Is the nature of law to be formal procedure or to embody substantive value? This work deals with the traditional conflict in legal philosophy between positivistic and anti-positivistic theories of law. It examines the conflict with respect to seven central issues in legal philosophy--law as a reason for action, law and authority, the internal point of view to law, the acceptance of law, discretion and principle, interpretation and semantics, and law and the common good. This work argues that although this (...) conflict cannot be resolved, the true nature of law is revealed--not obscured--by this perennial situation. (shrink)

This chapter contains sections titled: Externalist Accounts Internalist Accounts Descriptivist Accounts Naturalized Jurisprudence Conclusion References.

Corporate behaviour is often regulated through the criminal law by means of reverse onus offences. Such offences are alleged to involve violations of the Presumption of Innocence. Such allegations almost always assume natural persons as defendants. The arguments supporting reverse onus offences are typically instrumental, to do with the importance of the social goals promoted and the ease of proof. The Presumption of Innocence is taken to be an autonomy right of natural persons and so not subject to being sidelined (...) for reasons of law enforcement expediency. Corporations, however, are not natural persons: they have no autonomy right not to be treated as means. It may well be, then, that reverse onus offences are justified in the case of corporate defendants. I argue that the Presumption is not violated by such offences in the case of corporate defendants. I develop a broad concept of the criminal justice system as an allocative system, and argue that reverse onus offences properly allocate the burden of proof for corporations. Specifically, I argue that the normative demand for legal innocence is sufficiently met by the availability of a due diligence defence; that the responsibility of corporations when prohibited harms occur is properly a form of outcome-responsibility; and that taking into account issues of reciprocity, legitimacy and power reverse onus offences justly allocate the burden of proof in the case of corporate defendants. (shrink)

This article is an extended critical review of a set of essays arguing for the deregulation of U.S. industry. The essays are by mostly lawyers and economists, not philosophers. The writers act as though non-market-based theories of distributive justice do not exist. Nonetheless, the essays are ingenious and sophisticated enough to present a considerable challenge to such theories. In criticism I discuss chiefly two broad themes — the considerations a non-market-based theory would adduce in rebuttal, and the use by the (...) writers of the existing legal framework. The book illustrates most forcefully the clash between rival philosophical visions of the Good Society. (shrink)

Roger A. Shiner; VII*—Wittgenstein and the Foundations of Knowledge, Proceedings of the Aristotelian Society, Volume 78, Issue 1, 1 June 1978, Pages 103–124, ht.

In lieu of an abstract, here is a brief excerpt of the content:Self-Predication and the "Third Man" Argument ROGER A. SHINER 1.1. IN COMMPm'mO on the 'Third Man' Argument (TMA), Proclus z produces the following line of thought. He argues that. if the relation of resemblance between Form and particular were symmetrical, the argument in question would be valid; the relation is not, however, symmetrical. Where a Form and particular are both alike, have the quality of likeness, the likeness of (...) that which is derived is not the same as the likeness of that from which it is derived, just because of the former's derivatory nature. Consequently, ~k tt~v ala01]x~ bttotoi3c0at ~re[vot~ (sc. xo~ ~Semv), abx~ 8~ xo6~ot~ oSr~xt, 'the sensible particulars resemble the Forms, but they are not in the same relation of resemblance to the particulars' (ibid., 913.29-30). That is to say, the bare relation of similarity may be symmetrical, but the relation of a similar copy to a similar original is not; the copy is 'a copy of' the original, but the original/s not 'a copy of' the copy. This way of defending the Theory of Forms against the TMA I shall for purposes of identification call the 'Ontological Defence'. It lays stress on the ontological difference between Form and particular in order to avoid the fatal implication that the relation between them is symmetrical. If we use the language of predication, the point is as follows: the TMA is valid, if the Forms have a given term predicated of them severally in exactly the same sense as it is predicated of their respective dependent particulars. This, however, is not the case, for the quality in virtue of which a given term is predicated of a given Form differs in ontological status from the quality in virtue of which that term is predicated of that Form's dependent particulars. Thus we see that underlying the Ontological x I am grateful for helpful comments on an earlier version of this paper to Professor Gilbert Ryle, Professor John F. Malcolm and two anonymous readers for this Journal. Since this paper went to press, the following relevant articles have appeared: G. Vlastos, "'Self Predication' in Plato's Later Period," Philosophical Review, LXXVIII (1969), 74-78, and "Plato's 'Third Man' Argument (Parm. 132al-b2): Text and Logic," Philosophical Quarterly, XIX (1969), 289-301; K. W. Rankin, "The Duplicity of Plato's Third Man," Mind, LXXVIII (1969), 178-197; T. O. Smith, "'The Theory of Forms, Relations and Infinite Regress," Dialogue, VIII (1969), 116-123. 2 Proelus, In Platonis Parmenidem, ed. V. Cousin, Paris, 1864; 912.27 ft. [3711 372 HISTORY OF PHILOSOPHY Defence is the following assumption--the fact that the Forms are self-predicating only causes problems for the Theory of Forms, if a given Form F and its corresponding particulars, a set of f things, have 'F' predicated of them univocally, are F in precisely the same sense. My thesis in this paper is that this latter assumption is false, it is, rather, quite sufficient for the Self-Predication Assumption (SPA) to be vicious, if 'F' is predicated of both Form and particular not equivocally. This is not the same as 'univocally', and furthermore it is not possible that Plato could have thought of the predication of a term of both Form and particular as equivocal, the only alternative left to him to escape the TMA. The SPA, therefore, is required for the Theory of Forms to make sense, and leads to an ineradicable defect in that Theory. 1.2. One minor terminological point must be noted before we proceed. There are two versions of the TMA in the Parmenides; the first runs from 131eS-132b2, and the second from 132c11-133a7. The second of these explicitly employs the language of copy-resemblance, 7mpdS~tytm ('paradigm'), 6lxoio)tta ('likeness'), ~tKao0~vat ('resemble') as an explication of ~t~0e~tq ('participation'): the first employs the lan~.,uage of cttx6 ~ xai3xa.., eIvat ('that by which things are...'), which, as Plato has already indicated (Phaedo 100d6-8), is deliberatety noncommittal as to the relation between Forms and particulars. I shall refer to the first argument as TMA(1) and the second... (shrink)

A deferred prosecution agreement, or DPA, allows a corporation, instead of proceeding to trial on a criminal charge, to settle matters with the state by acknowledging the facts on which any charge would be based, pay a reduced fine, and agree to change the way they conduct business. Critics of DPAs have suggested that, because the defendant corporation must pay a fine and submit to structural reform without having been found guilty at trial, DPAs violate the Presumption of Innocence. This (...) paper argues that they do not. The paper appeals to the role of civic trust in a liberal political community. The obligations a corporation assumes in a DPA can be framed as a reasonable retributive response to a breach by that corporation of the community’s laws, and an appropriate reassurance by that corporation to the community that such breaches will not reoccur. This framing is sufficient to deny that DPAs violate the Presumption of Innocence. (shrink)

How are we to understand criminal law reform? The idea seems simple—the criminal law on the books is wrong: it should be changed. But 'wrong’ how? By what norms 'wrong’? As soon as one tries to answer those questions, the issue becomes more complex. One kind of answer is that the criminal law is substantively wrong: that is, we assume valid norms of background political morality, and we argue that doctrinally the criminal law on the books does not embody those (...) norms. Another kind of answer is that the criminal law as it stands presupposes certain empirical facts, and yet those facts do not hold. Traditionally, criminal law reform has been informed by both these answers. Analytical theorists examine doctrine for its conceptual structure, and social scientists examine the actual workings of the criminal justice system. This tidy picture is, however, challenged by social constructivist accounts of the criminal law. They challenge the stability and conceptual purity of doctrine, and they challenge the objectivity of social science. On the basis of these challenges, they undermine the ambitions of traditional criminal law reform, and argue that the only reforms to the criminal law that matter are politicized ones—that criminal law reform is pointless unless it serves the interests of the marginalized and the dispossessed. It seems undeniable that in some sense our perceptions of crime in our society are indeed moulded by social forces, and that crime does not exist independently of the social structures and processes that help to define and control it. But why should those insights have the implications for our understanding of criminal law reform that they are alleged to have? How could it follow from those insights that criminal law reform either becomes radicalized or valueless? The aim of this paper is to show that what can legitimately be taken from the emphasis on the social constructedness of crime does not require wholesale abandonment of the traditional picture of criminal law reform, even though it may require some modifications of that picture. (shrink)

The article is a review of A.P. Simester, ed., Appraising Strict Liability. We strongly recommend the book for the sophistication of the contributors’ analyses, and the contribution the book makes to clarifying the normative issues at stake in strict liability legal regimes. The review focuses on the more philosophical essays in the book. The specific issues from the book identified in the review are: the rights-based character of the prohibition on conviction without moral fault; the importance of the principle of (...) proportionality; due diligence defences; the instrumental worth of strict liability in relation to quasi-criminal regulation; the faultiness of genuinely creating risks. (shrink)

Tom Stoppard is justly praised by many for what are perceived as his technical skills as a dramatist—his wit, his seriousness, his mastery of parody and pastiche, his impressive control of dramatic structure. Stoppard earns his place as a giant of modern drama from these qualities. They, however, are not what concern me here. His plays are also in various ways riddled with philosophy. My purpose in this paper is to examine the claim that he is a philosopher's dramatist, rather (...) than a dramatist's dramatist or an ordinary thinking man's dramatist. I am not concerned with how far Stoppard himself as a matter of biographical fact may wish to make this claim, although Stoppard has made no secret of his fascination with Philosophy. I make the claim myself in order both to offer an interpretation of certain dramatic texts and to raise certain questions about philosophical method. I hope to show that to understand certain ways in which Stoppard's plays are philosophical is to appreciate something profound about the way in which philosophy and drama are akin—that is, I hope to make critical and philosophical points, not historical or biographical points. (shrink)

It is something of a commonplace of Butlerian interpretation that the main interest and achievements of Butler's moral philosophy are in normative ethics, and not metaethics. He wishes to bring moral enlightenment to citizens and not, to philosophers, epistemological enlightenment. Nonetheless for that he makes a number of remarks which, if we were collecting for some bizarre purpose metaethical forms of words, we would note down and include in our collection. Thus he makes some progress towards the development of a (...) moral epistemology, a theory of moral judgment. My purpose here is to assess those steps, and to see how far the structure which results can be called a theory. I have the impression that much of the reluctance among scholars to allow that Butler does have a theory of moral judgment is caused by the metaethical blinkers that they themselves wear; what is in fact the beginnings of an unfashionable and unconventional theory is seen as unsophisticated confusion. But I shall not overdo praise of Butler. I shall suggest that Aristotle does a somewhat better job of developing this type of theory. (shrink)