Ronald Dworkin argues that disagreement in hard cases is ‘theoretical’ rather than empirical and of central importance to our understanding of law, showing ‘plain fact’ theories such as H. L. A. Hart’s sophisticated legal positivism to be false. The argument from theoretical disagreement targets positivism’s commitment to idea that the criteria a norm must meet to be valid in a given jurisdiction are constituted by a practice of convergent behavior by legal officials. The ATD suggests that in hard (...) cases there is no such pattern of convergent behavior. Positivists are divided over the force of the ATD. Much of this disagreement over the force of the ATD can be understood as disagreement over just what it is that legal officials disagreeing ‘theoretically’ are disagreeing about. Once the scope of empirical and theoretical disagreements are more accurately plotted, we will see that the actual disagreements that occur in hard cases are not ones which threaten a deeper and pervasive pattern of convergent behavior, one which focuses not upon rules specifying criteria of legal validity, but instead upon broad processes for making, interpreting, and applying law. Such an account remains positivist, relying on the social fact that there is such a consensus, but allows for considerable disagreement among legal officials deciding cases within such procedures. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Kant’s Transcendental Proof of RealismBrandon C. LookKenneth R. Westphal. Kant’s Transcendental Proof of Realism. New York: Cambridge University Press, 2004. Pp. x + 299. Cloth, $80.00.Westphal's book is a rich and exciting contribution to the field of Kant studies. Its claims run counter to much contemporary discussion of Kant's theoretical philosophy and indeed challenge some of Kant's fundamental doctrines, but the arguments are very compelling and therefore (...) likely to force us to rethink both the Critique of Pure Reason [CPR] and Kant's relevance to contemporary epistemology.The central point of this work is that, if we follow Kant's injunction to engage in reflection on our cognitive capacities, then we will be led not to Kantian transcendental idealism but to an unqualified realism about objects and events in space and time. The book's first three chapters are devoted to analyzing Kant's methodology and the much-overlooked idea of transcendental affinity. Westphal focuses on the Kantian duty of engaging in "transcendental reflection," which is "the action through which I make the comparison of representations in general with the cognitive power in which they are situated, and through which I distinguish whether they are to be compared with one another as belonging to pure understanding or to sensible intuition" (CPR, A 261/B 317). And he adds to this the more general methodological obligation of "epistemic reflection," or the duty to determine precisely our cognitive capacities and incapacities. If, then, we reflect on our representations, their origins in sensibility and the understanding, and on our powers to know things of ourselves and the world in general, then certain puzzles arise—puzzles that were confronted by Kant (and Hume and Hegel) but that have not received the attention they have deserved. Chief among these puzzles is our ability to identify single objects and events and track them in space through time. But, as Westphal is keen to point out, identifying any particular over time requires that we be able to re-identify that particular. Now, while this puzzle is addressed by Kant in the Transcendental Deduction and Analogies of Experience, it is important to see that there is a material condition necessary for the possibility of self-conscious experience of the world that is not fleshed out in great detail by Kant and seems to be completely overlooked in the literature on Kant, namely, "the presupposition of diversity in nature" and the homogeneity of its objects among themselves (CPR, A 657/B 685). In other words, the fact that we are able to associate our various sensations with each other at all (and thereby identify and re-identify objects) is due to their "transcendental affinity." And it is Westphal's contention that "on Kant's own principles, the transcendental affinity of the manifold of sensory intuition can only be reconstructed, but not constructed, by intellectual syntheses of the understanding" (91). Therefore, pace Kant, who held that only his transcendental idealism could explain the possibility of experience, Westphal argues that transcendental idealism runs afoul of many of Kant's own arguments and observations in the Transcendental Aesthetic and Transcendental Analytic and, more important, that transcendental affinity provides grounds for "realism sans phrase" (the author's phrase) about objects and events in space and time, and for the view that our mental states are determined by external objects. As Westphal puts it in his conclusion: "Kant's analysis of transcendental affinity is in fact a transcendental argument for mental content externalism" (266). [End Page 665]The second part of Westphal's argument revolves around a detailed examination of Kant's theses about transeunt causality and the nature of matter as expressed not only in the Critique of Pure Reason, but also in the Metaphysical Foundations of Natural Science and the Opus postumum. Roughly the problem is this: in order to have an adequately grounded metaphysics of nature, Kant needs not only the results of the Analogies of Experience, the transcendental causal thesis that every event has a cause, but also the metaphysical causal thesis that every physical event has an external physical cause. But, according to Westphal, in the Metaphysical Foundations... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Kant’s Transcendental Proof of RealismBrandon C. LookKenneth R. Westphal. Kant’s Transcendental Proof of Realism. New York: Cambridge University Press, 2004. Pp. x + 299. Cloth, $80.00.Westphal's book is a rich and exciting contribution to the field of Kant studies. Its claims run counter to much contemporary discussion of Kant's theoretical philosophy and indeed challenge some of Kant's fundamental doctrines, but the arguments are very compelling and therefore (...) likely to force us to rethink both the Critique of Pure Reason [CPR] and Kant's relevance to contemporary epistemology.The central point of this work is that, if we follow Kant's injunction to engage in reflection on our cognitive capacities, then we will be led not to Kantian transcendental idealism but to an unqualified realism about objects and events in space and time. The book's first three chapters are devoted to analyzing Kant's methodology and the much-overlooked idea of transcendental affinity. Westphal focuses on the Kantian duty of engaging in "transcendental reflection," which is "the action through which I make the comparison of representations in general with the cognitive power in which they are situated, and through which I distinguish whether they are to be compared with one another as belonging to pure understanding or to sensible intuition" (CPR, A 261/B 317). And he adds to this the more general methodological obligation of "epistemic reflection," or the duty to determine precisely our cognitive capacities and incapacities. If, then, we reflect on our representations, their origins in sensibility and the understanding, and on our powers to know things of ourselves and the world in general, then certain puzzles arise—puzzles that were confronted by Kant (and Hume and Hegel) but that have not received the attention they have deserved. Chief among these puzzles is our ability to identify single objects and events and track them in space through time. But, as Westphal is keen to point out, identifying any particular over time requires that we be able to re-identify that particular. Now, while this puzzle is addressed by Kant in the Transcendental Deduction and Analogies of Experience, it is important to see that there is a material condition necessary for the possibility of self-conscious experience of the world that is not fleshed out in great detail by Kant and seems to be completely overlooked in the literature on Kant, namely, "the presupposition of diversity in nature" and the homogeneity of its objects among themselves (CPR, A 657/B 685). In other words, the fact that we are able to associate our various sensations with each other at all (and thereby identify and re-identify objects) is due to their "transcendental affinity." And it is Westphal's contention that "on Kant's own principles, the transcendental affinity of the manifold of sensory intuition can only be reconstructed, but not constructed, by intellectual syntheses of the understanding" (91). Therefore, pace Kant, who held that only his transcendental idealism could explain the possibility of experience, Westphal argues that transcendental idealism runs afoul of many of Kant's own arguments and observations in the Transcendental Aesthetic and Transcendental Analytic and, more important, that transcendental affinity provides grounds for "realism sans phrase" (the author's phrase) about objects and events in space and time, and for the view that our mental states are determined by external objects. As Westphal puts it in his conclusion: "Kant's analysis of transcendental affinity is in fact a transcendental argument for mental content externalism" (266). [End Page 665]The second part of Westphal's argument revolves around a detailed examination of Kant's theses about transeunt causality and the nature of matter as expressed not only in the Critique of Pure Reason, but also in the Metaphysical Foundations of Natural Science and the Opus postumum. Roughly the problem is this: in order to have an adequately grounded metaphysics of nature, Kant needs not only the results of the Analogies of Experience, the transcendental causal thesis that every event has a cause, but also the metaphysical causal thesis that every physical event has an external physical cause. But, according to Westphal, in the Metaphysical Foundations... (shrink)

Chapter 1: An Introduction: The ‘Semantic Sting’ Argument Describes Dworkin’s theory as concerning the conditions of legal validity. “A legal system is a system of norms. Validity is a logical property of norms in a way akin to that in which truth is a logical property of propositions. A statement about the law is true if and only if the norm it purports to describe is a valid legal norm…It follows that there must be certain conditions which render certain norms, (...) but not others, legally valid. Hence it also follows that there can be two types of disagreement over the truth or falsehood of propositions about the law. People can disagree over the question ‘What are the conditions of legal validity?’, in which case their disagreement is a theoretical one. Or they can agree on the conditions of validity, and disagree as to whether or not those conditions actually obtain in a given case or not.” Argues that the best way to interpret Dworkin’s ‘semantic-sting argument’ is as a general argument against conventionalism in legal positivism. Summarizes the outcome of Dworkin’s argument as follows: “[I]f Dworkin is right about the legal reasoning of lawyers and judges, conventionalism would be self-defeating: if lawyers and judges recognize as legally binding not only those norms which are uncontroversially identifiable under the Rule of Recognition, that is, if what they recognize as binding is not only source-based law, then conventionalism turns out to be false on its own terms. In other words, either law is not what lawyers and judges think that it is, in which case law is not a matter of conventions, or – if it is what lawyers and judges think – conventionalism is false, as they do not see the law as purely a matter of conventions.” Dworkin’s theory, then, is a new conception of jurisprudence aiming to present itself as a rival to conventionalism. The book will be concerned with re-examining positivism in light of the interpretative challenge. Chapter 2: Meaning and Interpretation “[R]oughly, interpretation can be defined as an understanding or explanation of the meaning of an object.” Interpretation in this narrow sense is distinct from a less formal and broader use of interpretation that makes it equivalent to explanation. “Hence also, only those objects which are capable of bearing some meaning qualify as objects of interpretation.” [Why shouldn’t we think of interpretation as object-identification? This seems to be closer to what Dworkin has in mind.] Thus, a consideration of the philosophical work on meaning is appropriate. First, a consideration of Davidson on interpretation. The thesis is that Davidson’s “radical interpretation” can only account for sentence meaning and not for linguistic interpretation in general. Davidson cannot account for the non-rule-governed aspects of communication. “Semantics, as opposed to interpretation, concerns those aspects of communication which are rule or convention governed…but such rules are normally unavailable as reasons or justifications for an interpretation. On the contrary, interpretation is usually required because the issue is not determined by rules or conventions.” Interpretation, rather, is parasitic with understanding the meaning of an expression and not equivalent with it. As Dummett notes, any reflection on the meanings of words assumes prior knowledge of ordinary meanings. “This leads to the conclusion that understanding or explaining the meaning of an expression and interpreting it, are two conceptually separate things. It also indicates that seman ics can only be employed, if at all, to elucidate the concept of interpretation by way of contrast: interpretation concerns those aspects of communication which are under-determined by semantic rules or conventions.” Pragmatics, the study of problems posed by discrepancies between utterer’s meaning and sentence meaning, would seem to be closer to inquiry into interpretation. Both are concerned with understanding how meaning is possible where conventional rules leave off. Contemporary pragmatics, moreover, recognizes the logically indeterminate character of communicative inferences beyond conventional meaning and that the contextual conditions that account for the possibility cannot be realized in the semantic structure of the sentence. However, different criteria of success may be at work in pragmatics than interpretation. Pragmatics is concerned with how communication is achieved and thus the criteria of success would be grasping a speaker’s intentions. Many think, however, that communication is unimportant in certain spheres of communication, e.g. artistic interpretation, and that in these cases the aim of interpretation is not to uncover the actual artist’s intentions. What kind of meaning is interpretation aimed at then? It cannot be the meaning the object has for the interpreter. “Interpretation purports to be a statement about the object interpreted, not about the subject who offers the interpretation…it is crucial to remember that not everything we say about a work of art, or any other text, amounts to an interpretation of it. Only those aspects of a text which can shed light on its meaning form part of the text’s interpretation. What the text means for someone rarely entails anything about what the text means.” [This is puzzling to some extent for it remains somewhat ambiguous what it means to talk of subject-independent meaning.] Interpretive meaning attribution is, rather, counterfactual. “In general, I will suggest that the answer to this question consists in the fact that meaning is assigned by a counterfactual statement. Given that x is the meaning attributed to, for instance a text T, and x is not the literal meaning of T, nor is it the meaning of T intended by its author, then the attribution of meaning x to T can only be understood as the contention that on the basis of certain assumptions a certain fictitious or stipulated speaker would have meant x by expressing T.” Thus, on this account, interpretation, when it does not concern an actual speaker, turns out to be a kind of counterfactual intention attribution. Twofold point: “First, that interpretation is essentially a matter of attributing intentions, that is, in the pragmatics sense of ‘meaning’, namely, meaning that such-and-such by an act or expression. At the same time, interpretations need not be based on the intentions of actual authors; the meaning of an act or expression is understandable in terms of counterfactual intentions.” [Are we really restricted to understanding the coherence and integrity of meaning in such a way? Presumably the author is a kind of device for organizing meaning, much like Dworkin’s integrity, but need it take that format?] The logic of interpretation is typically reducible to intention attribution. [What role does the counterfactual author play in structuring meaning?] The criteria of interpretive success will depend upon the object, whether it is the real author or the counterfactual author. If the former, success will depend upon the retrieval of the author’s actual intentions. “Likewise, if the author is characterized in terms of some ideal representative of a certain genre, for instance, the presumptions which are taken to determine this c aracterization would provide the criteria of success for the particular interpretation offered.” [The criteria of success would seem, then, to be the principles, ideals, etc. that we attribute to the counterfactual author. These attributed qualities would be doing all the work – is the attribution of intention to the hypothetical author, then, really necessary at all?] [Does this account presuppose a weird dichotomy between what an object is and what it means? This dichotomy is different, if present at all, in Dworkin.] Chapter 3: Dworkin’s Theory of Interpretation and the Nature of Jurisprudence Three main insights of Dworkin’s theory of interpretation: “First, that interpretation strives to present its object in its best possible light. Second, that interpretation is essentially genre-dependent. And third, that there are certain constraints that determine the limits of possible interpretations of a given object.” Why the best light? Dworkin doesn’t really address this question in depth but claims that otherwise we are left with no way of justifying and choosing an interpretation or we are left with the author’s intention model, which we should reject. [Marmor doesn’t seem clear on what precisely it means to present something in its best light – seems to conflate it with most appealing light which, I take it, is different than what Dworkin has in mind.] “Dworkin is quite right to maintain that without having some views about the values inherent in the genre to which the text is taken to belong, no interpretation can take off the ground. The values we associate with the genre partly, but crucially, determine what would make sense to say about the text, what are the kinds of meaning we could ascribe to it.” There is no necessity for an interpretation to present an object in its best light with regards to the genre it is taken to be part of. Interpretations “could simply strive to present it in a certain light, perhaps better than some, worse than others, but in a way which highlights an aspect of the meaning of the text which may be worth paying attention to for some reason or another.” [What kind of reasons would count in choosing to present it in one light rather than another?] There is simply zero grounds for Dworkin’s assertion that we have no reason to pay attention to an interpretation that does not present it in its best light. Take a psychoanalytic interpretation of Hamlet, for example – not the best light, but a legitimate one. [This seems related to the next criticism – clearly Dworkin would have to loosen his insistence on the best, though not to detriment.] Moreover, especially with regards to art, it doesn’t appear possible to make an all things considered judgment about the best interpretation given the incommensurability of different values that are taken to inhere in a given genre. [Dworkin can respond here that we may have different available interpretations that could be justified with respect to the relevant value. Moreover, a lack of common denominator does not prevent any comparison whatsoever.] Constructive interpretation concerns social practices constituted by norms – it imposes a purpose or value rendering intelligible the normative character of the practice. There is a separate aspect of constructive interpretation that maintains that elements of the practice are sensitive to the point of the practice. It is important to note that different social practices will institutionalize themselves in different ways – thus, different practices will establish varying conditions on how the practice can be altered. The position of the positivists is that evaluative judgments concerning what the law should be are insufficient for determining what the law is given the nature of law’s institutionalization.&nb p; [This would seem to reside on a certain conception of law, i.e. an interpretation about where the value of law lies.] “[T]his being one of the main points of dispute between Dworkin and his positivist opponents, Dworkin cannot at this initial state presume law to be sensitive to its value in the manner that other, non-institutional practices might be, without incurring the charge of having assumed the very point at issue.” The upshot for Dworkin is that any explanation of a social practice such as law requires the same kind of reasoning as participation in that practice. This will be called the hermeneutic thesis. We can try to reconstruct a justification for this view based on the necessity of shared background assumptions – but this will not do since Dworkin’s claim is stronger: it contends that participants’ and theorists’ must “adopt one and the same normative point of view.” [The sense of normative here is unclear. It is true, though, that shared background assumptions do not imply viewing the law as valuable in any particular way, or at least it does not imply this in any strong sense.] Dworkin makes two distinct points with the hermeneutic thesis: “First, that the explanation of a social practice, like law or the arts, is essentially interpretative, and as such, necessarily value laden. Second, that the interpretation of such social practices, which Dworkin calls ‘argumentative’, is unique in the sense that the practice itself is an evaluative enterprise, and that therefore the interpreter of such a practice must form an evaluative judgment of her own about those values which are inherent in the practice that she purports to interpret.” [As stated, the first thesis is terribly ambiguous – for Dworkin, it clear implies a commitment to constructive interpretation. For Marmor, who accepts it, it is totally unclear what commitment he intends to make. He seems to mean simply that we have criteria for success concerning what counts as a successful explanation.] Mamor denies the second thesis. “What Dworkin seems to ignore here is that there is a crucial difference between forming a view about the values which are manifest in a social practice, like law, and actually having evaluative judgments about them.” [The problem, however, it that it is a contentious matter what values are part of the law – a theorist’s account of what values are constitutive of a particular legal system must rely on the kind of arguments which participants rely on. Of course, a theorist might simply note a debate about values and attempt to remain agnostic, but this will fail to be a full theoretical account of what law is!] Dworkin’s thesis seems to depend exclusively on his account of constructive interpretation. [This seems exactly right.] Chapter 4: Coherence, Holism, and Interpretation: The Epistemic Foundation of Dworkin’s Legal Theory Begins with discussion of Rawls’ reflective equilibrium. Sums up dual criticism as follows: “[T]he assumption that intuitions are independently true and the converse one, that their truth depends on fitting a coherent scheme, both seem to yield paradoxical results.” Dworkin, in his article “The Original Position”, claims that Rawls cannot commit himself to ethical realism. “[T]he natural model presupposes some form of ethical realism, while the constructive model does not. One important difficulty arising from an attempt to apply the natural model to Rawls is, that under the natural model, any theory which dopes not account for an intuition, at least for one which is held firmly, cannot be wholly satisfactory, just as scientific theory which does not account for certain observational data it is supposed to cover, would not be satisfactory in a familiar way.” Rawls, rather, is committed to a constructivist view of morality. Moreover, the reason we value coherence epistemically in moral theory is that it itself is a value of political morality – fairness requires consistency and publicity in the application of moral standards. Marmor notes the following problem with such a view: “[I]f coherence is justified, as it is here, with reference to certain moral values, that is, a specific conception of fairness, then we face the following problem: the presupposed values of fairness must themselves be based upon intuitive convictions, in which case the question of their truth cannot be ignored. If they are taken to be true…we are driven back to the perplexities of the natural model.” Discusses, helpfully, the Fish/Dworkin debate. The upshot is that Dworkin’s interpretive model is best off if it commits itself to a Quineian holism. However, this undermines his distinction between internal and external skepticism since holism must deny that moral judgments constitute a closed system. [This analysis seems exactly right.] Endorses Simmonds view that Dworkin’s theory does not meet the requirements of complexity he identifies as necessary to avoid vicious circularity in interpretive judgments of fit and identity. Coherence is doing the work through and through and therefore the interpretive theory of law is circular. [Will require further investigation, though it is unclear how coherence is doing any work in the pre-interpretive stage. At this stage, the judgments, if interpretive, seem to be derived from different sources. In any case, using coherence as a value seems to be highly suspect.] Why doesn’t Dworkin just reject Fish’s assumptions: because of his jurisprudence. “If legal texts can have a meaning that is not entirely dependent on a process of interpretation, then it is at least sometimes the case that the law can simply be understood, and applied, without the mediation of interpretation. And if that is the case, then the argument from interpretation against legal positivism collapses. It is no longer the case that every conclusion about what the law is, depends on evaluative considerations about what it ought to be.” Chapter 5: Semantics, Realism, and Natural Law Assessment of Michael Moore’s legal realism and its implications. [The final criticisms of Moore are not decisive.] Chapter 6: Constructive Identification and Razian Authority A consideration of Dworkin’s denial that the communication model of interpretation is appropriate for legal interpretation. Marmor argues that intentions do play a crucial role in the identification of legal norms in a way that is incompatible with Dworkin’s “coherence thesis”. Marmor takes Dworkin to be committed to the constructive identification thesis: that the identification of something as part of the legal, artistic, etc. genre can be done sufficiently by evaluative considerations. “Here, one must maintain that evaluative considerations are sufficient to determine whether something is a legal norm or a work of art”. [Fit, however, constrains possible evaluative considerations – thus evaluative considerations are not sufficient in themselves.] “Now the crucial point here is this: if you maintain the possibility of constructive identification in art, you must assume that works of art can be identified as such on the basis of certain features they happen to possess, features which contain no reference to any particular intention to create a work of art…unless we take intentions into account, how can we discriminate between the concept of an aesthetic artifact and the con ept of a work of art?” [It is unclear, and I think false, that constructive interpretation of anything requires identifying something irrespective of an artificers intentions. Those intentions may be relevant, dependent upon the genre under which we are trying to classify the object. Nothing, seemingly, about constructive interpretation in general excludes this possibility.] Marmor’s point is that it turns out to be impossible to identify art as art without reference to an artist’s intentions – especially given the state of contemporary art. [It is notable that Marmor’s response to counterexample implicitly depends upon a fully developed theory of aesthetics. His cursory comments on the matter of identifying art seem insufficient to say the least.] The rest of the chapter considers the incompatibility of Raz’s account of authority with constructive interpretation. The incompatibilities mentioned do not move beyond what Raz identifies in his article “Authority, Law and Morality”, but a defense of this notion of authority is defended in several [inconclusive] respects. [Raz and Marmor want to separate identification from content. This is not clearly a defensible separation.] Chapter 7: No Easy Cases? Chapter defends notion that there is a distinction between easy and hard cases in the positivist sense. Takes a Hartian approach and ultimately defends the distinction by associating it Wittgenstein’s conception of rule following. The point is that one need to look the purpose of rule in order to understand what the rule requires. Chapter 8: Legislative Intent and the Authority of Law Examines the following doctrine concerning the role of legislative intent in adjudication: “[F]irst, it would hold that laws, at least in certain cases, are enacted with relatively specific intentions, and that this is a matter of fact which is discernible through an ordinary fact-finding procedure. Second, that in certain cases the presence of such a fact, namely, that the law was enacted with a certain intention, provides judges with a reason to decide the legal dispute in accordance with the relevant legislative intent.” [It is important that for Marmor, interpretive strategies are only appropriate in hard cases. However, we should wonder what grounds positivism can offer for deciding a hard case in any manner which is not the morally best manner according to the judgment of the judge. There are no legal grounds, by definition, in hard cases and so what justificatory strategy would endorse any judicial decision except for the morally best one?] We can ascribe intentions to a legislative body, when this is possible at all, by taking the shared intentions of the majority, rather than some group intention, to be the significant intentions. Moreover, we should expect a good deal of consensus about intentions for otherwise it is hard to explain how legislative bodies are able to produce so much legislation. Discussion of kinds of intentions concludes as follows: “I have distinguished between three main types of intention that are potentially relevant from the legal point of view. Apart from the intentions that are manifest in the language of the law itself, legislators typically have further intentions in enacting a given law, and sometimes they would have certain intentions bearing on its proper application. I have also suggested that some of these further intentions may be essentially non-avowable, in which case they are rendered initially irrelevant. Finally, I have pointed out that considerations of consistency require that the legislator’s application intentions be taken into account only if, and to the extent that, they are in accord with his further intentions.” The manner in which intentionalism is to be justif ed relies on the distinction, Marmor maintains, between expert and mere collective action authority. “The point I wanted to make is strictly conditional: if, and only if, a certain law is justified on the basis of the expertise branch of the normal justification thesis, would it make sense to defer to the legislature’s intentions in the interpretation of the law, that is, to the extent that there is, in fact,; such an intention and it can clarify something that needs clarification.” Insofar as a legislature can be considered an expert on the matter requiring adjudication and interpretation should the body’s intention be taken into account. Chapter 9: Constitutional Interpretation Begins by laying out general necessary features of a constitution. Then Marmor moves on to consider general questions of constitutional legitimacy. First, he considers what grounds might be offered for the legitimacy of a constitution at all. He notes that the central question is what permits a single generation to bind future generations. He then examines four arguments to avoid this problem. The first is based on the moral legitimacy of the constitution; Marmor rejects this solution for the [truly dubious] reason that the constitution would make no practical difference because it would not supply reasons in addition to those provided by morality [but, presumably, the point is that these legally valid rules would be institutionally enshrined]. The second is based on the moral authority of the framers and Marmor rightly rejects this on the basis of the idealization of the framers it requires and less rightly on the basis that there cannot be moral authorities. Third is the “argument from interpretation” which claims that “as long as the particular content of the constitution is determined by its interpretation, and the authoritative interpretation at any time correctly instantiates the values which ought to be upheld in the community, the constitution would be morally legitimate”. The fourth is Raz’s which argues that a constitution is valid so long as its constraints are morally permissible because conventions of this type might aid the continuity of the legal system, i.e. it is important to have a convention of this type and the constitution is a kind of this type. Marmor appears to endorse these two approaches and concludes: “The conditions for the legitimacy of a constitution must comprise the following conditions. First, the values and principles enshrined in it must be morally permissible…Second, when certain choices are made in particular cases, they would be legitimate if they are either morally underdetermined, or else, morally correct…It follows from this that both arguments must assume that at least in those areas in which the constitution would make a moral difference, it can be interpreted to make the difference that it should, that is, according to the true moral principles that should apply to the particular case...the moral legitimacy of constitutions very much dependent on the practices of their interpretation. In other words, a great deal of the burden of moral legitimacy is shifted by these arguments to the application of the constitution, thus assuming that the constitution is legitimate only if the courts are likely to apply the constitution in a morally desirable way.” [This implies that the only significant value constitutions have is in providing a conventional practice where some such practice is required.] Moves on to argue that courts typically rely, and rightly so, on moral considerations when deciding constitutional issues because typically, in cases of the kind that reach the supreme or constitutional court, there is no law on the case. Much of this relies on his earlier discussion about the nature of interpretation in the law – that legal interpretation is always a matter of cha ging the law. (shrink)

Shapiro has recently argued that Dworkin posed a new objection to legal positivism in Law's Empire, to which positivists, he says, have not adequately responded. Positivists, the objection goes, have no satisfactory account of what Dworkin calls “theoretical disagreement” about law, that is, disagreement about “the grounds of law” or what positivists would call the criteria of legal validity. I agree with Shapiro that the critique is new, and disagree that it has not been met. Positivism can not offer (...) an explanation that preserves the “face value” of theoretical disagreements, because the only intelligible dispute about the criteria of legal validity is an empirical or “head count” dispute, i.e., a dispute about what judges are doing, and how many of them are doing it. Positivism, however, has two other explanations for theoretical disagreement, which “explain away” rather than preserve the “face value” disagreement. According to positivists, either theoretical disagreements are disingenuous, in the sense that the parties, consciously or unconsciously, are really trying to change the law, that is, they are trying to say, as Dworkin puts it, “what it should be” not “what the law is”; or they are simply in error, that is, they honestly think there is a fact of the matter about what the grounds of law are, and thus what the law is, in the context of their disagreement, but they are mistaken, because, in truth, there is no fact of the matter about the grounds of law in this instance precisely because there is no convergent practice of behavior among officials constituting a Rule of Recognition on this point. The “Disingenuity” and “Error Theory” accounts of theoretical disagreement are explored, with attention to the theoretical desiderata at stake in choosing between competing explanatory theories. Particular attention is given to the best explanation for Riggs v. Palmer in light of the actual historical context of the decision and other opinions by the Riggs judges in contemporaneous cases. (shrink)

Ronald Dworkin famously argued that legal positivism is a defective account of law because it has no account of Theoretical Disagreement. In this article I argue that legal positivism—as advanced by H.L.A. Hart—does not need an account of Theoretical Disagreement. Legal positivism does, however, need a plausible account of interpretation in law. I provide such an account in this article.

Scott Shapiro recently suggested that Ronald Dworkin’s critique in Chapter 1 of Law’s Empire represents the greatest threat currently facing legal positivism. Shapiro had in mind, not the semantic sting argument (‘the SSA’), but rather what I call ‘the argument from theoretical disagreement’ (or ‘the ATD’). I contend that Shapiro was right to focus on the ATD, but that even he underestimated just how serious a challenge it poses to positivism (and perhaps to other theories of law as well). (...) The ATD, I argue, is an objection to any theory of law that denies that legal officials can engage in theoretical disagreement—that is, disagreement about the grounds of law. The SSA then seeks to explain why so many legal philosophers adopt such theories. I argue that the SSA is an implausible explanation of why many legal philosophers deny that theoretical disagreement exists, but that this does not undermine the ATD’s contention that they are wrong to do so. Indeed, given the variety of forms that theoretical disagreement can take, Dworkin’s positivist critics face a very significant challenge in seeking either to explain away the appearance of theoretical disagreement or to develop forms of positivism that can allow for such disagreement. (shrink)

Research on the use of propranolol as a pharmacological memory dampening treatment for post-traumatic stress disorder is continuing and justifies a second look at the legal and ethical issues raised in the past. We summarize the general ethical and legal issues raised in the literature so far, and we select two for in-depth reconsideration. We address the concern that a traumatized witness may be less effective in a prosecution emerging from the traumatic event after memory dampening treatment. We analyze (...) this issue in relation to sexual assault, where the suggestion that corroborating evidence may remedy any memory defects is less likely to be helpful. We also consider the clinical ethical question about a physician's obligation to discuss potential legal consequences of memory dampening treatment. We conclude that this latter question reflects a general problem related to novel medical treatments where the broader socio-legal consequences may be poorly understood, and suggest that issues of this sort could usefully be addressed through the promulgation of practice guidelines. (shrink)

In this paper, I outline and defend an alternative to Hartian legal theory that accepts the Hartian theory of a legal system yet rejects the Hartian theory of legal content in favor of a non-positivist alternative. I call this the- ory the justificatory view. A key argument advanced here in support of the justificatory view relies on the problem of theoretical disagreement that Ronald Dworkin poses for Hartian positivism. Moreover, I argue that a vir- tue of the justificatory view (...) is that its hybrid nature shields it from the forceful criticism that Brian Leiter marshals against Dworkin’s legal theory. As Leiter observes, though Dworkin’s legal theory may do better than posi- tivism with respect to explaining the marginal phenomenon of theoretical disagreement among legal officials, Dworkinian legal theory suffers the much greater failing of being unable to explain the background of massive decisional agreement characteristic of legal systems. I argue that because the justificatory view accepts and rests upon the Hartian theory of a legal system, it is no less able than Hartian legal theory to explain this back- ground of massive decisional agreement.Resumen:En este artículo esbozo y defiendo una alternativa a la teoría jurídica hartiana, que si bien acepta la teoría hartiana del sistema jurídico, re- chaza sin embargo la teoría hartiana del contenido jurídico y aboga por una alternativa no-positivista. Llamo a esta teoría la postura de justificación. Un argumento clave para defender la postura de justificación se erige sobre el problema del desacuerdo teórico que Ronald Dworkin formuló al positivismo hartiano. Además, sostengo que una de las virtudes de esta postura de justificación es que su naturaleza híbrida la protege de las enérgicas críticas que plantea Brian Leiter contra la teoría jurídica de Dworkin. Como observa Leiter, aunque la teoría jurídica de Dworkin sea más consistente que la teoría positivista para explicar el fenómeno marginal de los desacuerdos teóricos entre los oficiales del derecho, la teoría dworkiniana padece mucho más el problema de no poder explicar el contexto de acuerdos masivos en las decisiones que caracterizan a un sistema jurídico. Y esto lo sostengo porque la postura de justificación acepta y se basa en la teoría hartiana del sistema jurídico; por ello es igual de capaz que la teoría jurídica de Hart de explicar este contexto de decisiones que gozan de un acuerdo masivo. (shrink)

In his general theory of relativity Einstein sought to generalize the special-relativistic equivalence of inertial frames to a principle according to which all frames of reference are equivalent. He claimed to have achieved this aim through the general covariance of the equations of GR. There is broad consensus among philosophers of relativity that Einstein was mistaken in this. That equations can be made to look the same in different frames certainly does not imply in general that such frames are (...) physically equivalent. We shall argue, however, that Einstein's position is tenable. The equivalence of arbitrary frames in GR should not be equated with relativity of arbitrary motion, though. There certainly are observable differences between reference frames in GR. The core of our defense of Einstein's position will be to argue that such differences should be seen as fact-like rather than law-like in GR. By contrast, in classical mechanics and in special relativity the differences between inertial systems and accelerated systems have a law-like status. The fact-like character of the differences between frames in GR justifies regarding them as equivalent in the same sense as inertial frames in SR. (shrink)

In his general theory of relativity (GR) Einstein sought to generalize the special-relativistic equivalence of inertial frames to a principle according to which all frames of reference are equivalent. He claimed to have achieved this aim through the general covariance of the equations of GR. There is broad consensus among philosophers of relativity that Einstein was mistaken in this. That equations can be made to look the same in different frames certainly does not imply in general that such frames (...) are physically equivalent. We shall argue, however, that Einstein's position is tenable. The equivalence of arbitrary frames in GR should not be equated with relativity of arbitrary motion, though. There certainly are observable differences between reference frames in GR (differences in the way particles move and fields evolve). The core of our defense of Einstein's position will be to argue that such differences should be seen as fact-like rather than law-like in GR. By contrast, in classical mechanics and in special relativity (SR) the differences between inertial systems and accelerated systems have a law-like status. The fact-like character of the differences between frames in GR justifies regarding them as equivalent in the same sense as inertial frames in SR. (shrink)

Dworkin's theoretical disagreement argument, developed in Law's Empire, is presented in that work as the motivator for his interpretive account of law. Like Dworkin's earlier arguments critical of legal positivism, the argument from theoretical disagreement has generated a lively exchange with legal positivists. It has motivated three of them to develop innovative positivist positions. In its original guise, the argument from theoretical disagreement is presented as ‘the semantic sting argument’. However, the argument from theoretical disagreement has (...) more than one version. This article briefly discusses two versions and the leading replies to them, then focuses on the most influential version, directed at Hartian positivism. The article surveys the leading positivist rejoinders to the recast version, indicating key Dworkinian replies or assessing the strength of these rejoinders, and concludes with a rejoinder of its own, making a new case that the argument from theoretical disagreement isn't fatal for Hartian legal positivism. (shrink)

Post-traumatic stress disorder is a “young” disorder formally recognized in the early 1980s, although the symptoms have been noted for centuries particularly in relation to military conflicts. PTSD may develop after a serious traumatic experience that induces feelings of intense fear, helplessness or horror. It is currently characterized by three key classes of symptoms which must cause clinically significant distress or impairment of functioning: persistent and distressing re-experiencing of the trauma; persistent avoidance of stimuli associated with the trauma and numbing (...) of general responsiveness; and persistent symptoms of hyper-arousal. One of the possible symptoms within the second class is difficulty in remembering an important aspect of the traumatic event.PTSD is not an uncommon condition, with an estimated lifetime prevalence of about 7-9% based on studies conducted in the United States and Canada, with women at higher risk than men. While not everyone who experiences a significant trauma will go on to develop PTSD, about a third will do so. Sexual assault, along with other forms of assaultive violence, pose a comparatively high risk of PTSD. (shrink)

Indirect negative evidence is clearly an important way for learners to constrain overgeneralisation, and yet a good learning theoretic analysis has yet to be provided for this, whether in a PAC or a probabilistic identification in the limit framework. In this paper we suggest a theoretical analysis of indirect negative evidence that allows the presence of ungrammatical strings in the input and also accounts for the relationship between grammaticality/acceptability and probability. Given independently justified assumptions about lower bounds on the (...) probabilities of grammatical strings, we establish that a limited number of membership queries of some strings can be probabilistically simulated. (shrink)

In any society influenced by a plurality of cultures, there will be widespread, systematic differences about at least some important values, including moral values. Many of these differences look like deep disagreements, difficult to resolve objectively if that is possible at all. One common response to the suspicion that these disagreements are unsettleable has always been moral relativism. In the flurry of sympathetic treatments of this doctrine in the last two decades, attention has understandably focused on the (...) simpler case in which one fairly self-contained and culturally homogeneous society confronts, at least in thought, the values of another; but most have taken relativism to have implications within a single pluralistic society as well. I am not among the sympathizers. That is partly because I am more optimistic than many about how many moral disagreements can be settled, but I shall say little about that here. For, even on the assumption that many disputes are unsettleable, I continue to find relativism a theoretically puzzling reaction to the problem of moral disagreement, and a troubling one in practice, especially when the practice involves regular interaction among those who disagree. This essay attempts to explain why. (shrink)

A simple explanation of theoreticity says that a term is theoretical if and only if it refers to nonobservational entities. Paradigmatic examples of such entities are electrons, neutrinos, gravitational forces, genes etc. There is yet another explanation of theoreticity: a theoretical term is one whose meaning becomes determined through the axioms of a scientific theory. The meaning of the term ‘force’, for example, is seen to be determined by Newton’s laws of motion and further laws about special (...) forces, such as the law of gravitation. Theoreticity is a property that is commonly applied to both expressions in the language of science, and referents and concepts of such expressions. Objects, relations and functions as well as concepts thereof may thus qualify as theoretical in a derived sense. (shrink)

According to what is known as the classic theory, beauty can be defined as unity or formal harmony. To overcome some of the criticisms that it encountered, the American philosopher Jared S. Moore proposed, in his paper from 1942, a modernisation of such theory, by distinguishing various types and subtypes of harmony which, taken together, are intended to cover both the objective and the subjective sides of beauty. Our goal is to look closer to some of the main principles (...) that emerge within Moore’s intricate taxonomy of harmony – most notably, the principles of organic unity, fittingness, and empathy – which in his article are only sketched or implicitly suggested. Employing such supplementations, we hope to make J.S. Moore’s comprehensive view of beauty even more complete from a theoretical standpoint and suitable to face the challenge posed by the modernist and postmodern artistic practices, which seemingly undermined the notions of beauty and formal harmony. (shrink)

Ronald Dworkin’s argument from theoretical disagreement remains a pressing challenge for legal positivists. In this paper, I show how positivists can answer Dworkin’s argument without having to attribute confusion or disingenuity to legal officials. I propose that the argument rests on two errors. The first is to assume that positivism requires legal officials to converge on precise grounds of law when convergence on more general grounds will do. The second is to construe judicial speech too literally. If we pay (...) attention to the pragmatics of judicial speech, we see that judges do not disagree over what the grounds of law are; they at most disagree over how courts should proceed when agreed-upon, though imprecise, grounds of law underdetermine what the content of the law directs in the case at hand. (shrink)

The disagreement between Henry of Ghent and John Duns Scotus on divine illumination is usually recognized as a high point in the history of medieval epistemology. Still, there is much obscurity surrounding that debate, including the specific nature of the disagreement between those two thinkers. In this paper, I argue that the point at issue is the relationship between sense and intellect. Henry of Ghent, who posits a close tie between sense and intellect, holds that the senses are the only (...) natural source of both content and certainty for the intellect. By contrast, Duns Scotus holds that, in our natural state, the senses are the source of content but not of certainty for the intellect, which can achieve knowledge of the truth of first principles true by virtue of the meaning of their terms independently of the sensory input it receives. (shrink)

According to Fogelin’s account of deep disagreements, disputes caused by a clash in framework propositions are necessarily rationally irresolvable. Fogelin’s thesis is a claim about real-life, and not purely hypothetical, arguments: there are such disagreements, and they are incapable of rational resolution. Surprisingly then, few attempts have been made to find such disputes in order to test Fogelin’s thesis. This paper aims to rectify that failure. Firstly, it clarifies Fogelin’s concept of deep disagreement and shows there are several (...) different breeds of such disagreements. Thus, to fully assess Fogelin’s thesis, it will be necessary to seek out cases of each breed to evaluate their rational irresolvability. Secondly, it begins this task by looking at a significant debate within the logical literature over the truth of contradictions. We demonstrate that, while the debate exemplifies a breed of deep disagreement, the parties involved can supply one another with rationally compelling reasons. (shrink)

According to Fogelin’s account of deep disagreements, disputes caused by a clash in framework propositions are necessarily rationally irresolvable. Fogelin’s thesis is a claim about real-life, and not purely hypothetical, arguments: there are such disagreements, and they are incapable of rational resolution. Surprisingly then, few attempts have been made to find such disputes in order to test Fogelin’s thesis. This paper aims to rectify that failure. Firstly, it clarifies Fogelin’s concept of deep disagreement and shows there are several (...) different breeds of such disagreements. Thus, to fully assess Fogelin’s thesis, it will be necessary to seek out cases of each breed to evaluate their rational irresolvability. Secondly, it begins this task by looking at a significant debate within the logical literature over the truth of contradictions. We demonstrate that, while the debate exemplifies a breed of deep disagreement, the parties involved can supply one another with rationally compelling reasons. (shrink)

This article is a novel assessment of Hermann Cohen’s theoretical philosophy, starting out from his Kant interpretation. Hermann Cohen was the head and founder of the Marburg School of Neo- Kantianism. In the beginning, hence, I will commence with some initial reflections on the makeup and importance of this school, before I move on to Cohen’s revolutionary Kant interpretation and its ramification for the Marburg School in general.

Gottfried Wilhelm Leibniz (1646–1716) was one of the great thinkers of the seventeenth and eighteenth centuries and is known as the last “universal genius”. He made deep and important contributions to the fields of metaphysics, epistemology, logic, philosophy of religion, as well as mathematics, physics, geology, jurisprudence, and history. Even the eighteenth century French atheist and materialist Denis Diderot, whose views could not have stood in greater opposition to those of Leibniz, could not help being awed by his achievement, writing (...) in his Encyclopedia, “Perhaps never has a man read as much, studied as much, meditated more, and written more than Leibniz… What he has composed on the world, God, nature, and the soul is of the most sublime eloquence. If his ideas had been expressed with the flair of Plato, the philosopher of Leipzig would cede nothing to the philosopher of Athens.” (Vol. 9, p. 379) Indeed, Diderot's mood was almost despairing in a remark from another piece, which also has a great deal of truth in it: “When one compares the talents one has with those of a Leibniz, one is tempted to throw away one's books and go die quietly in the dark of some forgotten corner.” More than a century later, Gottlob Frege, who fortunately did not cast his books away in despair, expressed similar admiration, declaring that “in his writings, Leibniz threw out such a profusion of seeds of ideas that in this respect he is virtually in a class of his own.” (“Boole's logical Calculus and the Concept script” in Posthumous Writings , p. 9) The aim of this entry is primarily to introduce Leibniz's life and summarize and explicate his views in the realms of metaphysics, epistemology, philosophical theology, and natural philosophy. (shrink)

In a short piece written most likely in the 1690s and given the title by Loemker of “On Wisdom,” Leibniz says the following: “...we see that happiness, pleasure, love, perfection, being, power, freedom, harmony, order, and beauty are all tied to each other, a truth which is rightly perceived by few.”1 Why is this? That is, why or how are these concepts tied to each other? And, why have so few understood this relation? Historians of philosophy are familiar with the (...) fact that both Spinoza and Leibniz place strong emphasis on the notion of power in giving their accounts of the human passions. But, while many scholars have explicated the relation between power and the passions (especially in Spinoza’s philosophy), there has been considerably less attention given to the nature of perfection and its relation to both power and the passions.2 Consider the following passages from Spinoza and Leibniz in which these two thinkers seem to bring together the issue of perfection and passion. In Ethics IIIp11s, Spinoza says the following: We see, then, that the Mind can undergo great changes, and pass now to a greater, now to a lesser perfection. These passions, indeed, explain to us the affects of Joy and Sadness. By Joy, therefore, I shall understand in what follows that passion by which the Mind passes to a greater perfection. And by Sadness, that passion by which it passes to a lesser perfection. The affect of Joy which is related to the Mind and Body at once I call Pleasure or Cheerfulness, and that of Sadness, Pain or Melancholy.3 And, in the Monadology §49, Leibniz says this: “The creature is said to act externally insofar as it is perfect, and to be acted upon [patir] by another, insofar as it is imperfect.”4 In other words, for Spinoza, the primitive passions of joy and sadness are cases in which a being’s perfection is increasing or decreasing, while, for Leibniz, any passion, it would.. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Philosophy 39.3 (2001) 440-442 [Access article in PDF] Reinhard Lauth. Descartes ' Konzeption des Systems der Philosophie. Stuttgart (Bad Cannstatt): Frommann-Holzboog, 1998. Pp. x + 227 pp. Cloth, DM 64.00. Reinhard Lauth's Descartes ' Konzeption des Systems der Philosophie is an interesting addition to the literature on Descartes. Written by a renowned scholar of German Idealism, it does not represent an attempt to respond (...) to scholars of Descartes, to take part in the debate regarding aspects of Descartes's philosophy, nor to explain the role of Descartes's thought in the tumultuous seventeenth century, but rather to explain to scholars of German Idealism why Descartes should be considered the first and one of the greatest transcendental philosophers. It is no accident that in the index we find close to 50 references each to Kant and Fichte, while Descartes's important "rationalist" comrades, Spinoza and Leibniz, receive half as much attention; nor is it an accident that the first and last philosopher mentioned in the book is Fichte.Lauth's book is in the tradition of Gueroult's monumental Descartes selon l ' ordre des raisons (Paris, 1968, 2nd edition) and, as the title indicates, the subject of the book is Descartes's philosophy as a system, not as a collection of independent theses about various philosophical problems. However, unlike Gueroult, who concentrated on an [End Page 440] analysis of the Meditations, Lauth draws extensively on the Rules for the Direction of the Mind, Discourse on Method, Meditations, and Descartes's correspondence. That Descartes viewed philosophy as ideally constituting a system of human knowledge should not come as news to anyone who recalls Descartes's claim in the Preface to the Principles of Philosophy that all of philosophy is like a tree whose roots are metaphysics, trunk physics, and branches medicine, mechanics, and morals, or his claim in the Preface to the Meditations that there is a clear order of argumentation or reasons and that his goal is to lay bare the foundations of philosophy. How exactly Descartes's philosophy is to constitute a system is the trickier question that is Lauth's concern.According to Lauth, the order of reasons that one finds expressed in Descartes's first philosophy is not simply a series of biographical events, filling a psychological need in Descartes (cf. Alquié, La Découverte métaphysique de l ' homme chez Descartes [Paris, 1966]), but rather the "systematic path of the cogito itself" (X). And Lauth attempts to show that there is something inexorable in the way that conclusions about the world from the point of view of the thinking subject are made and follow from one another. This takes him along the well-known path of the Meditations: from the existence of the self, to the nature of the self, to the existence and nature of God, to the external world, and finally to the relation of mind and body. And here two interesting observations on Lauth's part should be singled out. First, Lauth does an admirable job in intimating the tension regarding the places of the thinking subject and God as the supreme principles in Descartes's system. On the one hand, it would seem that the thinking subject should be the highest principle in Descartes's philosophy insofar as its existence is the first thing known; but, according to Lauth, it cannot be the highest principle because it does not contain the principle of its own existence (76). On the other hand, if we claim that God is the highest principle then we must recognize that a system following from this principle must fail insofar as genuine knowledge of God surpasses the bounds of our finite, human knowledge (99-100). Second, in claiming that Descartes was a "transcendental philosopher," Lauth reminds us of the extent to which Descartes is concerned with the bounds of human knowledge as determinable from the thinking subject itself.While this work contains many useful insights—especially for those scholars of German Idealism who are looking for new ways of reflecting on their subject—it has... (shrink)

This paper represents the first installment of alarger project devoted to the relevance of pragmatism forbioethics. One self-consciously pragmatist move would be toreturn to the classical pragmatist canon of Peirce, James andDewey in search of substantive doctrines or methodologicalapproaches that might be applied to current bioethicalcontroversies. Another pragmatist (or neopragmatist) move wouldbe to subject the regnant principlist paradigm to Richard Rorty'ssubversive assaults on foundationalism in epistemology andethics. A third pragmatist method, dubbed ``freestandingpragmatism'' by its proponents, embraces a ``pragmatist'' approachto (...) practical reasoning without discernable moorings either to theclassical canon or to Rorty's neopragmatism. This thirdpragmatist approach to method in practical ethics is the subjectof this article. I begin with an examination of freestandingpragmatism in the theory of judicial decision making. I arguethat this version of legal pragmatism – so described on account ofits commitments to contextualism, instrumentalism, eclecticism,and freedom from grand theory – bears a striking resemblance tomuch self-described pragmatist work in bioethics today. Ifurther argue that if this is what we mean by ``pragmatism,'' thenin a certain sense ``we are all pragmatists now.''. (shrink)

One of the more interesting topics debated by Leibniz and Locke and one that has received comparatively little critical commentary is the nature of essences and the classification of the natural world.1 This topic, moreover, is of tremendous importance, occupying a position at the intersection of the metaphysics of individual beings, modality, epistemology, and philosophy of language. And, while it goes back to Plato, who wondered if we could cut nature at its joints, as Nicholas Jolley has pointed out, the (...) debate between Leibniz and Locke has very clear similarities to the topic that has dominated the philosophy of language from the 1970s on: namely, the challenge mounted by Kripke, Kaplan, Putnam, and others against Russellian and Fregean descriptivist accounts of meaning. Yet, this topic is also, as Jolley writes, one of the “most elusive” in the debate between Leibniz and Locke.2 The purpose of this paper is to examine in detail Leibniz’s critique of Locke’s distinction between real and nominal essences. In doing so, I hope to show certain virtues in Leibniz’s account of metaphysics and philosophy of language that usually escape notice. While I wish to provide a general account of Leibniz’s disagreement with Locke, I also plan to focus on the nature of species and natural kinds. In my opinion, those who have treated this topic have not paid sufficient attention to Leibniz’s claims that “Essence is fundamentally nothing but the possibility of the thing under consideration” and “essences are everlasting because they only concern. (shrink)

Although much recent social science and humanities work has been a revolt against simplification, this volume explores the contrast between simplicity and complexity to reveal that this dichotomy, itself, is too simplistic. John Law and Annemarie Mol have gathered a distinguished panel of contributors to offer—particularly within the field of science studies—approaches to a theory of complexity, and at the same time a theoretical introduction to the topic. Indeed, they examine not only ways of relating to complexity but complexity (...) _in practice._ Individual essays study complexity from a variety of perspectives, addressing market behavior, medical interventions, aeronautical design, the governing of supranational states, ecology, roadbuilding, meteorology, the science of complexity itself, and the psychology of childhood trauma. Other topics include complex wholes in the sciences, moral complexity in seemingly amoral endeavors, and issues relating to the protection of African elephants. With a focus on such concepts as multiplicity, partial connections, and ebbs and flows, the collection includes narratives from Kenya, Great Britain, Papua New Guinea, the Netherlands, France, and the meetings of the European Commission, written by anthropologists, economists, philosophers, psychologists, sociologists, and scholars of science, technology, and society. _Contributors._ Andrew Barry, Steven D. Brown, Michel Callon, Chunglin Kwa, John Law, Nick Lee, Annemarie Mol, Marilyn Strathern, Laurent Thévenot, Charis Thompson. (shrink)

From Descartes to designer babies, The Philosophy Gym poses questions about some of history's most important philosophical issues, ranging in difficulty from pretty easy to very challenging. He brings new perspectives to age-old conundrums while also tackling modern-day dilemmas -- some for the first time. Begin your warm up by contemplating whether a pickled sheep can truly be considered art, or dive right in and tackle the existence of God. In this radically new way of looking at philosophy, Stephen Law (...) illustrates the problem with a story, then lets the argument battle it out in clear, easily digestible and intelligent prose. This perfect little mental health club is sure to give each reader's mind a great workout. (shrink)

We all know that we have and are our bodies. But might it be possible to leave this common place? In the present article we try to do this by attending to the way we do our bodies. The site where we look for such action is that of handling the hypoglycaemias that sometimes happen to people with diabetes. In this site it appears that the body, active in measuring, feeling and countering hypoglycaemias is not a bounded whole: its (...) boundaries leak. Bits and pieces of the outside get incorporated within the active body; while the centre of some bodily activities is beyond the skin. The body thus enacted is not self-evidently coherent either. There are tensions between the body’s organs; between the control under which we put our bodies and the erratic character of their behaviour; and between the various needs and desires single bodies somehow try to combine. Thus to say that a body is a whole, or so we conclude, skips over a lot of work. One does not hang together as a matter of course: keeping oneself together is something the embodied person needs to do. The person who fails to do so dies. (shrink)

One of the most important questions in the debate over the morality of euthanasia and assisted suicide is whether an important distinction between killing patients and allowing them to die exists. The U.S. Supreme Court, in rejecting challenges to the constitutionality of laws prohibiting physician-assisted suicide, explicitly invoked this distinction, but did not explicate or defend it. The Second Circuit of the U.S. Court of Appeals had previously asserted, also without argument, that no meaningful distinction exists between killing and allowing (...) to die. That court had reasoned that if this were so, it would be discriminatory to allow persons on life support to end their lives by removing such treatment, while those who are not connected to life support would be denied similar access to death. (shrink)

Skeptical theism is a popular - if not universally theistically endorsed - response to the evidential problem of evil. Skeptical theists question how we can be in a position to know God lacks God-justifying reason to allow the evils we observe. In this paper I examine a criticism of skeptical theism: that the skeptical theists skepticism re divine reasons entails that, similarly, we cannot know God lacks God-justifying reason to deceive us about the external world and the past. This in (...) turn seems to supply us with a defeater for all our beliefs regarding the external world and past? Critics argue that either the skeptical theist abandon their skeptical theism, thereby resurrecting the evidential argument from evil, or else they must embrace seemingly absurd skeptical consequences, including skepticism about the external world and past. I look at various skeptical theist responses to this critique and find them all wanting. (shrink)

This paper will try to test the plausibility of interweaving a conception of politics with the nature of the conflict which politics is supposed to regulate, by looking at a specific case in the history of Western political thought. I wish to consider the interpretation of modern social relations that sees conflict as arising from the unequal distribution of (relatively) scarce resources. It is my aim to analyse the origins of this conception. But first I would like to note the (...) success of this line of thought, which permeates both everyday conversations and theoretical works. When we argue that the unequal distribution of scarce resources is the main source of conflict, we use �resources� mainly to refer to all goods and commodities that are indispensable to the production of socially desirable items. The term �resources� carries a distinctive economic flavour; and as the main threat to social cohesion is seen to stem from disagreements over the allocation of those �resources�, the solution to the problem is mainly seen in terms of reaching an equilibrium, by relying on the devices of political economy. (shrink)

This paper asks whether geographically localised, or ‘hyperlocal’, uses of Twitter succeed in creating peer-to-peer neighbourhood networks or simply act as broadcast media at a reduced scale. Literature drawn from the smart cities discourse and from a UK research project into hyperlocal media, respectively, take on these two opposing interpretations. Evidence gathered in the case study presented here is consistent with the latter, and on this basis we criticise the notion that hyperlocal social media can be seen as a community (...) in itself. We demonstrate this by creating a network map of Twitter followers of a popular hyperlocal blog in Brockley, southeast London. We describe various attributes of this network including its average degree and clustering coefficient to suggest that a small and highly connected cluster of visible local entities such as businesses form a clique at the centre of this network, with individual residents following these but not one another. We then plot the locations of these entities and demonstrate that sub-communities in the network are formed due to close geographical proximity between smaller sets of businesses. These observations are illustrated with qualitative evidence from interviews with users who suggest instead that rather than being connected to one another they benefit from what has been described as ‘neighbourhood storytelling’. Despite the limitations of working with Twitter data, we propose that this multi-modal approach offers a valuable way to investigate the experience of using social media as a communication tool in urban neighbourhoods. (shrink)

This study describes metonymic argument alternations, in which a constructional slot can be filled by any of a set of semantic roles that index one another, and provides a diachronic corpus analysis of two such alternations in French. In the Reveal secret frame and other communication frames, the Medium can indexically replace the Speaker and the Topic can indexically replace the Information. A regression analysis shows that while topic for information metonymy is more syntactically and pragmatically restricted, medium for (...) speaker metonymy has seen an increase in usage over time across the frame. This change is related to sociocultural developments and has implications for the study of figurative language and lexical semantic change. While it is well understood that figurative mechanisms such as metonymy affect language change, here it is demonstrated that cultural shifts drive changes in metonymies themselves, with corresponding impacts for linguistic structure. (shrink)

In a lot of domains in metaphysics the tacit assumption has been that whichever metaphysical principles turn out to be true, these will be necessarily true. Let us call necessitarianism about some domain the thesis that the right metaphysics of that domain is necessary. Necessitarianism has flourished. In the philosophy of maths we find it held that if mathematical objects exist, then they do of necessity. Mathematical Platonists affirm the necessary existence of mathematical objects (see for instance Hale and Wright (...) 1992 and 1994; Wright 1983 and 1988; Schiffer 1996; Resnik 1997; Shapiro 1997 and Zalta 1988) while mathematical nominalists, usually in the form of fictionalists, hold that necessarily such objects fail to exist (see for instance Balaguer 1996 and 1998; Rosen 2001 and Yablo 2005). In metaphysics more generally, until recently it was more or less assumed that whatever the right account of composition—the account of under what conditions some xs compose a y—that account will be necessarily true (for a discussion of theories of composition see Simons 1987 and van Inwagen 1987 and 1990; the modal status of the composition relation is explicitly addressed in Schaffer 2007; Parsons 2006 and Cameron 2007). Similarly, it has generally been assumed that whatever the right account is of the nature of properties, whether they be universals, tropes, or whether nominalism is true, that account will be necessarily true (though see Rosen 2006 for a recent suggestion to the contrary). In considering theories of persistence it has been widely held that whether objects endure or perdure through time is a matter of necessity (Sider 2001; though see Lewis 1999 p227 who defends contingent perdurantism). And with respect to theories of time it is frequently held that whichever of the A- or B-theory is true is necessarily true. A-theorists often argue that there is time in a world only if the A-theory is true at that world (see for instance McTaggart 1903; Markosian 2004; Bigelow 1996; Craig 2001) while B-theorists often argue that the A-theory is internally inconsistent (Smart 1987; Mellor 1998; Savitt 2000 and Le Poidevin 1991). Once again, we find a few recent contingentist dissenters. Bourne (2006) suggests that it is a contingent feature of time that it is tensed, and thus that the A-theory is contingently true. Worlds in which there exist only B-theoretic properties are worlds with time, it is just that time in those worlds time is radically different to the way it is actually. Other defenders of the B-theory, though not expressly contingentists, do offer arguments against versions of the A-theory that try to show that such A-theories theories are inconsistent with the actual laws of nature (see for instance Saunders 2002 and Callender 2000); these arguments, at least, leave room for the possibility that the A-theories in question are contingently false (at least on the assumption that the laws of nature are themselves contingent, an assumption that not everyone accepts). Despite some notable exceptions, necessitarianism has flourished in many, if not most, domains in metaphysics. One such exception is Lewis’ famous defence of Humean supervenience as a contingent claim about our world. Lewis does not argue that necessarily, the supervenience base for all matters of fact in a world is nothing but a vast mosaic of local matters of particular fact. Rather, he thinks that we have reason to think that our world is one in which Humean supervenience holds (see Lewis 1986 p9-10 and 1994). Another exception to the necessitarian orthodoxy is to be found in the lively debate about the modal status of the laws of nature. Here, if anything, contingentism has been the dominating force, with it generally being held that there are possible worlds in which different laws of nature hold (this view is defended by, among others, Lewis 1986 and 2010; Schaffer 2005 and Sidelle 2002). Necessitarian dissenters hold that the laws of nature are necessary, frequently because they think it is necessary that fundamental properties have the causal or nomic profiles they do (see for instance Shoemaker 1980 and 1988; Swoyer 1982; Bird 1995; Ellis and Lierse 1994). Nevertheless, when it comes to thinking about the nature of the laws themselves, the necessitarian presumption is back on firm footing. Though there is disagreement about whether the laws are generalisations that feature in the most virtuous true axiomatisation of all the particular matters of fact (often known as the Humean view of laws and defended by Ramsey 1978; Lewis 1986 and Beebee 2000) or whether laws are relations of necessity that hold between universals (a view defended by Armstrong 1983; Dretske 1977; Tooley 1977 and Carroll 1990) no one has seriously suggested that it might be a contingent matter which of these is the right account of laws. The necessitarian orthodoxy is not surprising since metaphysics is largely an a priori process. While a priori reasoning may be used to determine whether a proposition is necessary or contingent, it is not well placed (in the absence of a posteriori evidence) to determine whether a contingent proposition is actually true or false. Since metaphysicians aim to tell us which principles are true in which worlds, on the face of it the discovery that metaphysical principles are contingent seems to make part of the task of metaphysics epistemically intractable. In what follows I consider two reasons one might end up embracing contingentism and whether this would lead one into epistemic difficulty. The following section considers a route to contingent metaphysical truths that proceeds via a combination of conceptual necessities and empirical discoveries. Section 3 considers whether there might be synthetic contingent metaphysical truths, and the final section raises the question of whether if there were such truths we would be well placed to come to know them. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Work of Alterity: Bataille and LacanJean Dragon (bio)The topic of alterity may appear at first to be beyond the scope of Bataille’s work, but it is from such questioning that his practice of writing takes its full contours and questions the renewal of literary textuality.Strangely, Bataille fights against writing, an attitude that shows a will to disappear in order to reach sovereignty. Writing, in such a context, supports (...) not only certain useful figures for his particularly heterogeneous works but also the presence of alterity. Feminine imagos, set as the literary equivalent of the eradication of meaning and words, act as levers from which a character produces itself or rather disarticulates and vanishes.Bataille’s fight against writing shows strong similarities to some Lacanian notions: the subject, pleasure (“jouissance”), and, of course, woman. Before trying to map out this perilous comparison—there is no possible perfect transition between the two—we must first extract the significant elements that make it possible. To this end, we propose some reflections on Bataille’s concepts of Oedipus and castration. In so doing, we will be in a better situation to link Lacan and Bataille’s works but also to understand where Lacan has been inspired by Bataille and how Lacan distinguishes himself in his interpretation of the imaginary, the symbolic, the Law, and feminine imagos—especially in the way Lacan, contrary to Bataille, “eradicates” alterity.These questions are necessary steps in opening up a reflection inspired by the work of Bataille and in our desire to actualize purposes yet also extend unresolved polemic effects which this paper can only partially address. To present the necessity of such polemical reflections fits Bataille’s thought as well, which refuses to conclude and takes its meaning from throwing away all possible speech.Feminine imagos are an essential leitmotif in Bataille’s narratives and, more importantly, a cohesion factor for his thought that transcends all domains of writing to give a foundation to the works. 1 With themes such as transgression, subversion, and the [End Page 31] renewal of the Law, we reach an aporia not only of Bataille’s text but also, as Susan Rubin-Suleiman puts it, of literary modernity:What does appear to me certain is that there will be no genuine renewal, either in a theory of the avant-garde or in its practices, as long as every drama, whether textual or sexual, continues to be envisaged—as in Bataille’s pornography and in Harold Bloom’s theory of poetry—in terms of a confrontation between an all-powerful father and a traumatized son, a confrontation staged across and over the body of the mother.[86–87] 2Indeed, if we look at the autofictional purposes and the literary production of Bataille, we must underline an “aporia” in the subversive nature of his texts. This challenge to Bataille generally focuses on his literary works without considering his theoretical works beyond some “canonical” titles. Nevertheless, the lesser-known texts may offer another reading of Bataille’s eroticism and defuse criticism strictly centered on the supposedly pornographic and phallocentric content of novels like L’histoire de l’oeil and Madame Edwarda.Before branding the works of Bataille as “sexist,” we must consider that he was one of the first male authors of his generation to denounce the “castration” dominating society and individuals. Mario Perniola, discussing a text of Georges Bataille, 3 emphasizes his condemnation of imperialism behind the use of many terms: “the imperialist image of the eagle, even when it presents itself with the attributes of revolution, unsuccessfully hides its Promethean and Icarian pretensions.” 4 This interpretation finds an echo in another text of Bataille, “L’oeil pinéal,” where Bataille directly links the castration to the myth of Prometheus: “the legend of Prometheus is linked to the castration complex,” 5 says Bataille. Perniola’s words point directly to the patriarchal order upon which this imperialism lies, disguising itself as revolution; they show Bataille’s profound disagreement with such a social and individual foundation.It is also difficult to affirm the predominance of a phallocentric stance in Bataille. The oedipal figures, for example, are much too paradoxical in their modes... (shrink)

Author Jeremy Waldron has thoroughly revised thirteen of his most recent essays in order to offer a comprehensive critique of the idea of the judicial review of legislation. He argues that a belief in rights is not the same as a commitment to a Bill of Rights. This book presents legislation by a representative assembly as a form of law making which is especially apt for a society whose members disagree with one another about fundamental issues of principle.

Brian Loar believes he has refuted all those antiphysicalist arguments that take as their point of departure observations about what is or isn't conceivable. I argue that there remains an important, popular and plausible-looking form of conceivability argument that Loar has entirely overlooked. Though he may not have realized it, Saul Kripke presents, or comes close to presenting, two fundamentally different forms of conceivability argument. I distinguish the two arguments and point out that while Loar has succeeded in refuting one (...) of Kripke's arguments he has not refuted the other. Loar is mistaken: physicalism still faces an apparently insurmountable conceptual obstacle. (shrink)

It is likely that internal factors play an important role in restricting the possible avenues of evolutionary change from any starting point. Internal selective processes operating on premutational disturbances, on mutations, and on developmental phases may usefully be separated from the adaptive selection of phenotypes. The precise structural and morphological consequences of internal factors should soon become an isolable problem owing to a) the observational correlation of definite changes in hereditary specificity with particular developmental consequences; and b) the progressive (...) class='Hi'>theoretical identification of the coordinative conditions in organisms. Increasing clarity regarding the coordinative conditions should throw light on the “mutational selection rules” and on the differentiative mutations which led to the most important steps in the past history of evolution.Die Wege der Evolution können sowohl durch innere Auslese der Genotypen wÄhrend der Entwicklung als auch durch die Äussere Darwinische Auslese der Phenotypen bestimmt werden. Seit 1949 haben sich zumindest fünf Forscher mit dieser Möglichkeit befasst. Es ist zur Zeit möglich, zwischen den beiden Arten von Zuchtwahl theoretisch und experimentell zu unterscheiden.Les chemins de l'évolution peuvent Être déterminés non seulement par la sélection extérieure Darwinienne des phénotypes mais aussi par la sélection intérieure des genotypes pendant le développement. Depuis 1949 aux moins cinq investigateurs en ont considéré la possibilité. Il est possible à présent de faire la distinction entre les deux types de sélection dans la théorie comme dans l'expérience. (shrink)

In a secular society, does Christmas mean anything anymore? As we stuff ourselves with plumped-up turkeys, unwrap the latest useless gadget, and gather round the family tree, what real relevance does the festive season have and why do we perpetuate it? The Philosophy of Christmas is designed to be a fun book but one underpinned by an exploration of serious philosophical issues. The way we celebrate Christmas says a lot about the way we relate to each other, our society and (...) values. For instance, did you know that Santa's outfit is only red and white because those are the colours of the Coca Cola company? Already a bestselling author, Stephen Law takes a look at such things as the virgin birth (David Hume's theories on miracles), Bertrand Russell's turkey, the existential angst of Santa, and peace on earth to produce a humourous, varied and thought-provoking collection. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Philosophy 40.3 (2002) 399-400 [Access article in PDF] Book Review Radical Enlightenment: Philosophy and the Making of Modernity, 1650-1750 Jonathan I. Israel. Radical Enlightenment: Philosophy and the Making of Modernity, 1650-1750. Oxford: Oxford University Press, 2001. Pp. xx + 810. Cloth, $45.00. Jonathan Israel's goal in this excellent book is to show that we cannot fully understand the high Enlightenment—the age of the philosophes (...) and the French Revolution—without looking at the work and influence of that "most unusual and loneliest thinker" (to borrow a phrase from a later admirer): Spinoza. Israel gives us a detailed and nuanced account of the history of ideas in early modern Europe, focusing especially on the generations before Voltaire and Rousseau. Not only does Israel describe the general struggle between Enlightenment ideas and the status quo ante, he also discusses in depth the tensions between "mainstream" Enlightenment and its "radical" wing. More precisely and importantly, Israel argues that the high Enlightenment ought to be seen as the outcome of "a four-way conflict between Newtonians, neo-Cartesians, Leibnitio-Wolffians, and radicals" (715), a conflict that took place across Europe and whose dust had essentially settled by 1740. Thus, Israel is arguing against the view that the French philosophes were the dominant force in the intellectual world that led to the Revolution, against the view that Newton and Locke played a dominant role throughout Europe, and against the view that there were several distinct enlightenments with different national characters.What is meant by the term "radical Enlightenment"? According to Israel, radical Enlightenment comprises several views and tendencies in the realms of science, theology, and politics: in scientific matters, it embraces naturalism, mechanism, and materialism; in theological matters, it denies a moral order to the universe, a providential god, the Judeo-Christian(-Islamic) account of creation, miracles, and reward and punishment in an afterlife, and is critical of the idea of the divine inspiration of religious texts; in political matters, it unequivocally supports republicanism, even democracy; and, in all matters, it argues for the necessity of toleration and the "freedom to philosophize." For those who know Spinoza's philosophy, this ought to sound familiar.Israel's book is divided into five parts. In the first, he sketches the general intellectual milieu of early seventeenth-century Western Europe. The second part describes Spinoza and his circle and the philosophy of the Ethics and Tractatus Theologico-Politicus. In Parts III and IV, Israel discusses the immediate reactions to Spinozism, the varieties of radical Enlightenment made possible by Spinoza, and the "intellectual counter-offensive" to naturalism, materialism, atheism, and republicanism. Part V concerns the "clandestine progress" of Spinozism and radical ideas in different countries after the banning and censorship of so many radical works, and, in a brief epilogue, Israel argues that it is Rousseau who effectively reconciled mainstream Enlightenment thought with its radical relative. This is a lot of territory to cover, and Israel covers it admirably, offering illuminating discussions of other key figures of the time: Leibniz, Malebranche, Bossuet, Locke, Bayle, Wolff, Vico, Diderot, and La Mettrie. Another strength of Israel's book is, however, the extent to which he portrays thinkers (some radicals, some reactionaries) and works that are less familiar to most working in the field today. We learn not only about such figures as Bredenburg, Fontenelle, Le Clerc, Leenhof, and Boulainvilliers, but also, in a charming but unfortunately short chapter, about Spinozistic novels from the eighteenth century.As someone trained in a philosophy department to work on the history of philosophy, I felt uneasy in one respect with this book. While Israel emphasizes the battles between philosophies and ideas, he does not concern himself so much with the process of doing philosophy. That is, if there is a failing in this book, it is that we are presented with descriptions of philosophical views without always being given an adequate account of why such views were held by individual thinkers or how the theses of the radical Enlightenment, say, are related to each... (shrink)

This paper examines questions regarding the nature of and need for a certain species of equality within the overall design of Plato’s prescriptive political philosophy, with particular reference to the Republic and Laws. A common, traditional, reasonable and yet incomplete interpretation of Plato relies on the notion that Plato’s political theory and, more particularly, his prescriptions for the city of speech and the second best city rest on an abiding belief in the need for social inequality and political hierarchy, and (...) thereby rejecting in the essence of things equality as a viable political concept. But perhaps a second look at Plato is in order here. This essay attempts to explore those elements of Plato’s conceptual and prescriptive theory that reflect a different attitude toward hierarchy, one that cannot be regarded as egalitarian in any modern sense of the word, but that might evince a facet of Plato that is at the very least open to the possibility of a more egalitarian view of politics and at most directed at promoting a more egalitarian politics that has been largely unrecognized by many of Plato’s readers and overlooked by most of his commentators. (shrink)

This chapter looks at a range of objections to theism that one might class as “logical.” Some of these objections aim to show that theism involves an internal logical contradiction. Others aim to show that theism is at least logically incompatible with other beliefs to which the theist is also typically committed. Also included are objections grounded in the thought that theism is nonsensical or meaningless. The chapter provides both an overview of this broad terrain, including a map of possible (...) responses to different kinds of objection, and then a number of examples. (shrink)