Demystifying Legal Reasoning defends the proposition that there are no special forms of reasoning peculiar to law. Legal decision makers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. This book addresses common law reasoning when prior judicial decisions determine the law, and interpretation of texts. In both areas, the popular view that legal decision makers practise special forms of reasoning is false.

Proposing and consenting to sex are things that ordinary people manage to do all the time, yet legal regulation of sex seems to be an intractable problem. No one is satisfied with rape law, but no one knows quite what to do about it.

Precedents are judicial decisions that form the bases of further judicial decisions by constraining those decisions. There are two aspects to the constraints exerted by precedent decisions: the scope of the constraint and the strength of the constraint. The scope refers to the range of decisions that are affected by the precedent. The strength refers to the conditions under which a court can escape being bound by the precedent. Models of precedential scope are discussed and evaluated, and the question of (...) strength is analyzed.Resumen:Los precedentes son decisiones judiciales que constituyen la base de decisiones judiciales posteriores, al vincularlas. Hay dos aspectos de la vinculación ejercida por las decisiones de precedente: el alcance de la vinculación y la fuerza de la vinculación. El alcance se refiere al rango de decisiones que se ven afectadas por el precedente. La fuerza se refiere a las condiciones bajo las cuales un tribunal obligado por el precedente puede ignorarlo. En este artículo se discuten y evalúan algunos modelos del alcance del precedente y se analiza la cuestión de su fuerza. (shrink)

Actors may be called on to judge their reasons for action at two different points in time: once when they form an intention to act in the future and again at the time of action. At the time the actor forms her intention, her perspective is a general one, encompassing a range of possible circumstances that cannot be narrowed or fully specified in advance of action. At time of action, the actor's perspective is particularized, with more evidence available about reasons (...) for action. This difference in perspective presents a dilemma for rational agents. In many contexts, reliable advance planning has great value. It allows for intra-personal and interpersonal coordination and minimizes bias in favor of salient or emotionally charged facts. At the time of action, additional evidence about the context of the act clarifies, or appears to clarify, current reasons for action. I describe this dilemma in two contexts: rule-following and promissory commitment. In each case there may be significant practical reasons for agents to stand by their original intentions, treating them as exclusionary reasons for action. Yet, if the agent revisits her intentions at the time of action, her reasons for action may support, or appear to support, a change in course. I begin by examining theories of practical rationality that extend rationality over time and thus permit agents to act on their initial intentions. Understood in this way, practical rationality may require agents to follow rules or honor promises without further consideration of reasons for action. I argue, however, that on a plausible understanding of epistemic rationality and epistemic responsibility to respond to evidence, acting without reflection may be epistemically irrational. If this is correct, then the dilemma of general and particular decisionmaking persists, and affects important aspects of human life. We manage only by being imperfectly irrational. (shrink)

One key premise in Shapiro's book Legality is that rationality requires those who have accepted the master plan for a system of law to obey the system's rules. In this paper, I question this premise, arguing instead that although it may be rational for agents to commit to follow the system's rule in all (or most) cases to which they apply, it is not rational for agents to follow the rules in fact when the rules appear to require the wrong (...) outcomes in particular cases. My argument is based largely on epistemic responsibility, which I view as an element of rationality. (shrink)

Liberalism is a wonderful theory, but its adherents have a difficult time explaining why. In his Tanner Lecture entitledFoundations of Liberal Equality, Ronald Dworkin proposes to defend liberalism in a new way. Dworkin is not content to view liberalism as a political compromise in which people set aside their personal convictions in the interest of social peace. Instead, he undertakes to make liberal political theory “continuous” with personal ethics, by describing an ethical position that endorses liberalism as a matter of (...) conviction. (shrink)

This essay examines the ambition to taxonomize law and the different methods a legal taxonomer might employ. Three possibilities emerge. The first is a formal taxonomy that classifies legal materials according to rules of order and clarity. Formal taxonomy is primarily conventional and has no normative implications for judicial decision-making. The second possibility is a function-based taxonomy that classifies laws according to their social functions. Function-based taxonomy can influence legal decision-making indirectly, as a gatekeeping mechanism, but it does not provide (...) decisional standards for courts. Its objective is to assist in analysis and criticism of law by providing an overview of the body of legal doctrine. The third possibility is a reason-based taxonomy that classifies legal rules and decisions according to the moral principles or “legal principles” thought to justify them. Reason-based taxonomy of this type offers courts a set of high-level decisional rules drawn from legal data. Its objective is to guide courts in deciding new cases and evaluating precedents. A predominantly formal taxonomy facilitates legal analysis and communication. A functional taxonomy can assist those who make and apply law by providing a purposive overview of the field. Reason-based taxonomy may be useful to lawmakers but is unhelpful when offered as a guide to adjudication of disputes. (shrink)

Judicial review of statutes on constitutional grounds is affected by a cluster of doctrinal practices that are generally accepted, but not very well explained, by the courts and not entirely consistent with each other. Courts usually judge statutes rather than as written; 1 they favor of valid applications of statutes from invalid or possibly invalid applications when possible; 2 and they interpret statutes in ways that avoid constitutional difficulty. 3 These overlapping practices presumably are intended to preserve legislation, and hence (...) are associated with a modest conception of the role of courts in government. Yet they are not always modest in operation. 4. (shrink)

Quantum mechanics is an extraordinarily successful scientific theory. But more than 100 years after it was first introduced, the interpretation of the theory remains controversial. This Element introduces some of the most puzzling questions at the foundations of quantum mechanics and provides an up-to-date and forward-looking survey of the most prominent ways in which physicists and philosophers of physics have attempted to resolve them. Topics covered include nonlocality, contextuality, the reality of the wavefunction and the measurement problem. The discussion is (...) supplemented with descriptions of some of the most important mathematical results from recent work in quantum foundations, including Bell's theorem, the Kochen-Specker theorem and the PBR theorem. (shrink)

Emily Brady provides a systematic account of aesthetics in relation to the natural environment, offering a critical understanding of what aesthetic appreciation ...

Susan Sherwin ist eine kanadische Philosophin und Wegbereiterin der feministischen Ethik. Bis zu ihrer Emeritierung war sie lange Zeit Professorin an der Dalhousie University in Halifax, Kanada. In ihrem Text „Foundations, Frameworks, Lenses: The Role of Theories in Bioethics“ von 1999 plädiert sie für eine kritische Reflexion gängiger Metaphern in der Bioethik.

In Cohen’s vision of the just society, there would be no need for unequalizing incentives so as to benefit the least well-off; instead, people would be motivated by an egalitarian ethos to work hard and in the most socially productive jobs. As such, Cohen appears to offer a way to mitigate the trade-off of equality for efficiency that often characterizes theorizing about distributive justice. This article presents an egalitarian challenge to Cohen’s vision of the just society. I argue that a (...) society where all internalized the egalitarian ethos would be one lacking equal respect among its members, in which certain groups lacked the grounds of self-respect. Section 1 defends equal respect and a form of equality of self-respect as values with broad-based appeal to egalitarians, and argues that a particular form of hierarchy would undermine both equal respect and the grounds of self-respect. Sections 2 and 3 reveal that just such a hierarchy would emerge in a society in which all had internalized the egalitarian ethos, in the case of both carers and the untalented. Thus, Cohen’s proposed society is shown to fail to unite equality and efficiency. Instead, Cohen’s society would be characterized by a lack of equality. (shrink)

For early modern metaphysician Anne Conway, the world comprises creatures. In some sense, Conway is a monist about creatures: all creatures are one. Yet, as Jessica Gordon-Roth has astutely pointed out, that monism can be understood in very different ways. One might read Conway as an ‘existence pluralist’: creatures are all composed of the same type of substance, but many substances exist. Alternatively, one might read Conway as an ‘existence monist’: there is only one created substance. Gordon-Roth has done the (...) scholarship a great favor by illuminating these issues in Conway. However, this article takes issue with Gordon-Roth's further view that Conway ‘oscillates’ between the extremes of existence pluralism and monism. In its place, I argue we should read Conway as a priority monist: the whole of creation is ontologically prior to its parts. (shrink)

There is significant evidence that the health needs of women and minorities have been neglected by a medical research community whose agendas and protocols tend to focus on more advantaged segments of society. In response, the National Institutes of Health and Food and Drug Administration in the United States have recently issued new policies aimed at increasing the utilization of women in clinical studies. As well, the U.S. Congress passed the NIH Revitalization Act of 1993, which specifically mandates increased inclusion (...) of women and racial and ethnic groups in clinical studies. On the face of it, such gender and race-specific policies would appear to be morally problematic because traditionally ethics opposes the use of sex or race as legitimate criteria for distributions of benefits or burdens in social policies. Hence, these policies pose some significant moral questions. Feminist ethics provides us with a framework for evaluating such policies because of its readiness to recognize that socially and politically significant factors such as sex and race are morally relevant in setting public policy. Of course, feminist ethics does not simply endorse all appeals to sex and race but only the policies in which attention to such factors will contribute to social justice. In this essay, I Identify some of the Important ethical questions that a feminist ethics perspective raises about research policies devised to promote the Inclusion of women in clinical studies. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Grand Manner Aesthetics in LandscapeFrom Canvas to CelluloidEmily E. Auger (bio)Popular films about the environment and related human and material resource issues, particularly colonialism, tend to enhance the appeal of their subject matter by aesthetically transforming it according to audience preferences and tastes. Such mediating strategies are perhaps too familiar to contemporary artists of all types who would prefer to work beyond the limits of what their readers or (...) viewers are prepared to tolerate as entertainment, but the particular emphases and accommodations made by film artists to convey messages about the environment are little changed from those strategies used by painters over the past three centuries to a similar end. The methods by which environmental issues are aestheticized in late-twentieth-century film is directly and historically related to those established for grand manner painters by Nicholas Poussin (1594-1665) and taught at the French academy from the seventeenth through the nineteenth centuries. That these fundamentals were part of the training of artists who would be willing and able to enhance the glory of Louis XIV's absolutist monarchy seems not to have undermined the popular enthusiasm their association with the "classical" past generated outside of France. Thus, the grand manner ideal was repeated, elaborated, and adapted by subsequent British and American artists, teachers, and aestheticians, both amateur and professional, including Joshua Reynolds (1723-92), president of the British academy; theoretician Edmund Burke (1729-97); and such American painters as Benjamin West (1738-1820), Thomas Cole (1801-48), Frederic Church (1826-1900), and Albert Bierstadt (1830-1902).Examples of filmic adaptations of grand manner aesthetics considered here include English director John Boorman's The Emerald Forest (1985) and Anglo-French director Roland Joffé's The Mission (1986), both British productions; Kevin Costner's Dances with Wolves (1990) and John McTiernan's [End Page 96] Medicine Man (1992), both American productions with American directors; and Australian director Bruce Beresford's Black Robe (1991), a Canadian/Australian production based on Irish-born, Canadian novelist Brian Moore's best-selling novel of the same title (1985). While it might be argued that these films merely show the adaptation of academy-based grand manner ideals and principles to new imperialist interests, this article demonstrates how they educate and draw public sympathy to global environmental concerns, albeit with reference to a recognizably Western aesthetic tradition. Thus, the interest of this study to educators and students of the visual arts is twofold: first, it demonstrates the continued adaptation and application of aesthetic principles originally developed in the seventeenth century to a technology-based medium; and second, it shows how those aesthetic principles are currently applied in film to direct and modulate public opinion on matters well beyond the domain of pure or theoretical aesthetics.The grand manner aesthetic, first defined with reference to seventeenth-century painting and still apparent in twentieth-century film, is largely attributable to Poussin since he was an artist who wrote—and wrote well—about his understanding of artistic quality and priorities. He was deeply committed to classicism; he thought the elements of a painting should be idealized rather than realistic and particularized, that those elements should be clearly delineated in a linear manner, that exotic subjects and excessive color should be avoided as both appeal too much to the senses and not enough to the mind, and that figures should always predominate over landscape. Poussin's ideals became the model for students training at the French Academy, an institution officially formed in 1648 under the direct control of the government. Aspiring academicians were exhorted to produce images that were usually composites of the better, and sometimes imagined, aspects of the appearance, character, and deeds of the fictional and historical people, events, and locations that were their subjects. They were never allowed to forgot the hierarchy of value that placed genre painting forever below history painting, yet it cannot have escaped their notice that a certain number of well-executed examples of the lowly still life, domestic interior, and picturesque landscape on the exhibition walls made the "grandness" of more ambitious works more apparent by contrast.The French Academy soon became the envy of foreign upper-level bureaucrats cognizant... (shrink)

Inuit artists espouse aesthetic values which are indicative of the degree of their involvement with the western art world and of the non-artistic cultural values which they wish to convey and perpetuate in their own communities. It is in this latter expression that Inuit aesthetics may be studied as a conveyor of Inuit rather than non-Inuit culture. In this paper, the statements made by Inuit woman artists from the Keewatin district are analysed with reference to the values associated with contemporary (...) mainstream fine art and the artists' own assertions regarding the importance of non-artistic values in the art-making process. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Hypatia 16.3 (2001) 172-176 [Access article in PDF] Book Review Diagnosis: Difference: The Moral Authority of Medicine Diagnosis: Difference: The Moral Authority of Medicine. By Abby L. Wilkerson. Ithaca: Cornell University Press, 1998. In this compact volume, Abby Wilkerson makes several important contributions to the burgeoning literature of feminist (bio)ethics by providing substantive arguments in support of some of the key intuitive beliefs that are central to much feminist (...) bioethics thinking. Most centrally, she carefully fleshes out a feminist case for re-framing traditional bioethics approaches to the relation between health and justice. Particularly valuable is her richly detailed argument establishing the importance of bringing to the realm of health and health care Iris Marion Young's (1990) important insight that justice involves far more than questions of distribution.At the same time, Wilkerson demonstrates another major feminist tenet: that ethics and epistemology are intimately related. This connection is developed [End Page 172] through a second major theme in which she systematically tracks medicine's tendency to extend its accepted epistemic authority over physical ailments into a general authority over many other aspects of life. She documents examples of medicine's success in leveraging its scientific knowledge about certain aspects of the body into a broader ideological vision through which it claims epistemic authority in the personal and moral realm. By making explicit the gaps between medical knowledge and moral knowledge, she is able to challenge the moral authority and social power that are now granted to medical experts.While these arguments are important, they are not the whole story of the book, for its message is as much about process in bioethics as it is about conclusions. Wilkerson insists that the specific perspective of the theorist affects her/his reasoning. She demonstrates the importance of this fact by using her own distinct position as a bisexual woman to make visible the implicit acceptance and perpetuation of several ideological norms by those in dominant positions in both medicine and bioethics. The central method of the book is what she calls "material-semiotic." It involves the assumption that all human experience is mediated by culture, and the body (specifically the medicalized body) must be recognized as a political site subject to a variety of social values. We must, therefore, attend to the cultural meanings of health and illness and explore the ways that society labels and responds to these conditions. This requires investigation of the specific bodily (material) effects of these meanings in both individual and social experience.The book begins with the epistemological frame of the argument in which Wilkerson claims that medicine is deeply infected by the values and biases of the dominant culture, including its tendencies towards sexist, racist, classist, homophobic, and ablist attitudes. She explores ways in which medical theory and practice stigmatize bodily experiences common to women (in gynecology, obstetrics, and the treatment of victims of sexual or domestic violence). Medicalizing so many aspects of women's experience has the effect of obscuring women's subjective experiences and replacing them with medicine's normative perspectives of appropriate psychological norms. Moreover, the norm of femaleness promoted is a heterosexual, middle class, white variety such that other forms of social difference (e.g., non-white, non-heterosexual) must then also be medicalized and stigmatized; that is, the medical model requires explanations of difference that render pathological most variations on the privileged norm. Hence, alternative sexualities, like differences in class, abilities, race, and gender are interpreted through a medical lens that is thoroughly value-laden. In such ways, the epistemological authority granted to medicine is conflated into an unjustified form of moral authority. Although similar biases are common to every powerful social institution in the United States, they are especially pernicious within medicine because of the enormous influence it exerts in shaping knowledge about the nature of difference between social [End Page 173] groups. This immense social power may be directed towards reducing inequalities and promoting social justice, but, all too often, it is used to convey beliefs and norms that serve the interests of the privileged.Wilkerson's criticism is not reserved... (shrink)

This book reconstructs Heidegger’s philosophy of time by reading his work with and against a series of key interlocutors that he nominates as being central to his own critical history of time. In doing so, it explains what makes time of such significance for Heidegger and argues that Heidegger can contribute to contemporary debates in the philosophy of time. Time is a central concern for Heidegger, yet his thinking on the subject is fragmented, making it difficult to grasp its depth, (...) complexity, and promise. Heidegger traces out a history that focuses on the conceptualisations of time put forward by Aristotle, Plotinus, Augustine, Kant, Hegel, Bergson, and Husserl—an “alternative history of time” that challenges how time has been defined and studied within both philosophy and the sciences. This book explores what happens when we take seriously Heidegger’s claim that these seven figures are essential to any understanding of time, setting out what this can tell us about existence, possibility, and philosophy as a historical discipline. Heidegger’s Alternative History of Time will appeal to scholars and advanced students working on Heidegger, phenomenology, the philosophy of time, and the history of philosophy. (shrink)

The paper investigates the significance of the question of the fetus's status as a person for resolving the moral issues of abortion. It considers and evaluates several proposed solutions to this question. It also attempts to explain how different questions about the permissibility of abortion are appropriate to discussions at different levels of decision-making: the pregnant woman, the health professional, and the social policy level. The author's own conclusions to all these questions are offered along with other popular views.

"A collection of essays in feminist philosophy.

In The Sublime in Modern Philosophy: Aesthetics, Ethics, and Nature, Emily Brady takes a fresh look at the sublime and shows why it endures as a meaningful concept in contemporary philosophy. In a reassessment of historical approaches, the first part of the book identifies the scope and value of the sublime in eighteenth-century philosophy, nineteenth-century philosophy and Romanticism, and early wilderness aesthetics. The second part examines the sublime's contemporary significance through its relationship to the arts; its position with respect (...) to other aesthetic categories involving mixed or negative emotions, such as tragedy; and its place in environmental aesthetics and ethics. Far from being an outmoded concept, Brady argues that the sublime is a distinctive aesthetic category which reveals an important, if sometimes challenging, aesthetic-moral relationship with the natural world. (shrink)

There is a long tradition, in the history and philosophy of science, of studying Kant’s philosophy of mathematics, but recently philosophers have begun to examine the way in which Kant’s reflections on mathematics play a role in his philosophy more generally, and in its development. For example, in the Critique of Pure Reason , Kant outlines the method of philosophy in general by contrasting it with the method of mathematics; in the Critique of Practical Reason , Kant compares the Formula (...) of Universal Law, central to his theory of moral judgement, to a mathematical postulate; in the Critique of Judgement , where he considers aesthetic judgment, Kant distinguishes the mathematical sublime from the dynamical sublime. This last point rests on the distinction that shapes the Transcendental Analytic of Concepts at the heart of Kant’s Critical philosophy, that between the mathematical and the dynamical categories. These examples make it clear that Kant's transcendental philosophy is strongly influenced by the importance and special status of mathematics. The contributions to this book explore this theme of the centrality of mathematics to Kant’s philosophy as a whole. This book was originally published as a special issue of the Canadian Journal of Philosophy. (shrink)

Any successful interpretation of quantum mechanics must explain how our empirical evidence allows us to come to know about quantum mechanics. In this article, we argue that this vital criterion is not met by the class of ‘orthodox interpretations,’ which includes QBism, neo-Copenhagen interpretations, and some versions of relational quantum mechanics. We demonstrate that intersubjectivity fails in radical ways in these approaches, and we explain why intersubjectivity matters for empirical confirmation. We take a detailed look at the way in which (...) belief-updating might work in the kind of universe postulated by an orthodox interpretation, and argue that observers in such a universe are unable to escape their own perspective in order to learn about the structure of the set of perspectives that is supposed to make up reality according to these interpretations. We also argue that in some versions of these interpretations it is not even possible to use one’s own relative frequencies for empirical confirmation. Ultimately we conclude that it cannot be rational to believe these sorts of interpretations unless they are supplemented with some observer-independent structure which underwrites intersubjective agreement in at least certain sorts of cases. (shrink)

Physicists are increasingly beginning to take seriously the possibility of laws outside the traditional time-evolution paradigm; yet many popular definitions of determinism are still predicated on a time-evolution picture, making them manifestly unsuited to the diverse range of research programmes in modern physics. In this article, we use a constraint-based framework to set out a generalization of determinism which does not presuppose temporal evolution, distinguishing between strong, weak and delocalised holistic determinism. We discuss some interesting consequences of these generalized notions (...) of determinism, and we show that this approach sheds new light on the long-standing debate surrounding the nature of objective chance. (shrink)

Recently there have emerged an assortment of theorems relating to the ‘absoluteness of emerged events,’ and these results have sometimes been used to argue that quantum mechanics may involve some kind of metaphysically radical non-absoluteness, such as relationalism or perspectivalism. However, in our view a close examination of these theorems fails to convincingly support such possibilities. In this paper we argue that the Wigner’s friend paradox, the theorem of Bong et al and the theorem of Lawrence et al are all (...) best understood as demonstrating that if quantum mechanics is universal, and if certain auxiliary assumptions hold, then the world inevitably includes various forms of ‘disaccord,’ but this need not be interpreted in a metaphysically radical way; meanwhile, the theorem of Ormrod and Barrett is best understood either as an argument for an interpretation allowing multiple outcomes per observer, such as the Everett approach, or as a proof that quantum mechanics cannot be universal in the sense relevant for this theorem. We also argue that these theorems taken together suggest interesting possibilities for a different kind of relational approach in which _interaction_ states are relativized whilst observed events are absolute, and we show that although something like ‘retrocausality’ might be needed to make such an approach work, this would be a very special kind of retrocausality which would evade a number of common objections against retrocausality. We conclude that the non-absoluteness theorems may have a significant role to play in helping converge towards an acceptable solution to the measurement problem. (shrink)

Sex selection technologies have become increasingly prevalent and accessible. We can find them advertised widely across the Internet and discussed in the popular media—an entry for “sex selection services” on Google generated 859,000 sites in April 2004. The available services fall into three main types: preconception sperm sorting followed either by intrauterine insemination of selected sperm or by in vitro fertilization ; preimplantation genetic diagnosis, by which embryos created by IVF are tested and only those of the desired sex are (...) transferred to the woman's uterus; and prenatal testing of fetuses through ultrasound or chromosomal analysis, followed by selective abortion of fetuses detected to be of the undesired sex. (shrink)

Dementia patients in the moderate-late stage of the disease can, and often do, express different preferences than they did at the onset of their condition. The received view in the philosophical literature argues that advance directives which prioritize the patient’s preferences at onset ought to be given decisive moral weight in medical decision-making. Clinical practice, on the other hand, favors giving moral weight to the preferences expressed by dementia patients after onset. The purpose of this article is to show that (...) the received view in the philosophical literature is inadequate and is out of touch with real clinical practice. I argue that having dementia is a cognitive transformative experience and that preference changes which result from this are legitimate and ought to be given moral weight in medical decision-making. This argument ought to encourage us to reduce our confidence in the moral weight of advance directives for dementia patients. (shrink)

In this article we set out to understand the significance of the process matrix formalism and the quantum causal modelling programme for ongoing disputes about the role of causation in fundamental physics. We argue that the process matrix programme has correctly identified a notion of ‘causal order’ which plays an important role in fundamental physics, but this notion is weaker than the common-sense conception of causation because it does not involve asymmetry. We argue that causal order plays an important role (...) in grounding more familiar causal phenomena. Then we apply these conclusions to the causal modelling programme within quantum foundations, arguing that since no-signalling quantum correlations cannot exhibit causal order, they should not be analysed using classical causal models. This resolves an open question about how to interpret fine-tuning in classical causal models of no-signalling correlations. Finally we observe that a quantum generalization of causal modelling can play a similar functional role to standard causal reasoning, but we emphasize that this functional characterisation does not entail that quantum causal models offer novel explanations of quantum processes. (shrink)

Both Stoic and Buddhist ethics are deeply concerned with the ethical dangers of attachments. Three dangers stand out: (1) the destructive consequences of overwhelming emotionality, brought on by attachment, both for oneself and others, (2) the dangers to one's agency posed by strongly held, but ultimately unstable, attachments, and (3) the threat to virtuous emotional engagement with others caused by one's own attachment to them. The first two kinds of moral dangers have informed Stoic models of detachment (see Wong (2006). (...) In this paper I draw on Buddhist texts to present a model of detachment that responds primarily to the third moral danger of attachment, the danger of not loving well. (shrink)