Judging Virtuously: Developing an Empathic Capacity for Perceptual Sensitivity: A Review of Amalia Amaya and Ho Hock Lai , Law, Virtue and Justice.

This paper considers the similarities between Adam Smith's device of the impartial spectator and the use of perspectival devices in common law reasoning. The paper adopts a reading of Smith's device as one involving the exercise of imaginative sympathy by an ordinarily virtuous, and culturally and historically situated, spectator who does not have a stake in the outcome of the scene being evaluated. The point here is to show that the impartial spectator is 1) a device of common, ordinary virtue (...) – both in the sense of being located in a culture at a specific point in time, and in the sense of possessing only moderate, achievable virtues ; and 2) a device that enables a focus on a situation, which requires imaginative work, emotional engagement and careful, particularised description. Having so modelled Smith's device, the paper shows the similarities between it and the use of perspectival devices in common law reasoning, specifically here via the ‘right-thinking member of society' test in defamation law. (shrink)

This essay argues that the practical reason approach to the study of social conventions fails to adequately account for the fluency of social action in environments that we experience as familiar. The practical reason approach, articulated most recently in Andrei Marmor’s Social Conventions: From Language to Law does help us, though not wholly adequately, to understand how we tend to react to, and experience, unfamiliar situations or unfamiliar behaviors, that is, those situations in which a certain practice becomes problematic or (...) is problematized, or where we are obliged to, or moved to, justify or deliberate. The reason why the practical reason approach is not wholly adequate when it comes to understanding unfamiliar situations or unfamiliar behaviors is that it tends to subsume the unfamiliar under the familiar, that is, it tends to negatively evaluate anything that is deemed to be not in accordance with the rules and reasons already familiar to the observer. This excludes the possibility of the observer having to transform himself or herself, and thus change what is familiar to him or her. (shrink)

Wittgenstein´s Tractatus Logico-Philosophicus can be regarded as the first attempt to use the concept of possible world in the analysis of language. Since Wittgenstein does not use the expression possible world, the author of this paper draws attention to those parts of Tractatus that presuppose such concept. Then the author concentrates on the relation of Wittgenstein´s conception of possible world to the metaphysics of Tractatus. For Wittgenstein, the possible world is any combination of state of affairs. On the other hand, (...) some combinations of states of affairs are by the metaphysics of Tractatus excluded as illogical. The same is true of all possible distributions of attributes to ordered sets of objects that constitute states of affairs. It seems that Wittgenstein did not recognize these difficulties. (shrink)

This paper discusses a much-neglected aspect of Neil MacCormick's theory of legal reasoning, namely what he calls ‘consequential reasoning’. For MacCormick, consequential reasoning is both an omnipresent feature of legal reasoning in England and Scotland, as well as being a valuable one. MacCormick articulates the value of consequential reasoning by seeing it as contributing to the forward-looking requirement of formal justice, ie, of deciding the instant case on grounds that one is willing to adopt when deciding future similar cases. This (...) paper situates consequential reasoning in the overall picture of legal reasoning MacCormick develops in Legal Reasoning and Legal Theory, going on to show the evolution of his view on consequential reasoning in later work, which culminates in Rhetoric and the Rule of Law. It is argued that MacCormick's later view of consequential reasoning, ie, of a process of testing possible rulings by evaluating the acceptability or unacceptability.. (shrink)

The issue of openness/secrecy has not received adequate attention in current discussion on the public sphere. Drawing on ideas in critical theory, political sociology, and cultural sociology, this article explores the cultural and political dynamics involved in the public sphere in modern society vis-à-vis the practice of open/secret politics by the state. It argues that the media, due to their publicist quality, are situated at the interface between publicity and secrecy, which thereby allows for struggles over the boundary of state (...) openness/secrecy in the public sphere. A theory of boundary politics is introduced that is contextualized in the relationship among state forms, the means of making power visible/invisible , and symbolic as well as discursive practices in the public sphere. In explaining the dynamics of boundary politics over openness/secrecy, three ideal-types of boundary creation are conceptualized: open politics, secrecy, and leak. The theory is illustrated with a case study of the Patten controversy in Hong Kong. (shrink)

This paper argues that the exercise of the imagination requires us 1) to attempt to describe features of a certain practice that appear, at first blush, natural and obvious; 2) to understand that that which appears natural and obvious could be otherwise; and 3) to be open to the introduction of changes to that which appears natural and obvious. Imagination, in this sense, is quite different to creativity. The latter works on the basis of the introduction of variations to settled (...) phenomena. This exercise of creativity is important, but ultimately, it contributes principally to the stability and identity of a community and reinforces its most firmly established features. Imagination, on the other hand, is more difficult, for it strikes at the very heart of that which is settled. Changes to that which is settled may not only be resisted, but may also be violently opposed. And yet, it is precisely the very ability and willingness to be open to such changes that may be of the most ethical and political significance. These differences between creativity and imagination are illustrated in the context of the practice of philosophy. (shrink)

This paper considers whether, and if so how, the modelling of joint action in social philosophy – principally in the work of Margaret Gilbert and Michael Bratman – might assist in understanding and applying the concept of concerted practices in European competition law. More specifically, the paper focuses on a well-known difficulty in the application of that concept, namely, distinguishing between concerted practice and rational or intelligent adaptation in oligopolistic markets. The paper argues that although Bratman's model of joint action (...) is more psychologically plausible and phenomenologically resonant, its less demanding character also makes it less useful than Gilbert's in our understanding of the legal concept of concerted practice and in dealing with the above difficulty. The paper proceeds in two parts: first, a discussion of the concept of concerted practices in European competition law; and second, a discussion of Gilbert and' Bratman's models of joint action, including a comparative assessment of their ability to provide an evidentiary target and an evidentiary platform for conceited practices. (shrink)

Morality seems important, in the sense that there are practical reasons — at least for most of us, most of the time — to be moral. A central theoretical motivation for consequentialism is that it appears clear that there are practical reasons to promote good outcomes, but mysterious why we should care about non-consequentialist moral considerations or how they could be genuine reasons to act. In this paper we argue that this theoretical motivation is mistaken, and that because many arguments (...) for consequentialism rely upon it, the mistake substantially weakens the overall case for consequentialism. We argue that there is indeed a theoretical connection between good states and reasons to act, because good states are those it is fitting to desire and there is a conceptual connection between the fittingness of a motive and reasons to perform the acts it motivates. But while some of our motives are directed at states, others are directed at acts themselves. We contend that just as the fittingness of desires for states generates reasons to promote the good, the fittingness of these act-directed motives generates reasons to do other things. Moreover, we argue that an act’s moral status consists in the fittingness of act-directed feelings of obligation to perform or avoid performing it, so the connection between fitting motives and reasons to act explains reasons to be moral whether or not morality directs us to promote the good. This, we contend, de-mystifies how there could be non-consequentialist reasons that are both moral and practical. (shrink)

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

This paper offers a brief reply to William Morgan’s critique of my review of Andrei Marmor’s Social Conventions . Morgan’s principal critique is that I am wrong to think that the constitutive rules of games do not determine their aims and values. In particular, with regards to chess, Morgan argues that the rules of chess determine that the aim of playing chess is to win the game. I defend my position that one can play the game of chess without the (...) aim of winning - e.g. one can aim to play beautifully, and not, as Morgan suggests, only to win beautifully. More broadly, I argue for an account of games that is sensitive to the gap between playing and the game’s constitutive rules. Ultimately, the argument points to the descriptive priority for the social sciences of the concept of ‘play’ over the concept of games understood as ‘rule-governed domains’. (shrink)

『윤리학, 그 주제와 논점』은 도덕원리, 도덕문제, 도덕판단 등 도덕에 대한 철학적 성찰과 도덕의 보편적 원리와 근거에 대해 탐구한 개설서이다. 이 책은 기존 윤리학 저작과 달리 윤리학의 큰 주제를 도덕지식론, 도덕행위론, 도덕성 정당화론으로 구분하고, 윤리학 구성을 체계화하였다. 또한 메타윤리와 규범윤리를 거의 같은 비중으로 다루고 있다는 점이 기존 저작들과 차별화된다.

Author: Siwiec Marek Kazimierz Title: ZBIGNIEW HERBERT – TOWARDS MYSTERY OF SOCRATES (Zbigniew Herbert – ku tajemnicy Sokratesa) Source: Filo-Sofija year: 2010, vol:.11, number: 2010/2, pages: 7-28 Keywords: MYSTERY OF SOCRATES, ZBIGNIEW HERBERT, JOURNEY TO THE GREEK ROOTS (BEGINNINGS) TO THE EUROPEAN CULTURE AND SOURCES OF THE EUROPEAN HUMANITY Discipline: PHILOSOPHY Language: POLISH Document type: ARTICLE Publication order reference (Primary author’s office address): E-mail: www:In the essay the author follows Zbigniew Herbert’s path by asking a question: “What is a mystery (...) of Socrates?”. The author wants to present that Zbigniew Herbert in his books took a journey, a spiritual wander, to the Greek roots (beginnings) to the European culture and sources of the European humanity. He distinguishes the difference between ‘root’ (or ‘beginning’) from ‘source’. “The portrait of Socrates” by Herbert reflects the two main dimensions of poet’s creative as well as philosophical aspirations. Socrates represents different reflections on the human condition. He encompasses various – for many philosophers – unpredictable dimensions of human existence. He has ability to rational, intellectual examination of the world as well as tendency to investigate his artistic poetic work and vocation. However, the mystery of Socrates appears to be a source of creative thinking. (shrink)

This paper examines Georg Ernst Stahl's first book, the Zymotechnia Fundamentalis, in the context of contemporary natural philosophy and the author's career. I argue that the Zymotechnia was a mechanical theory of fermentation written consciously against the influential "fermentational program" of Joan Baptista van Helmont and especially Thomas Willis. Stahl's theory of fermentation introduced his first conception of phlogiston, which was in part a corpuscular transformation of the Paracelsian sulphur principle. Meanwhile some assumptions underlying this theory, such as the composition (...) of matter, the absolute passivity of matter and the "passions" of sulphur, reveal the combined scholastic and mechanistic character of Stahl's natural philosophy. In the conclusion I show that Stahl's theory of fermentation undermined the old fermentational program and paved the way for his dualist vitalism. (shrink)

This essay examines the use of fictions in the reasoning of the House of Lords and United Kingdom Supreme Court in the context of two recent lines of authority on English tort law. First, the essay explores the relevance of counter-factual scenarios to liability in the tort of false imprisonment, in the light of the Supreme Court decisions in Lumba and Kambadzi. The second series of decisions is on causation in negligence claims arising from asbestos exposure. These cases have revealed (...) fundamental, ongoing judicial disagreement about the nature and extent of the exceptions made to general principles. The cases are also shown to lend force to Del Mar’s argument about the diachronicity of legal fictions. Overall, it is argued that such fictions play an important role in common law reasoning. (shrink)