of global religious change. In this book, the Clark-Hart proposal becomes the focus of a debate. Matthew Bingham, Chris Caughey, and Crawford Gribben suggest a broader and more historically responsible definition for ‘Reformed,’ as Hart and Scott respond to their arguments. (shrink)

Scholars of classical philosophy have long disputed whether Aristotle was a dialectical thinker. Most agree that Aristotle contrasts dialectical reasoning with demonstrative reasoning, where the former reasons from generally accepted opinions and the latter reasons from the true and primary. Starting with a grasp on truth, demonstration never relinquishes it. Starting with opinion, how could dialectical reasoning ever reach truth, much less the truth about first principles? Is dialectic then an exercise that reiterates the prejudices of one's times and at (...) best allows one to persuade others by appealing to these prejudices, or is it the royal road to first principles and philosophical wisdom? In From Puzzles to Principles? May Sim gathers experts to argue both these positions and offer a variety of interpretive possibilities. The contributors' thoughtful reflections on the nature and limits of dialectic should play a crucial role in Aristotelian scholarship. (shrink)

In this paper we discuss the question whether God intends that sin occur. We clarify the question, consider some of the answers given in the Christian tradition, and give a careful commentary on a few especially telling passages from the Christian Scriptures. We consider two philosophically informed interpretative strategies, one derived from the work of Frances Kamm, the other from Reformed scholasticism, against our interpretation of these passages. While we concede that in other passages such interpretations may allow a way (...) of escaping our argument, we conclude that in the case of the telling passages we have selected there is simply no comparably plausible alternative interpretation. (shrink)

The advent of Frankfurt-style counterexamples in the early 1970s posed a problem not merely for incompatibilists, but for compatibilists also. At that time compatibilists too were concerned to hold that the presence of alternative possibilities was necessary for moral responsibility. Such a classical compatibilism, I argue in this paper, should not have been left behind. I propose that we can use a Kratzer-style semantics of ‘can’ to model ‘could have done otherwise’ statements in such a way that the truth of (...) such expressions is both (i) evidently consistent with determinism, and (ii) clearly such that Frankfurt-style counterexamples do not count as cases where the agent could not have done otherwise. (shrink)

Demons have the power to cause temptations in us, and Christian materialism implies the supervenience of temptations on brain states. This in turn implies that demons bring about temptations by causally interfering with our brains. But if they have such an ability to affect the physical world, it is mysterious why they do not wreak more havoc than they do both to our brains and in the world more generally. Substance dualism provides an elegant solution: demonic temptation is not a (...) species of soul-to-brain causation, but soul-to-soul, and we don’t need to suppose demons have the power to directly affect the physical world. Materialist solutions, in contrast, are ad hoc. (shrink)

More has been said about the Hart-Fuller debate than can be considered healthy or productive even within the precious world of jurisprudential scholarship – too much philosophising about how law has revelled in its own abstractness and narrowness. But the mission of this book is distinctly and determinedly different – it is not to rework these already-rehashed ideas, but to reject them entirely. Rather than add to the massive jurisprudential literature that has been generated by all and sundry, the (...) book criticises and abandons the project that Hart and Fuller set in motion. It contends that the turn that was taken in 1957 has led down a series of cul-de-sacs, blind alleys, and dead-ends to nowhere useful or illuminating. It is more than past time to leave their debate behind and strike out in an entirely new and more promising direction. The book insists that not only law, but also all theorising about law, is political in all its derivations, dimensions, and directions. (shrink)

A number of philosophers in recent years have maintained that H. L. A. Hart in The Concept of Law propounded an expressivist account of the semantics of the legal statements that are uttered from the internal viewpoint of the people who run the institutions of legal governance in any jurisdiction. Although the primary aim of this article is to attack the attribution of that semantic doctrine to Hart, the article will begin with some metaphysical matters—the matters of reductionism (...) and naturalism—that often lie behind the development of expressivist approaches to the semantics of normative discourse. After briefly exploring those metaphysical concerns (to which I will return later), the article will begin its main discussion by rehearsing the distinction between the semantics and the pragmatics of utterances. It will then delineate the doctrine of expressivism which the aforementioned philosophers have in mind when they ascribe that doctrine to Hart. Although I will make reference to a few such philosophers, I will focus chiefly on an article by Kevin Toh that has been the fountainhead of all the subsequent attributions of expressivism to Hart. As will be argued herein, Toh and like‐minded philosophers have gone astray in imputing to Hart a semantic version of expressivism. Notwithstanding that Hart’s theory of law can aptly be characterized as expressivist, that characterization is appropriate only when expressivism is understood as an account of the pragmatics of legal statements rather than as an account of their semantics. (shrink)

In Legality Scott Shapiro seeks to provide the motivation for the development of his own elaborate account of law by undertaking a critique of H.L.A. Hart's jurisprudential theory. Hart maintained that every legal system is underlain by a rule of recognition through which officials of the system identify the norms that belong to the system as laws. Shapiro argues that Hart's remarks on the rule of recognition are confused and that his model of lawis consequently untenable. Shapiro (...) contends that a new approach is vital for progress in the philosophy of law and, with his lengthy presentation of his own Planning Theory of Law, he aspires to pioneer just such an approach. Except for a very terse observation in the final main section, this article does not directly assess the strengths and shortcomings of Shapiro's piquant planning theory. Instead, I defend Hart against Shapiro's charges and thereby undermine the motivation for the development of the planning theory. (shrink)

This paper first recapitulates the objections by H.L.A. Hart to the ways in which John Austin’s command model of law obfuscated the importance and the very existence of power-conferring laws. Although those objections are familiar in the world of contemporary legal philosophy, their insightfulness is highlighted here because they contrast so sharply with Hart’s own neglect of power-conferring laws at some key junctures in his theorizing. In the second half of this paper, I ponder a few of the (...) junctures where Hart failed to heed the admonitions which he had so deftly leveled against Austin. (shrink)

The recent publication of a lost essay by Herbert Hart is important for an historical appreciation of his work, but its likely celebration is a sad testament to the poverty and lethargy of contemporary legal thought. I use this occasion to review the state and condition of contemporary legal theorising. After positioning Hart's essay in the prevailing jurisprudential milieu, I highlight the thrust and the failings of the three main traditional approaches to contemporary legal theorising in regard to (...) the nature and operation of 'judicial discretion'. Then, I suggest an alternative approach to legal theorising that recommends a more satisfying way of proceeding. (shrink)

This paper is one of the four interrelated action agenda papers resulting from the National Summit on Public Health Legal Preparedness convened in June 2007 by the Centers for Disease Control and Prevention and multi-disciplinary partners. Each of the action agenda papers deals with one of the four core elements of public health legal preparedness: laws and legal authorities; competency in using those laws; coordination of law-based public health actions; and information. Options presented in this paper are for consideration by (...) policy makers and practitioners — in all jurisdictions and all relevant sectors and disciplines — with responsibilities for all-hazards emergency preparedness.Advancing and protecting the public's health depends upon the coordination of actions by many, diverse partners. For effective public health preparedness, there must be effective coordination of legal tools and law-based strategies across local, state, tribal, and federal jurisdictions, and also across sectors such as public health, health care, emergency management, education, law enforcement, community design, and academia. (shrink)

This paper is one of the four interrelated action agenda papers resulting from the National Summit on Public Health Legal Preparedness convened in June 2007 by the Centers for Disease Control and Prevention and multi-disciplinary partners. Each of the action agenda papers deals with one of the four core elements of public health legal preparedness: laws and legal authorities; competency in using those laws; coordination of law-based public health actions; and information. Options presented in this paper are for consideration by (...) policy makers and practitioners — in all jurisdictions and all relevant sectors and disciplines — with responsibilities for all-hazards emergency preparedness.Advancing and protecting the public's health depends upon the coordination of actions by many, diverse partners. For effective public health preparedness, there must be effective coordination of legal tools and law-based strategies across local, state, tribal, and federal jurisdictions, and also across sectors such as public health, health care, emergency management, education, law enforcement, community design, and academia. (shrink)

A discourse on method -- Hart on legal powers and law's normativity -- The components of Hart's jurisprudential theory -- Hart on legal interpretation and legal reasoning -- Law and morality.

In lieu of an abstract, here is a brief excerpt of the content:On David Bentley Hart's Account of TraditionMatthew LeveringIn Tradition and Apocalypse, David Hart argues that "the concept of 'tradition' in the theological sense, however lucid and cogent it might appear to the eyes of faith, is incorrigibly obscure and incoherent."1 This claim coheres with the New Testament scholar Ernst Käsemann's notion of apocalyptic, as set forth in Käsemann's well known rhetorical questions—to which he answers in the (...) negative—"Has there ever been a theological system which has not collapsed? Have we been promised that we should know ourselves to be in possession of a theologia perennis?"2 For Käsemann, Christian theological "continuity" (if such there is) consists in "the hope of the manifestation of the Son of Man on his way to enthronement"3—Easter hope. Hart follows his own version of this path.Hart contends that he does not intend to overthrow the truth of the Nicene Creed.4 But he bemoans the claims of various Christian communities—Catholic, [End Page 215] Orthodox, Protestant—to have faithfully communicated the Gospel: "All Christian communions of any size or duration have their distinctive traditionalisms, their myths of continuity amidst rupture and rupture amidst continuity, their claims of doctrinal pedigree and of allegiance to the authority of the Christian past."5 Hart rejects all such ecclesial claims of dogmatic continuity and fidelity. Theologically, he deems it impossible for anyone "to say with absolute finality what the one true tradition is."6 Historically, he thinks it impossible to discern any "rational unity within the course of Christian tradition that one could confidently claim has been sustained intact amid the flux of times and cultures."7There are certain rhetorical emphases that stand out as Hart describes his own constructive view of Christian "tradition." He states that tradition is "the constant creative recollection of a promise whose fulfillment and ultimate meaning are yet to be unveiled"—not in the sense that the Church awaits the fullness that is to come and that dogmatic propositions, while true, are always inadequate to divine realities, but in the stronger sense of appealing to "a future apocalyptic horizon where the tradition's ultimate meaning is to be found" and rejecting "any reduction of that final revelation to whatever formulations of belief happen to be available at any given stage of doctrinal development." Hart depicts Christian tradition as an active transmission of a gift that remains fundamentally hidden and unknown. He invokes the image of "the impartation of a gift that remains sealed, a giving always deferred toward a future not yet known." There is a giving, but this giving is "always deferred," its future is "not yet known," and the gift itself "remains sealed." Hart argues that the "gift must remain sealed until the very end, so that the glory will not dissipate into ordinary time, whose atmosphere is incapable of sustaining and nourishing it." Time—history—cannot sustain or nourish the divine gift, and so it must be "sealed" until the end of time; and yet it can be known "in and as" ever-changing, historical tradition.8Tradition accomplishes this handing on of the sealed gift, says Hart, through its "ceaseless flow of... intertwining variations." Hart adds with regard to historicity and to "the animating impulse of the tradition": "Once that vital force has moved on to assume new living configurations, the attempt unnaturally to preserve earlier forms can achieve nothing but... the perfumed repose of a cadaver."9 The "earlier forms" that once [End Page 216] contained the "vital force" must constantly be reconfigured within tradition's "ceaseless flow."Hart pictures a destabilizing "play of tension and resolution, stability and disintegration," and he holds that we must possess a "positive desire for moments of dissolution" if we are to be faithful to "whatever is most original and most final in a tradition." Only thus can whatever is "most imperishable in a tradition... be fitfully perceived, or at least sensed," by those few persons spiritually and intellectually able to do so. By comparison, I would suggest that the core realities of faith can be much more than "fitfully perceived" or "sensed"; I think dogmatic formulations serve... (shrink)

This book brings together contributions from seventeen of the world's foremost legal and political philosophers to examine the lasting influence of H.L.A. Hart. The essays explore the major subjects of Hart's work: general jurisprudence, criminal responsibility, rights, justice, causation and the foundations of liberalism.

These are for entries for _The Cambridge Rawls Lexicon_, edited by Jon Mandle and David Reidy, on H.L.A. Hart, Charles Beitz, Sovereignty, and Citizen.

This book is the product of a major British Academy Symposium held in 2007 to mark the centenary of the birth of H.L.A. Hart, the most important legal philosopher and one of the most important political philosophers of the twentieth century. -/- The book brings together contributions from seventeen of the world's foremost legal and political philosophers who explore the many subjects in which Hart produced influential work. Each essay engages in an original analysis of philosophical problems that (...) were tackled by Hart, some essays including extended critical discussions of his major works: The Concept of Law, Punishment and Responsibility, Causation in the Law and Law, Liberty and Morality. All the main topics of Hart's philosophical writings are featured: general jurisprudence and legal positivism; criminal responsibility and punishment; theories of rights; toleration and liberty; theories of justice; and causation in the law. (shrink)

O presente trabalho pretende abordar a teoria da unidade do valor, enquanto teoria geral da interpretação. Ao superar a suposta divisão entre direito e moral, considerando a atividade interpretativa o elemento central de uma teoria normativa de todo o empreendimento humano, Dworkin evidencia as limitações do positivismo jurídico concebido por Hart em fornecer soluções adequadas aos “casos difíceis” e amplia o espectro para se encontrar uma “resposta correta” aos casos concretos em uma teoria normativa atrelada à moralidade política, manifestada (...) pela atividade interpretativa, cujo sentido será o valor atribuído pelo intérprete a um determinado fato ou objeto. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Justice, Language and Hume: A Reply to Matthew Kramer James Allan How much reliance, in David Hume's convention-based picture ofthe origins ofjustice, needstobe placed on apre-existingcommon language amongst the various participants? Matthew Kramer has argued that Hume's story of the passage "from the hostilities of nature to the serenity of civilized Ufe"1 is, in effect, incoherent. It is incoherent, Kramer asserts, because "language must be in (...) place already" (Kramer, 148) in order for family groups tojoin together into larger social units by means of Humean convention. In other words, Kramer takes the view that a commonlanguage is needed amongst all the players for thé gradual establishment ofjustice by human conventions to be possible. But it is just this very thing, a relatively sophisticated common language, that can only be achieved after the establishment of the larger societal unit. Kramer therefore sees Hume's account of the origins of justice as, at best, paradoxical because "the founding of a societal unit can take place only if such a unit has already been founded" (Kramer, 149). This article shall be concerned to defend, against the thrust of Kramer's attack, the broad outlines2 of Hume's story of the origins of justice in book 3 of the Treatise. At any rate, I will argue that Hume's explicitlyahistorical accountis coherent? Butinmakingthis argument I shall be careful to place Hume's account of justice in its proper perspective. It must be recalled that Hume was attempting to explain all ofhuman morals, aesthetics and virtues in a scientific way. In this scheme,justice—for him, the stability ofpossessions or the basic rules of property—was the pre-eminent "artificial" virtue. As we shall see, no interpretation ofHume's account ofthe escape tojustice can ignore his wider concern, to explain empirically human nature and conduct. Let us start, however, with a bare summary of Kramer's thesis. Firstly, Kramer sets out Hume's core position. Justice (basic rules of property) and thus society result from the re-directing ofself-love. The process does not rely on agreement and is thus immune from one ofthe main criticisms of social contract theories (that is, how to explain the bindingness of a first ever contract).4 Rather, Hume's account is of justice emerging ever so gradually from reciprocal conventions. Where small family living is "natural"—some original or inherent Volume XVII Number 2 81 JAMES ALLAN principle—life in society is created by convention. In this sensejustice is "artificial." Secondly, two critiques of Hume's position are considered and found, by Kramer, ultimately to be unsuccessful. The first is the weakness noted above and common toall social contract analyses: from where does the bindingness of a first contract come? But Hume explicitly rejected contractarian theories as Kramer allows. Hume's conventional theory "is not of the nature of a promise:... it arises gradually, and acquires force by a slow progression, and by our repeated experience of the inconveniences of transgressing it."5 The second critique which Kramer finds abortive, and to which I shall return below, involves the role of reason in the creation of justice. Primitive reflection based on already experienced events, impressions or ideas would not be sufficient to overcome avid self-interest.6 But in response to this attack Kramer retorts that it is at most inconclusive whether the experiences of family life combined with reason could overcome self-interest on Hume's model. Thirdly, Krameroffers his own critique in the hope ofshowing that "Hume's story disrupts itself when it narrates certain events that cannot possiblymaterialize until theyhave already occurred" (Kramer, 143). Kramer's attack on the Humean conventional move tojustice, as indicated above, concentrates on language. But it is well to note carefully Kramer's interpretation of Hume's account of the building of stable, society-wide property rules. Kramer takes this to be that, "[a]s a result ofcrude reflection and the restraints offamily life, most people come to realize that a persistent demand for goods can be better filled within society than without it" (Kramer, 147; emphasis mine). Thus, says Kramer, the first step, temporally, is a rational deduction. After reason has alerted us to... (shrink)

In this article the author reviews the recent exchange in this Journal between David Dyzenhaus and Matthew Kramer on the merits of legal positivism. He then offers his own modest proposal regarding future debates on that topic.

"Mystic Maybe's": the title comes from Augustine Birrill's words on the death of Matthew Arnold. Is it true that Richard Kearney's philosophy of religion, like Arnold's reflections on the Bible, are "mystic maybe's," mere flirtations with possibility? In order to answer this question I seek to understand Kearney's expression "the God who may be" and to see if it fits into a non-metaphysical philosophy of religion. The expression is clarified by way of comparisons with Wolfhart Pannenberg's eschatological understanding of (...) God and Eberhard Jungel's theology of possibility. One weak point in Kearney's philosophy of religion, it is argued, is its avoidance of theology in the name of the philosophy of religion. A sound philosophy of religion needs to engage with theology. /// "Mystic Maybe's" (Possibilidades místicas): Este titulo deriva das palavras de Augustine Birrill acerca da morte de Mathew Arnold. O autor do artigo pergunta até que ponto a filosofia da religião de Richard Kearney não será, tal como as reflexões de Arnold acerca da Bíblia, um mew "místico talvez", um simples namoro com a possibilidaãe. Em ordem a responder à questão, o autor procura compreender o sentido da expressão de Richard Kearney acerca do "Deus que pode ser" de modo a avaliar até que ponto a expressão se adequa a uma filosofia não-metafísica da religião. O artigo clarifica a expressão de Kearney mediante uma comparação quer com a compreensão escatológica de Deus de Wolfhart Pannenberg quer com a teologia da possibilidade de Eberhard Jüngel. Mostra-se, desta forma, que um dospontos maisfracos na filosofia da religião de Richard Kearney consiste na sua tentativa de escapar à teologia em nome da filosofia da religião. Com efeito, argumenta o autor do artigo, uma autêntica filosofia da religião não pode deixar de estar num diálogo eficaz com a teologia. (shrink)

This paper seeks to clarify and defend the proposition that moral realism is best elaborated as a moral doctrine. I begin by upholding Ronald Dworkin’s anti-Archimedean critique of the error theory against some strictures by Michael Smith, and I then briefly suggest how a proponent of moral realism as a moral doctrine would respond to Smith’s defense of the Archimedeanism of expressivism. Thereafter, this paper moves to its chief endeavor. By differentiating clearly between expressivism and quasi-realism, the paper highlights both (...) their distinctness and their compatibility. In so doing, it underscores the affinities between Blackburnian quasi-realism and moral realism as a moral doctrine. Finally, this paper contends—in line with my earlier work on these matters—that moral realism as a moral doctrine points to the need for some reorienting of meta-ethical enquiries rather than for the abandoning of them. (shrink)

During the nineteenth and early twentieth centuries, a wide variety of American writers proposed the existence of energies connecting human beings to cosmic processes. From varying points of view--scientific, philosophical, religious, and literary--they suggested that such energies would eventually result in the perfection of individual and collective bodies, assuming that assimilation into larger networks of being meant the expansion of humanity's powers and potentialities--a belief that continues to inform much posthumanist theory today. Universes without Us explores a lesser-known countertradition in (...) American literature. As Matthew A. Taylor's incisive readings reveal, the heterodox cosmologies of Edgar Allan Poe, Henry Adams, Charles Chesnutt, and Zora Neale Hurston reject the anthropocentric fantasy that sees the universe as a kind of reservoir of self-realization. For these authors, the world can be made neither "other" nor "mirror." Instead, humans are enmeshed with "alien" processes that are both constitutive and destructive of "us." By envisioning universes no longer our own, these cosmologies picture a form of interconnectedness that denies any human ability to master it. Universes without Us demonstrates how the questions, possibilities, and dangers raised by the posthuman appeared nearly two centuries ago. Taylor finds in these works an untimely engagement with posthumanism, particularly in their imagining of universes in which humans are only one category of heterogeneous thing in a vast array of species, objects, and forces. He shows how posthumanist theory can illuminate American literary texts and how those texts might, in turn, prompt a reassessment of posthumanist theory. By understanding the posthuman as a materialist cosmology rather than a technological innovation, Taylor extends the range of thinkers who can be included in contemporary conversations about the posthuman. (shrink)

The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, The Concept of Law, by arguing that law derives from a social rule, the so-called “rule of recognition.” But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not (...) just Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Ronald Dworkin, who argues that law necessarily synthesizes moral considerations with social facts. But which group’s practices ground each legal system? In particular, which group’s practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the “recognitional community” (my term): the group such that its rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law. This Article grapples with the tension between the positivist’s official- or judge-centered account of the recognitional community and the “popular constitutionalism” now so widely defended by constitutional scholars such as Larry Kramer, Robert Post, Reva Siegel, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I term this position “deep popular constitutionalism.” Indeed, it turns out that Dworkin’s account of law, in its ambition to generate associative moral obligations for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement – to the debate between deep popular constitutionalists and deep official or judicial supremacists -- is to dissolve it by providing a group-relative account of law. Social norms, such as norms of dress or eating, are clearly group-relative. A particular dressing or eating behavior may be socially appropriate relative to one group’s norms, yet socially inappropriate relative to another’s. This Article extends the group-relative view from social norms to law itself, with a particular focus on U.S. law and constitutionalism. Part I surveys the jurisprudential literature. It shows how Hart and successor positivists identify the rule of recognition as a social practice engaged in by officials or some subset of officials (judges), rather than citizens generally, and argues that Dworkin by contrast sees the citizenry as a whole as his recognitional community. Parts II and III defend a group-relative account of law. Part II argues, with reference to the U.S. experience, that multiple groups can simultaneously instantiate the kind of social fact that undergirds law, be it a convention, a social norm, a “shared cooperative activity” (SCA), or something else. At many points in U.S. constitutional history, multiple official or citizen groups, defined along departmental, partisan, regional, state-federal, religious, or other lines, have accepted competing rules of recognition for U.S. law. Part III argues that “law” functions, primarily, as either an explanatory or a normative construct, and that insisting on a single recognitional community for each legal system would be arbitrary, both for explanatory purposes and for normative purposes. Part IV considers the many implications of the group-relative account for U.S. constitutional theory – in particular, for popular constitutionalism. (shrink)

In this wide-ranging investigation of many prominent issues in contemporary legal, political, and moral philosophy, Matthew Kramer combines penetrating critiques with original theorizing as he examines the writings of numerous major theorists (including Ronald Dworkin, H. L. A. Hart, Alan Gewirth, David Lyons, Ronald Coase, John Finnis, Jules Coleman, Anthony Kronman, and Richard Posner). While Kramer argues with the rigor that is the hallmark of the tradition of analytic philosophy, his inquiries extend not only to that tradition but (...) also to such other traditions as Aristotelianism and Continental philosophy and Legal Realism. (shrink)

This chapter is an essay in a volume that examines constitutional law in the United States through the lens of H.L.A. Hart's "rule of recognition" model of a legal system. My chapter focuses on a feature of constitutional practice that has been rarely examined: how jurists and scholars argue about interpretive methods. Although a vast body of scholarship provides arguments for or against various interpretive methods -- such as textualism, originalism, "living constitutionalism," structure-and-relationship reasoning, representation reinforcement, minimalism, and so (...) forth -- very little scholarship shifts to the meta-level and asks: What are the considerations that jurists and scholars bring to bear in arguing that one or another interpretive method is legally favored? And can we "make sense" of this body of argument? Is there a model of legal discourse that both accurately describes how U.S. jurists and scholars actually argue about interpretive methods, and that vindicates this discourse (in the sense of seeing these actors as making valid arguments)? I find that Hart's rule-of-recognition model fails to describe or vindicate how U.S. jurists and scholars argue about interpretive methods. The problem, in a nutshell, is that Hart sees legal argument as asserting or presupposing the social fact of contemporary official acceptance of a rule of recognition. By contrast, jurists and scholars typically point to social facts other than contemporary official acceptance in arguing for the legal status of an interpretive method -- for example, the fact that the method is supported by Framers' intent, or by U.S. culture and tradition, or by precedent. Further, jurists and scholars very often argue that some interpretive method is legally favored even though the method is controversial. On Hart's model, such a claim is problematic -- because, on his model, the content of the rule of recognition is not controversial, but rather a matter of consensus among officials. The upshot may just be that Hart's model is a failure. However, another possibility is to adopt an "error theory" of U.S. constitutional discourse. It may perhaps be the case that U.S. jurists and scholars often make claims for the favorable legal status of some interpretive method that are inconsistent with the best understanding of the nature of law. (shrink)

In his collection of essays, Law as a Leap of Faith, John Gardner lucidly develops a powerful account of legal positivism, primarily via a careful interrogation of H. L. A. Hart’s work, with a particular focus on Hart’s most important text, The Concept of Law. In this essay, I raise a question regarding the significance of legal subjects’ understanding of themselves as legal subjects. I claim that as Gardner fills out the picture of what it takes to have (...) an ideal legal system, we will find that there is no requirement that subjects have any understanding of themselves as legal subjects, much less an understanding either of what the law requires of them or of the legal status with respect to officials that the law gives them. In particular, I argue that Gardner’s account of the law is too focused on the perspective of officials, and leaves out the perspective of legal subjects. This manifests what I call a unidirectional legal optic: the view of the law is the view from a single perspective, namely the perspective of the official. This is not an accurate picture of the law and so should not be presented as the paradigmatic account of law. (shrink)

I desire mercy, not sacrifice." Echoing Hosea, Jesus defends his embrace of the "unclean" in the Gospel of Matthew, seeming to privilege the prophetic call to justice over the Levitical pursuit of purity. And yet, as missional faith communities are well aware, the tensions and conflicts between holiness and mercy are not so easily resolved. At every turn, it seems that the psychological pull of purity and holiness tempts the church into practices of social exclusion and a Gnostic "flight" (...) from the world into a "too spiritual" spirituality. In an unprecedented fusion of psychological science and theological scholarship, Richard Beck describes the pernicious (and largely unnoticed) effects of the psychology of purity upon the life and mission of the church. (shrink)

"Featuring seventeen original essays on the ethics of Artificial Intelligence by some of the most prominent AI scientists and academic philosophers today, this volume represents the state-of-the-art thinking in this fast-growing field and highlights some of the central themes in AI and morality such as how to build ethics into AI, how to address mass unemployment as a result of automation, how to avoiding designing AI systems that perpetuate existing biases, and how to determine whether an AI is conscious. As (...) AI technologies progress, questions about the ethics of AI, in both the near-future and the long-term, become more pressing than ever. Should a self-driving car prioritize the lives of the passengers over the lives of pedestrians? Should we as a society develop autonomous weapon systems that are capable of identifying and attacking a target without human intervention? What happens when AIs become smarter and more capable than us? Could they have greater than human moral status? Can we prevent superintelligent AIs from harming us or causing our extinction? At a critical time in this fast-moving debate, thirty leading academics and researchers at the forefront of AI technology development come together to explore these existential questions, including Aaron James, Allan Dafoe, Andrea Loreggia, Andrew Critch, Azim Shariff, Carrick Flynn, Cathy O'Neil, Eliezer Yudkowsky, Eric Schwitzgebel, Frances Kamm, Francesca Rossi, Hanna Gunn, Iyad Rahwan, Jessica Taylor, JF Bonnefon, K. Brent Venable, Kate Devlin, Mara Garza, Nicholas Mattei, Nick Bostrom, Patrick LaVictoire, Peter Asaro, Peter Railton, S. Matthew Liao, Shannon Vallor, Stephen Wolfram, Steve Petersen, Stuart Russell, Susan Schneider, Wendell Wallach "--. (shrink)

This essay discusses the passing of two figures important to Ayn Rand studies: Allan Gotthelf and Barbara Branden. It also contextualizes some of the essays published in the current issue.

John Rawls’s political liberalism and its ideal of public reason are tremendously influential in contemporary political philosophy and in constitutional law as well. Many, perhaps even most, liberals are Rawlsians of one stripe or another. This is problematic, because most liberals also support the redefinition of civil marriage to include same-sex unions, and as I show, Rawls’s political liberalism actually prohibits same- sex marriage. Recently in Perry v. Schwarzenegger, however, California’s northern federal district court reinterpreted the traditional rational basis review (...) in terms of liberal neutrality akin to Rawls’s “public reason,” and overturned Proposition 8 and established same-sex marriage. (This reinterpretation was amplified in the 9th Circuit Court’s decision upholding the district court on appeal in Perry v. Brown.) But on its own grounds Perry should have drawn the opposite conclusion. This is because all the available arguments for recognizing same-sex unions as civil marriages stem from controversial comprehensive doctrines about the good, and this violates the ideal of public reason; yet there remains a publicly reasonable argument for traditional marriage, which I sketch here. In the course of my argument I develop Rawls’s politically liberal account of the family by drawing upon work by J. David Velleman and H. L. A. Hart, and discuss the implications of this account for political theory and constitutional law. (shrink)

This volume is based on papers presented at a conference on defeasibility in ethics, epistemology, law, and logic that took place at the Goethe University in Frankfurt in 2010. The subtitle (“Knowledge, Agency, Responsibility, and the Law”) better reflects the content than does the title of the original conference. None of the papers focuses directly or primarily on defeasible reasoning in logic, though a few touch on this indirectly. Nor are the papers evenly split among the topics. Six are primarily (...) about epistemology, four about responsibility, and one each focuses on agency and the law. (shrink)

The natural based view of the firm using Hart (1995) is applied to firm responses in the Carbon Disclose Project (CDP) database. A large cross sectional sample(n=573) of North American and European firms is divided into 3 categories of proactivity to the climate change issue using 8 indicators of four resource domains. Results are presented along geographic and size dimensions.