The book reconstructs the history of Western ethics. The approach chosen focuses the endless dialectic of moral codes, or different kinds of ethos, moral doctrines that are preached in order to bring about a reform of existing ethos, and ethical theories that have taken shape in the context of controversies about the ethos and moral doctrines as means of justifying or reforming moral doctrines. Such dialectic is what is meant here by the phrase ‘moral traditions’, taken as a name for (...) threads of moral discourse, made in turn of other interwoven threads, including transmission of shared codes, appeals to reform of prevailing custom, rational argument about the justification of some precept on the basis of some shared general teaching or principle, and rational argument about the ultimate basis for principles and justification of authoritative teaching. That is, the approach adopted to the reading of ethical texts depends on a firm belief in the fact that philosophers hardly created any ethical doctrine out of nothing. The main point this book tries to highlight is how different philosophical theories emerged and followed each other as a result of attempts at accounting for what was going on in the world of moral traditions. Changes were propelled by controversies between different schools, and highly abstract arguments were the unintended effects of moves made by controversialists forced to transform (and occasionally to turn upside down) their own doctrines in order to face the challenge posed by other arguments. This is the reason why the book examines not only texts that already enjoy pride of place in the history of philosophy (Aristotle, Kant, Hegel), but also other texts usually treated in the histories of religions (the Bible, the Talmud, the Quran), and others considered to be much less philosophical (Plutarchus, Pufendorf). -/- 1. Plato and a response to ethical scepticism. Two different traditions of morality in VI-V century Greece are described. The birth of philosophical questioning of traditional morality and temporal and spatial variation of custom is described within the context of the v century crisis, the demise of traditional aristocratic and tyrannical rule and the birth of democracy. Two conflicting answers to the challenge are reconstructed, namely conventionalist or immoralist theories formulated by the Sophists and the eudemonist and intellectualist Socratic theory. Plato’s own reformulation of Socrates answer to the Sophists is reconstructed. His psychological views, his classification of the four cardinal virtues and his political theory are described as parts of a unitary system, culminating in an extremely realist moral ontology identifying the idea of the good with the essence of the (moral and extra-moral) world itself. -/- 2. Aristotle and the invention of practical philosophy. Aristotle’s invention of practical philosophy as a field separated from first philosophy is shown to be an implication of his break with Plato moral ultra-realism. Aristotle’s agenda in his moral works is arguably dependent on a polemical intention, namely dismantling Socratic intellectualism. The semi-inductive or virtuously circular method of practical philosophy is illustrated, starting with the received opinions of the better and wiser individuals and trying dialectically to sift what is left of mistake and inconsistence in such opinions, finally trying to correct mistakes and make the overall practical science more consistent. The chapter illustrates then the relationship of individual ethics, or ‘monastics’, with the art and the science of the pater familias, or ‘economics’, and the science of the ruler and citizen, or politics. The nature of virtues, or better, excellences of character, is discussed, highlighting the basic role of hexis, or ‘disposition’. Prudence, or better practical wisdom, is the focus of the chapter. Its relationship with bouleusis or deliberation is examined, and its autonomous status vis-à-vis theoretical knowledge is stressed. -/- 3. Diogenes and philosophy as a way of life. The chapter provides an overview of Hellenistic ethics, which almost amounts to Hellenistic schools of philosophy, in so far as ‘philosophy’ became in these centuries primarily the name for a way of life. The typical character of the Cynical movement is highlighted, that of a school of life, not a school aimed at providing any kind of intellectual training was to be provided. -/- 4. Epicurus and ethics as self-care. The peculiar character of the Epicurean school is described, a combination of a science of well-being aiming, more than at pleasure as in the popular view, at reduction of useless suffering, of unnecessary needs, and at a balanced selection of pleasures of the best and most durable kind. -/- 5. Epictetus and ethics as therapy of the passions. The various phases of Stoicism are described, and the shifting place given to ethics in the Stoic system of idea, culminating in the paradoxical view of ethics, its impossibility in principle notwithstanding, as the only truly significant and necessary part of philosophy. Cicero is treated, showing how his own synthesis of various Hellenistic trends is as a truly philosophical enterprise, deserving serious consideration after one or two centuries when he was confined to the role of literate. Epictetus is chosen as the best example of what the Stoic tradition could yield, an art of living based on sophisticated introspection, in turn aimed at making a kind of cognitive therapy possible, dismantling obnoxious passions at their root by systematically correcting false representations. -/- 6. Philo and the reconciliation of Torah and Platonism. A reconstruction of basic ideas from a few books of the Hebrew Bible is provided, starting with the Prophetic tradition and the focus on God’s mercy as the source of motivation and standard for human behaviour. Then a comparative analysis is undertaken of a parallel tradition, namely the three codifications of the Torā (Law or, better, Instruction), highlighting how a core of moral ideas may be recognized as a basis and preamble of codification of civil law, cultural practice, and regulation of ritual purity. The importance of Leviticus is stressed as the turning point when emphasis mercy, typical of the Prophetic tradition, is combined with the legal tradition, yielding the change in sensibility of the Second Temple time. Philo of Alexandria is described as one of the three leading figures – together with Rabbi Hillel and Rabbi Yeshua – at the apex the emergence of the mentioned new sensibility, gradually including mercy as an essential part of justice and establishing the starting point of both the Rabbinic and the Christian tradition. This consists precisely in the precept of one’s neighbour’s love or of the golden rule, two eventually identical precepts whose meaning is arguably more sober and sensible than the long-lasting Christian tradition deriving from John and Augustine has made us believe and no novelty vis-à-vis so-called Ancient-Testament teachings. -/- 7. Augustine and Christianity as Neo-Platonism. The first section examines the moral doctrines of so-called 'ethical Treaties' from the Talmud, a group of treaties, among which the best known is Pirqé Avot, that were left out of the six "orders" of the canon as they did not fit in any of the six groups of issues ritual or legal on which the division was based. According to Maimonides, their peculiar theme is provided by the Deòt, 'opinions', i.e., mental dispositions, that is, the translation of the Greek term hexeis and Arab akhlak (in turn providing in this language the name for ethics as such). The three topics I reconstruct are: i) the notion of Torah: The Torah is understood as the world order itself, or as the ‘Wisdom’ that existed even before creation and was ‘the tool by which the world was built’; however, the Torah is an earthly and human entity, as it was "received" by humans, and from that very moment belongs to them; ii) the relationship between love of God and love of neighbour; the treaties require us to study and practice the Torah ‘for its own sake’, that is, require us to act out of love, not out of fear or hope of reward; iii) the idea of sanctification of daily life: having disappeared with the destruction of the Temple the possibility of any conflict between liturgical service and everyday life, the latter is assumed to be in itself divine service: to give food to the poor has the same value as sacrifices in the Temple, and as an implication, the insistence become recurrent on the goodness of created things in themselves along with a polemic against ascetic currents. The conclusions drawn are: i) the moral teachings of the Talmud and those of Yeshua are, rather than similar, virtually identical; one may safely say that the precept of love and the golden rule are central ones for all Talmudic rabbis, that mercy plays an indispensable role alongside with justice, and the latter is not a different thing from one’s neighbour’s love; ii) a peculiarity of Talmud rabbis facing Yeshua is the idea of study as worship, and knowledge as a source of justice; but this is an idea of Judaism after the Temple's destruction that cannot be attributed to the Pharisees of Yeshua’s time; iii) the relation of study and practice in the Talmud parallels that between faith and deeds in Paul's epistles, that is, respectively faith or learning are a necessary and sufficient condition to be recognized as righteous , but deeds are the inevitable effect of either faith or learning. The sayings ascribed to Yeshua are examined first, yielding the conclusion that a close equivalent may be found for every saying in Talmudic literature and yet the whole is ascribed to one rabbi, with rather consistent stress on God’s mercy and unconditional forgiving as the mark of true imitation of God. Thus, Yeshua’s teaching is pure Judaism. The third section describes briefly the galaxy of Gnostic currents and Manichaeism, trying to sketch the profile of moral teachings resulting from an encounter of Asian spiritual traditions, Hellenistic lore and sparks of teachings from apocalyptic Jewish currents. The last section summarizes the turbulent history of several encounters between Christian currents and Hellenistic philosophical schools. The first one was with late Cynicism. Recent, rather controversial, literature discovered the jargon and a few topics from the Stoic-Cynical popular philosophy in a few books from the New Testament itself. This, far from proving that Rabbi Yeshua had been influenced by cynic preachers, is a proof of the necessity felt by Christian preachers to translate the original ‘Christian’ teaching into a Greek lexicon deeply impregnated with cynic terminology. The second was with Platonism, yielding the mild and temperate moral teaching of Clemens of Alexandria, teaching the sanctity of nature and the human body, the joy of moderate fruition of ‘natural’ kinds of pleasures, and the beauty of the marital life – in short, the opposite of the standard picture of Medieval Christianity. Ambrose of Milan brings about a different kind of synthesis, namely with Middle Platonism, where Stoic themes prevail. The most shocking case is Augustine, where an early Manichean education is overcome in a former phase by a synthesis of Plotinian Neo-Platonism and Christian preaching, yielding a sustained polemic with the Manicheans and rather optimistic views on life and Creation, the body and sexuality, and Hebrew-Judaic tradition not far from Clemens of Alexandria. In a later phase, occasioned by controversy on the opposite front, with such Christian currents as the Pelagians and Donatists, Augustine comes back to heavily anti-Judaic and world-denying ascetic attitudes where is earlier Manichean upbringing seems to emerge again. The tragedy of medieval Christianity will be the later Augustine’s overwhelming influence. A final section is dedicated to the monastic tradition where a curious mixture of world-denying asceticism with an astonishingly penetrating ‘science’ of introspection emerges. -/- 8. Al Farabi and the reconciliation of Islam and Platonism. The Qurān and the qadit, that is, collections of sayings ascribed to the prophet Muhammad contain a wealth of precepts and catalogues of virtues mirroring moral contents from the Jewish and the Christian traditions, among them the basic notion of imitation of the Deity, where mercy is assumed to be its basic trait. An important tradition within Islam, namely Sufism, stressed to the utmost degree the role of mercy, turning Islam into a mystic doctrine centred on retreat from the world, abandonment to God’s will, and a peaceful and fraternal attitude to our fellow-beings. A secular literary tradition originating in the Sassanid Empire, the literature of advice to the Prince had for a time a widespread influence in the newly constituted Arabic-Islamic commonwealth. In a later phase, the legacy of Hellenic philosophy made its way into the intellectual elite of the Islamic world. The first important legacy was Platonic, and the Republic became the main text for Islamic Platonism. Al-Farabi wrote an enjoyable remake of the Platonic Republic, arguing that the citizen’s virtues were the basis on which the political building needs to rest. The secular lawgiver is enlightened by the light of reason in his everyday practice of governance, but room is made for the Prophet as the voice of revealed truth that confirms and completes the rational truth that philosophy may afford. In a second phase also Aristotelian and Stoic influence were assimilated. Miskawayh’s treatise was the masterwork at the time Arabic philosophy reached its Zenith. It is a treatment of the soul’s diseases and their remedies, combining the Aristotelian doctrine of the golden mean with the Stoic doctrine of the passions and elements of Galenic medicine. Towards the eleventh-twelve centuries a war raged among theologians and philosophers, finally won by the former with disappearance of philosophy as such. The newly established mainstream, yet, was no kind of intolerant fanaticism. It drew from the work of mystic theologian Al-Ghazālī, the best heir of Sufism, teaching a tolerant and peaceful attitude to our fellow-beings and a passive attitude to destiny as an expression of the Divine will. -/- 9. Moshe ben Maimon and the reconciliation of Torah and Aristotelian ethics. The encounter between the Talmudic tradition and Hellenic philosophy had taken place a first time in Alexandria at the time of Philo but the two traditions had parted way again. In fact, the kind of Platonic Judaism founded by Philo survived only within Christianity, in the fourth Gospel and then in writings by Clemens of Alexandria. The Talmudic literature had absorbed just less striking traits from the Hellenic Philosophy, namely an idea of ethics as care of the self and a role for the education of character as propaedeutic to theoretical knowledge. In the Arabic-Islamic world, a second round started when Jewish authors writing in Arabic undertook the task to prove the full compatibility of the tradition deriving from Torah and Platonic philosophy. The culmination of this attempt is provided by Moshe ben Maimon who tried to use Aristotelian ethics as a language into which the teaching from the Pirké Avot could be translated. -/- 10. Thomas Aquinas and the reconciliation of Christian morality and Aristotelian ethics. In the first section the fresh start is described of philosophical ethics in Latin Europe at the turn of the Millennium. In a first phase, Anselm and Peter Abelard built on a Platonic and Augustinian legacy. In this phase. remarkable innovations are introduced, including Abelard’s claim of the obliging character of erring consciousness. In a second phase, the rediscovery of Nicomachean Ethics thanks to Latin translation of Arabic versions gives birth to a new wave of ethical studies, recovering the very idea of Aristotelian practical philosophy, with the potential implication of full legitimization of natural morality, i.e. ethics without Revelation. Aquinas’s ethics is a theological ethics out of which it would be vain to try to extract a self-contained philosophical ethics. His treatment of topics in philosophical ethics, yet, does not boil down to repetition of Aristotelian arguments but is rather a creative reshaping of such arguments. For example, he introduces also in the practical philosophy a first principle parallel to the principle of non-contradiction; and he also carries out a synthesis of Aristotelianism, Stoicism, and neo-Platonism. Even though it is essentially moral theology, Aquinas’s doctrine - unlike Augustine – grants full citizenship to "natural" morality, firstly by rejecting the claim that the corruption of human nature due to the original sin is so radical as to leave "pure nature" incapable of moral goodness. The doctrine is presented in a more sophisticated formulation in a few of the Quaestiones, such as De Malo and De Veritate, in the Summa contra Gentes and in the commentaries to Aristotle than in the famous Summa Theologica, but the latter work includes the only or the largest exposition of some decisive part of the theory. Thus, the Summa Theologica should be read for what it is more than criticized for not being what it was not meant to be. It was not meant to be the brilliant synthesis of all that Reason he had been able to produce with what Revelation had added about which the Neo-Thomists used to dream, but rather a manual for the training of preachers and confessors, where theoretical claims are not too demanding and a few serious tensions are left. Besides a jump between the Prima Secundae and the Secunda Secundae, being the former an essay in virtue theory and the latter a handbook for confessors, the most serious tension is perhaps the one between the ethics of right reason presented in most of Ia-IIae and the eudemonistic ethics developed in quaestiones 1-5 of the same part; the alternative ethical theory which also may be found in Augustine, the Stoic view of a cosmic reason eventually coincident with the moral law, was believed by Anselm (followed by John Duns Scotus and William of Ockham) to be incompatible with eudemonism. It is questionable whether Thomas could reduce the tension proving that it is just an apparent tension, in so far as the right reason and bliss derived from knowledge of God tend to coincide, but this is just a conjecture. Thomas’s ethics is a virtue ethic, not a law-based one, and moral judgment focuses on the virtues, particularly charity, not on the commandments and even less on absolute prohibitions; Thomas, however, would not have considered a drastic alternative between law and the virtues such as the one which has been advanced in late twentieth-century philosophy to be justified. Nonetheless, when it discusses ‘special’ virtues, it ceases to be an ethics of virtue and becomes a disappointing and often contradictory discussion of legal and illegal acts. Such a discussion takes most of the time ‘reasonable’ middle positions on controversial issues but not the alternative approach that Aristotelianism would have made possible; even when some occasional Aristotelian claim shows up, such as money’s barrenness as a reason against usury, this seems to be made by an author who apparently ignores the Aristotelian Thomas of the Prima Secundae. It is an ethic of human autonomy which recognizes the binding character of the individual conscience and, potentially, even a duty to disobey unjust laws. It is true that what Thomas writes in his discussion of death penalty and persecution of heretics is simply disgusting, and yet we should blame Thomas the man, not Thomist ethical theory. Finally, Thomas’s ethics is not ethical ‘absolutism’, as both traditionalist Catholic theologians and secularist enemies of dogmatic morality tend to believe. It is instead an ethic of prudential judgment. Exceptions to this approach – or better results of logical fallacies – are such claims as the absolute character of negative precepts and of the existence of "intrinsically evil acts", claims that simply cease to make sense in the light of Thomas’s own distinction between human act and natural act, carrying consequences Thomas did not live long enough to draw or was not consistent enough to dare to draw. -/- 11. Francisco de Vitoria and casuistry. The first topic illustrated is the discussion about the notion of pura natura, namely the human condition after the original sin and before divine revelation. The core notion was already there in Aquinas but was later developed by Caietanus (Thomas de Vio) with a number of interesting implications: firstly a view of human nature as such much more positive than Augustine’s and his followers’ view, including both Calvinists and Jansenists; secondly, the implication that the philosopher’s morality, as opposed to the Christian’s morality, is a quite respectable kind of morality; thirdly, that theocracy and prosecution of the unfaithful lacked justification, with more far-fetching consequences than Aquinas himself had dared to draw. The second topic is casuistry, a new name for a comparatively older way of thinking, which was already there in late Stoicism and Cicero as well as in the Talmudic literature. This is an approach aimed at yielding probable enough solutions for doubtful cases even in absence of completely safe staring points. The genre developed from medieval reference books for confessors and became by the sixteenth-century a sophisticated tool-box for dealing with various fields of applied ethics. Francisco Vitoria, the main authority of Baroque Scholasticism, was a controversial figure, among the proponents of the new discipline of casuistry and a consistent proponent of more separation between the religious and the civil authority, stricter limits to the legitimacy of war, innate rights of non-Christian nations in the New World based on the notion of pura natura, providing a standard of ‘natural’ goodness, previous to revelation, on which the Indian nations were judged to live in a naturally good condition, provided with the institutions of family, justice, and religion had accordingly a right to full respect by Christian sovereigns. Bartolomé de Las Casas, arguing along similar lines, was the leader of a historical battle in defence of the rights of the Indios. -/- 12. Michel de Montaigne and the art of living. A short description of one of the Renaissance Phyrronism, one of the classical philosophies revived in the fifteenth and sixteenth century. Montaigne combines the sceptical epistemology with an understanding of ethics – indeed of philosophy as a whole – in terms of an art of living inspired by two basic ideas, sagesse, that is, practical wisdom as the only kind of rationality available after theology, science, and tradition have declared bankrupt, and an aesthetic ideal of self-transformation through the art of writing and introspection. -/- 13. Pierre Nicole and neo-Augustinianism. The chapter illustrates first the vicissitudes of Augustinianism newly born after the late medieval triumph of Thomist Aristotelianism in the alternative Protestant and Catholic versions processed by the Calvinists and the Jansenists. Then it illustrates the doctrines of Pierre Nicole, Blaise Pascal’s best disciple, on the impossibility of introspection, on the ubiquity of self-deception, on the incurably evil character of the passion of love, and on the two moralities, the one of the man of the world, the morality of honesty which is indispensable for granting peace and order but devoid of any true value for eternal salvation, since the same external behaviour may be prompted by opposite motivations, and the morality of charity, the only true one but also useless to society. The third topic is Pierre Malebranche’s view of self-deception as a ubiquitous phenomenon accounting for human action and responsibility and his reformulated theory of self-love, no less ubiquitous than for Nicole and yet not as incurably evil, given the distinction between morally indifferent and even necessary amour de soi and vicious amour proper, a distinction on which the whole of Rousseau’s moral and political theory rests. -/- 14. Samuel von Pufendorf and the new science of morality. The chapter is dedicated to the discovery of the idea of a ‘new moral science’. Hugo Grotius is discussed first highlighting the real character of his project, much closer to the Thomist idea of a natural law accessible to non-corrupted human reason when human beings are living in a state of pura natura. Then Hobbes’s combination of scepticism, voluntarism, and conventionalism is described and both the continuity with Grotius’s new science, in the search for non-revealed rational morality, and the break with him, in the adoption of voluntarism and refusal of an intellectualist view of natural law, are illustrated. Pufendorf’s work is illustrated as a synthesis of the two previous attempts and the – up to Schneewind underestimated – paradigmatic example of the new science of morality. -/- 15. Richard Cumberland and consequentialist voluntarism. The chapter gives an overview of eighteenth-century Anglican ethics, noticing how the Cambridge tradition gave special weight to natural theology as opposed to positive or revealed theology – and how two Cambridge fellows, John Gay and Thomas Brown, elaborated on Cumberland’s (and Malebranche’s, as well as Leibniz’s) strategy for finding a third way between intellectualist view and voluntarist view of the laws of nature. The result of their elaboration was a kind of a rational-choice account of the origins of natural laws, where a law-giver God chooses among a number possible sets of laws on a maximizing criterion, and God’s maximandum is happiness for his creatures. The chapter notices also how such a solution aimed at solving at once the problem of evil and that of the foundation of moral obligation by proving how God’s choice was justified as far as it was the one minimising the amount of suffering in the world. 16. Richard Price and intuitionism. The chapter describes first the doctrines of the Cambridge Platonists, an example of hyper-rationalist reaction to Calvinism. Secondly it describes the sophisticated and universally ignored – from Sidgwick to Anscombe –version of what was later labelled ‘ethical intuitionism’ – showing how it escapes familiar objections and misrepresentations of intuitionism – from Mill to Rawls – in grounding its argument on transcendental arguments while carefully avoiding recourse to introspection and psychological evidence, which has been taken as a too easy target by critics of intuitionism. Thirdly, the chapter discusses Whewell’s ‘philosophy of morality’, as opposed to ‘systematic morality’, not unlike Kant’s distinction between a pure and an empirical moral philosophy. Whewell worked out a systematization of traditional normative ethics as a first step before its rational justification; he believed that the point in the philosophy of morality is justifying a few rational truths about the structure of morality such as to rule hedonism, eudemonism, and consequentialism; yet a system of positive morality cannot be derived solely from such rational truths but requires consideration of the ongoing dialectics between idea and fact in historically given moralities. Whewell’s intuitionism turns out closer to Kantian ethics than commentators have made us believe until now, and quite different from what Sidgwick meant by intuitionism. -/- 17. Adam Smith and the morality of role-switch. The chapter describes first, Hutcheson’s attempt at basing the ‘new science’ of natural law on different bedrock than Pufendorf and the English Platonists, namely a moral sense, a faculty whose existence is assumed to be proved on an empirical basis. The second step is a reconstruction of Hume’s rejoinder in terms of a new science of man including morality on an ‘experimental’ basis, that is, a ‘Newtonian’ hypothetical-deductive approach, distinguished from Hutcheson’s allegedly uncritical descriptive approach to human nature. The third step is a reconstruction of Adam Smith theory of morality understood as emerging from a spontaneous interplay of exchanges of situations (the most basic meaning of the word ‘sympathy’ as construed by this author). -/- 18. Jeremy Bentham and utilitarianism. The bulk of the chapter is dedicated to the doctrines of Jeremy Bentham. The Enlightenment spirit that suggested the idea of a new morality, free from religion, is illustrated. The notion of utility is illustrated as well as the subsequent formulations of the principle of utility. The idea of felicific calculus is discussed, showing how its inner difficulties prompted several reformulations of the principle of utility in order to avoid undesirable implications of proposed formulations. The role of the thesis of spontaneous convergence between interest and duty is discussed, showing how it left numberless questions open, and the distinction between the virtues of prudence, justice and beneficence is described as a way out of the deadlocks of classical utilitarianism. After Bentham, Mill’s reformed utilitarianism is reconstructed, showing how it is a kind of mixed system – as closer to common sense as it gives up Bentham’s claims to consistency and simplicity – resulting as unintended consequences from the controversies in which Mill was too keen to engage. The hidden agenda of the controversy between Utilitarianism and Intuitionism, going beyond the image of the battle between Prejudice and Reason, is described, showing how both competing philosophical outlooks turn out to be more research programs than self-contained doctrinal bodies, and such programs appear to be implemented, and indeed radically transformed while in progress thanks to their enemies no less than to their supporters. -/- 19. Immanuel Kant, practical reason and judgment. The chapter argues that Kant took from Moses Mendelssohn the idea of a distinction between geometry of morals and a practical ethic. He was drastically misunderstood by his followers precisely on this point. He had learned from the sceptics and the Jansenists the lesson that men are prompted to act by deceptive ends, and he was aware that human actions are also empirical phenomena, where laws like the laws of Nature may be detected. His practical ethics made room for judgment as a holistic procedure for assessing the saliency of relevant moral qualities in one given situation; this procedure yields the same results as the geometry of morals does for abstract cases but does so immediately and without balancing conflicting duties with each other, since what makes for the salient quality of a situation is perceived from the very beginning. Kant's practical philosophy is richer than the received image, making room for an ‘empirical moral philosophy’ or moral anthropology including treatment of commerce, needs, value and price, happiness and well-being; the overall social theory and philosophy of history is less different from Adam Smith's than the received image makes believe; the paradox of happiness is central to Kant's philosophy; a distinction between happiness and well-being is clearly drawn; the distinction plays a basic role in establishing a link between the economic and the moral life. -/- 20. Georg Wilhelm Friedrich Hegel and the critique of abstract universalism. The chapter describes first the Romantic movement and the implications some of its concerns, rescuing passions, community, tradition, the individual as the bearer of a unique destiny, and the longing for organic unity between the individual, mankind and nature. Hegel’s contribution is discussed then, highlighting how, on the one hand, he shared a number of these concerns and on the other he had more rationalist leanings. The notion of morality is the pivotal point of the reconstruction, highlighting how Hegel construes this notion as a key to his own diagnosis of the malaise of modernity – the separation of individual and Gemeinschaft – and how his attack on Kant turns around this very idea. -/- 21. Friedrich Nietzsche against Christianity and the Enlightenment. The chapter illustrates first the idea of deconstruction of the back-world of values. Nietzsche claims to be legitimate heir of the French moralists, Leibniz, Kant and Hegel, in so far as he allegedly carries out to its deepest implications their discovery of what lies behind traditional naïve belief in the existence of an objective realm of values just waiting for description by the philosopher. The two exemplars form which genealogy draws inspiration are the classical philologist’s historical reconstructions of lost meanings and the chemist’s decomposition of elements. Then the genealogy of the notions of good and evil carried out in the first dissertation of Genealogy of morals is illustrated with its paradoxical conclusion that will to power is in fact the only ‘genuine’ kind of goodness. The third point illustrated is the dialectic of ascetism and self-realization with its ambiguous outcome. The suggested interpretation of such outcome is that Nietzsche’s normative ethics is a kind of virtue ethics taking an aesthetic ideal as a normative standard -/- 22. George Edward Moore and ideal utilitarianism. The chapter discusses the ideas of common sense and common-sense morality in Sidgwick. I argue that, far from aiming at overcoming common-sense morality, Sidgwick aimed purposely at grounding a consist code of morality by methods allegedly taken from the natural sciences to reach, also in ethics, the same kind of “mature” knowledge as in the natural sciences. His whole polemics with intuitionism was vitiated by the a priori assumption that the widespread ethos of the educated part of humankind, not the theories of the intuitionist philosophers, was what was worth considering as the expression of intuitionist ethics. In spite of a naïve positivist starting-point, Sidgwick was encouraged by his own approach in exploring the fruitfulness of coherentist methods for normative ethics. Thus, Sidgwick left an ambivalent legacy to twentieth-century ethics: the dogmatic idea of a “new” morality of a consequentialist kind, and the fruitful idea that we can argue rationally in normative ethics albeit without shared foundations. Then it reconstructs the background of ideas, concerns and intentions out of which Moore’s early essays, the preliminary version, and then the final version of Principia Ethica originated. I stress the role of religious concerns, as well as that of the Idealist legacy. I argue that PE is more a patchwork of rather diverging contributions than a unitary work, not to say the paradigm of a new school in Ethics. I add a comparison with Rashdall’s almost contemporary ethical work, suggesting that the latter defends the same general claims in a different way, one that manages to pave decisive objections in a more plausible way. I end by suggesting that the emergence of Analytic Ethics was a more ambiguous phenomenon than the received view would make us believe, and that the wheat (or some other gluten-free grain) of this tradition, that is, what logic can do for philosophy, should be separated from the chaff, that is, the confused and mutually incompatible legacies of Utilitarianism and Idealism. -/- 23. Edmund Husserl and the a-priori of action. The chapter illustrates first the idea of phenomenology and the Husserl’s project of a phenomenological ethic as illustrated in his 1908-1914 lectures. The key idea is dismissing psychology and trying to ground a new science of the a priori of action, within which a more restricted field of inquiry will be the science of right actions. Then the chapter illustrates the criticism of modern moral philosophy carried out in the 1920 lectures, where the main target is naturalism, understood in the Kantian meaning of primacy of common sense. The third point illustrate is Adolph Reinach’s theory of social acts as a key the grounding of norms, a view that basically sketches the very ideas ‘discovered’ later by Clarence I. Lewis, John Searle, Karl-Otto Apel and Jürgen Habermas. A final section is dedicated to Nicolai Hartman, who always refused to define himself a phenomenologist and yet developed a more articulated and detailed theory of ‘values’ – with surprising affinities with George E. Moore - than philosophers such as Max Scheler who claimed to Husserl’s legitimate heirs. -/- 24. Bertrand Russell and non-cognitivism. The chapter reconstructs first the discussion after Moore. The naturalistic-fallacy argument was widely accepted but twisted to prove instead that the intuitive character of the definition of ‘good’, its non-cognitive meaning, in a first phase identified with ‘emotive’ meaning. Alfred Julius Ayer is indicated as a typical proponent of such non-cognitivist meta-ethics. More detailed discussion is dedicated to Bertrand Russell’s ethics, a more nuanced and sophisticated doctrine, arguing that non-cognitivism does not condemn morality to arbitrariness and that the project of a rational normative ethics is still possible, heading finally to the justification of a kind of non-hedonist utilitarianism. Stevenson’s theory, another moderate version of emotivism is discussed at some length, showing how the author comes close to the discovery of the role of a pragmatic dimension of language as a basis for ethical argument. Last of all, the discussion from the Forties about Hume’s law is described, mentioning Karl Popper’s argument and Richard Hare’s early non-cognitivist but non-emotivist doctrine named prescriptivism. -/- 25. Elizabeth Anscombe and the revival of virtue ethics. The chapter discusses the three theses defended by Anscombe in 'Modern Moral Philosophy'. I argue that: a) her answer to the question "why should I be moral?" requires a solution of the problem of theodicy, and ignores any attempts to save the moral point of view without recourse to divine retribution; b) her notion of divine law is an odd one more neo-Augustinian than Biblical or Scholastic; c) her image of Kantian ethics and intuitionism is the impoverished image manufactured by consequentialist opponents for polemical purposes and that she seems strangely accept it; d) the difficulty of identifying the "relevant descriptions" of acts is not an argument in favour of an ethics of virtue and against consequentialism or Kantian ethics, and indeed the role of judgment in the latter is a response to the difficulties raised by the case of judgment concerning future action. A short look at further developments in the neo-naturalist current is given trough a reconstruction of Philippa Foot’s and Peter Geach’s critiques to the naturalist-fallacy argument and Alasdair MacIntyre’s grand reconstruction of the origins and allegedly unavoidable failure of the Enlightenment project of an autonomous ethic. -/- 26. Richard Hare and neo-Utilitarianism. The chapter addresses the issue of the complex process of self-transformation Utilitarianism underwent after Sidgwick’s and Moore’s fatal criticism and the unexpected Phoenix-like process of rebirth of a doctrine definitely refuted. A glimpse at this uproarious process is given through two examples. The first is Roy Harrod Wittgensteinian transformation of Utilitarianism in pure normative ethics depurated from hedonism as well as from whatsoever theory of the good. This results in preference utilitarianism combined with a ‘Kantian’ version of rule utilitarianism. The second is Richard Hare’s two-level preference utilitarianism where act utilitarianism plays the function of eventual rational justification of moral judgments and rule-utilitarianism that of action-guiding practical device. -/- 27. Hans-Georg Gadamer and rehabilitation of practical philosophy. The post-war rediscovery of ethics by many German thinkers and its culmination in the Sixties in the movement named ‘Rehabilitation of practical philosophy’ is described. Among the actors of such rehabilitation there were a few of Heidegger’s most brilliant disciples, and Hans-Georg Gadamer is chosen as a paradigmatic example. His reading of Aristotle’s lesson I reconstructed, starting with Heidegger’s lesson but then subtly subverting its outcome thanks to the recovery of the central role of the notion of phronesis. -/- 28. Karl-Otto Apel and the revival of Kantian ethics. Parallel to the neo-Aristotelian trend, there was in the Rehabilitation of practical philosophy a Kantian current. This started, instead than the rehabilitation of prudence, with the discovery of the pragmatic dimension of language carried out by Charles Peirce and the Oxford linguistic philosophy. On this basis, Karl-Otto Apel singled out as the decisive proponent of the linguistic and Kantian turn in German-speaking ethics, worked out the performative-contradiction argument while claiming that this was able to provide a new rational and universal basis for normative ethics. An examination of his argument is some detail is offered, followed by a more cursory reconstruction of Jürgen Habermas’s elaboration on Apel’s theory. -/- 29. John Rawls and public ethics as applied ethics. Rawls’s distinction between a “political” and a “metaphysical” approach to one central part of ethical theory, namely the theory of justice, is interpreted as a formulation of the same basic idea at the root of both the principles approach and neo-casuistry, both discussed in the following chapter, namely that it is possible to reach an agreement concerning positive moral judgments even though the discussion is still open – and in Rawls’ view never will be close – on the basic criteria for judgment. -/- 30. Beauchamp and Childress and bioethics as applied ethics. The chapter presents the revolution of applied ethics while stressing its methodological novelty, exemplified primarily by Beauchamp and Childress principles approach and then by Jonsen and Toulmin’s new casuistry. -/- . (shrink)

We note an increasing consciousness of weakness of legal methodology taught to law students today: The students get neither real idea nor feeling of legal decision-making as mixture of legal matters, issue of facts, personal inputs, diverging interests, and the interplay with other actors. For minimize these defects it is necessary that law students learn in legal studies the following points: (1) Legal decision-making is a special kind of decision-making and is embedded in all problems of this process. (2) Jurisprudence (...) is a hybrid science: It deals with facts of issue as well with legal matter. (3) Jurisprudence will be understood as transnational science and requires greater cooperation between law schools all over the world. (4) Legal education should focus on general principles and legal tools rather than on detailed rules. (5) Legal theory should demonstrate students our lack of understanding legal decision-making. (6) A realistic legal methodology has to take into account the impossibility of absolute certainty of the correctness of legal decision. (7) It is important to point out that analysis of facts of the case as crucial part of legal methodology requires teaching systems to introduce students in the respective techniques in practice like case studies, projects as well as legal clinics or SASLA-system. (shrink)

Volunteering in Ukraine is becoming an increasingly popular phenomenon that occupies an important place in the life of society. Many people choose volunteering as a way to help people in difficult life circumstances, as well as to develop their own personality and engage in active civic participation. As a significant social phenomenon, volunteering has its own ideological foundations that define its core values and principles. Volunteering is based on the desire to help people and nature regardless of their status, (...) nationality, religion, or political beliefs. The purpose of the study. The current study examines the ideological foundations of volunteering in Ukraine in wartime and their significance for volunteering, to study the practical experience of volunteers in Ukraine in 2014-2023, and to examine the peculiarities of the legal regulation of volunteering in Ukraine in wartime. Methods. Achieving the goal and objectives of the study was made possible by using a set of interrelated modern general scientific and special methods and approaches. The systematic approach made it possible to study volunteering as a holistic set of elements in the totality of the connections between them. Through the use of the method of systematization, the author provides a review of the legal framework for volunteering, factor analysis is used to determine the factors influencing the relationship between the state and society in the field of volunteering, and system analysis is used to assess the state of relations between the state and society in Ukraine at this stage through its quantitative indicators.Results. According to the study “Volunteer Movement in Ukraine”, prepared by GfK Ukraine on behalf of the UN in Ukraine, Ukrainian citizens pay great attention to the volunteer movement in the development of social processes: 62% recognize the role of volunteers in the changes in the last year; 85% believe that the volunteer movement helps strengthen peace; 81% tend to consider the volunteer movement an essential component of civil society. Regarding the legal regulation of volunteer activities in Ukraine, the Law of Ukraine “On Volunteer Activity” of April 19, 2011, No. 3236-VI was adopted in April 2011. The Law of Ukraine of 15.08.2022 No. 2519-IX On Amendments to the Law of Ukraine “On Volunteer Activity” on Support of Volunteer Activity regulates social relations related to volunteer activity in Ukraine. Discussion. One of the key principles of volunteering in Ukraine is selflessness and the ability to work in extreme conditions. Volunteers often work in difficult and dangerous conditions that require a high level of professionalism and skills. For many volunteers, the Ukrainian revolution of 2013-2014 and the events in eastern Ukraine were turning points that forced them to change their attitude to their own lives and start helping others. Ukrainian volunteers are an example of community and state cooperation that contributes to ensuring security and helping victims. They have shown that volunteering can be an effective tool in the fight against war and its consequences. Many volunteer organizations provided free medical care, took on the responsibility of supplying the military with necessary items and military equipment, organized the evacuation of people from the war zone, and provided psychological support to the military and their families. Conclusions.Volunteering in Ukraine is not a new phenomenon, but the war with Russia has become a catalyst for its development. This is a great example of how crises can encourage people to act together and interact to achieve a common goal. Volunteerism in Ukraine demonstrates the importance of spiritual unity and cooperation in difficult times, and is one of the most striking examples of civil society in action. The ideological principles of volunteering in Ukraine include non-profitability, openness, spirituality, and humanism, transparency and openness, security, and cooperation with government agencies and the military. The volunteer movement in Ukraine, especially in times of war, is an important factor in ensuring security and helping victims. Involvement of different groups of the population in volunteer activities, as well as cooperation with state and international structures, are important to ensure the effectiveness and success of volunteer activities. (shrink)

The aim of the article is to answer the question if accession can be maintained as a separate and independent mode of acquisition and loss of ownership in the Lithuanian civil law. Although this mode takes its beginning in the Roman law and is well-known in other European jurisdictions, the situation in Lithuania is less clear because the accession is almost totally absent from the legal texts of the Lithuanian positive civil law, court decisions and legal doctrine (...) as well. Thus, a legal analysis confined to the linguistic analysis of law would come to the conclusion that Lithuanian law functions without the accession. Nevertheless, a deeper analysis of the Lithuanian Civil Code and case law reveals a different view. To respond to the posed question, the article analyses the functions and the concept of accession as one of the aspects of a broader property law principle, namely, of unity. The essence of the latter is that one thing presupposes one right of ownership and it is inconceivable to hold several full ownerships into the same thing. In this respect, accession plays an important role protecting the legal interests of the third parties. Also, the application of accession in other continental European countries and the solutions proposed by the Draft Common Frame of Reference is analysed. Further, the analysis turns to the Lithuanian positive law and case law. In spite of the lack of express reference to the accession rule, careful analysis shows that, in fact, the accession rule is established in the Lithuanian Civil Code, albeit it could be found in various forms and in several different units of the Civil Code. Also, Lithuanian courts routinely apply the rules on accession in practice. Even more, the analysis shows that the Lithuanian Civil Code is not devoid of the rules of accession, but, on the opposite, this legal institute is over-regulated and, in part, incoherent. This quality can be explained as a consequence of an imprecise legal drafting. The final conclusion is drawn that accession is a separate and fully working legal institute of Lithuanian civil law, although to reach its coherent application a certain interpretative position should be adopted. (shrink)

The aim of this research was to analyse Chinese legal terminology related to limits of freedom of contract in juxtaposition with other European and Asian legal systems. The study was limited to state, law and publicity. The purpose of the comparison was to add a broader perspective to the research on Chinese legal terminology. The research material included civil codes and contract laws of selected European and Asian countries. Among the European codes the great ones were obviously included – (...) French, Austrian and German, as well as those of less importance, but still relevant in Europe, such as Italian, Spanish codes or Swiss Law of Obligation, and also codes of Slavic and simultaneously post-socialist countries, like Poland, Czech Republic and Russia. In the case of Asia, the codes of China, Japan, South Korea and Vietnam were analysed. The question asked was whether the terminology used in Chinese law is unique or repeated and if so, how common it is in comparison with other legal systems. The research methods included the parametric approach to legal terminology comparison and techniques of legal construction (interpretation). (shrink)

This chapter proposes a dialectical approach to legal interpretation, consisting of three dimensions: a formalization of the canons of interpretation in terms of argumentation schemes; a dialectical classification of interpretive schemes; and a logical and computational model for comparing the arguments pro and contra an interpretation. The traditional interpretive maxims or canons used in both common and civil law are translated into defeasible patterns of arguments, which can be evaluated through sets of corresponding critical questions. These (...) interpretive argumentation schemes are classified in general categories and a distinction is drawn between schemes supporting and rebutting an interpretation. This framework allows conceiving statutory interpretation as a dialectical procedure consisting in weighing arguments pro and contra an interpretation. This procedure is formalized and represented computationally through tools from formal argumentation systems. (shrink)

This book brings together the most authoritative articles on Law and Economics and the interaction between the two disciplines as well as the use of economic tools to analyse legal problems. Aimed at students experiencing the subject for the first time, the selections are interlaced with a wealth of features including explanatory introductions and exercises. Key features of the reader include: - The accessibility of the material: the articles should be understandable to those with only a limited background (...) in economics and law. - The book’s focus on the most important and basic – foundational – issues in law and economics. - An exposition of the opposition between the different legal systems that exist in the world including common law, civil law and public law. - Debates viewed from the perspective of the scholars from a range of backgrounds are presented as well as all the key figures in economics and in law. The book should prove to be an essential resource to all students studying this burgeoning field and represents an exciting introduction to one of the key disciplines which has grown up in the social sciences in recent times. (shrink)

Relying on the systematic, logical, and analytical methods, national legislation and some internationally accepted guidelines, as well as on the research conducted by the Lithuanian scientists and law practitioners, this article consistently and comprehensively deals with the problems arising in the areas of interpretation and application of tax law. The article examines the relevant tax concepts, studies the tax law system, deals with the relevant issues arising in the field of application of legal regulations on taxation, and provides (...) a particularly detailed analysis of court jurisprudence within the context of the relationship between tax and law. On the basis of the analysis conducted, it was established that the basis for the Lithuanian tax law system consists of the Constitution of the Republic of Lithuania; the Law on Tax Administration; tax laws that lay down specific taxes and of by-laws adopted on their basis; national legal regulations that contain a consideration attribute and set mandatory payments to the State budget; the Law on Customs; ratified international agreements; the European Union legal regulations to the extent they are related to the duties, import excise duty, and value added tax; and the European Union directives in respect of direct and indirect taxes and the extent to which they are related to tax administration. When relationships in public law are directly regulated by the relevant public law regulations, it is not private law regulations, but the corresponding public law regulations that must be applied. In order to determine the need for tax authorities to rely on the regulations of the Civil Code, it is necessary to state the necessity to assess legal relationships from the point of view of private law or to identify a gap in legal regulation of public law due to which the norms of the Civil Code are subsidiary. Prior to establishing the tax base, the tax authority does not have to rebut transactions in civil procedure. The taxpayer’s obligation to fulfil tax liabilities that are properly prescribed by tax laws is not called into question by unlawful acts of other persons which constitute grounds for their civil (non-contractual) liability for the damages caused. The factual circumstances of tax relations established in the court cases heard in criminal and/or administrative procedures, do not need to be proved again – they are relied on in the course of tax inspections or when hearing tax disputes. The principle of equality of taxpayers requires tax administrators to give equal treatment to the facts with respect to all participants regarding the same tax relationship and obliges taxpayers to pay taxes honestly, because non-payment of taxes is a breach of public interest and therefore of this principle. In accordance with the principle of general applicability and equality, each taxpayer has an obligation to pay taxes as prescribed in tax legislation observing the calculation and payment procedures stipulated in the tax legal regulations, whereas the amount payable as established by the tax administrator shall be regarded as well-founded to the extent that it does not exceed the criterion of equality and reasonableness. The principle of clarity of taxation requires the tax administrator to adopt clear and comprehensive decisions with respect to the taxpayer and therefore to ensure their rights and legitimate interests. In the calculation of tax by applying the principle of primacy of content over form, it is necessary to establish that a transaction, an economic deal or indeed any group thereof has been concluded for the purpose of obtaining tax benefits. (shrink)

This unique publication offers a complete history of Roman law, from its early beginnings through to its resurgence in Europe where it was widely applied until the eighteenth century. Besides a detailed overview of the sources of Roman law, the book also includes sections on private and criminal law and procedure, with special attention given to those aspects of Roman law that have particular importance to today's lawyer. The last three chapters of the book offer an overview of the history (...) of Roman law from the early Middle Ages to modern times and illustrate the way in which Roman law furnished the basis of contemporary civil law systems. In this part, special attention is given to the factors that warranted the revival and subsequent reception of Roman law as the 'common law' of Continental Europe. Combining the perspectives of legal history with those of social and political history, the book can be profitably read by students and scholars, as well as by general readers with an interest in ancient and early European legal history. The civil law tradition is the oldest legal tradition in the world today, embracing many legal systems currently in force in Continental Europe, Latin America and other parts of the world. Despite the considerable differences in the substantive laws of civil law countries, a fundamental unity exists between them. The most obvious element of unity is the fact that the civil law systems are all derived from the same sources and their legal institutions are classified in accordance with a commonly accepted scheme existing prior to their own development, which they adopted and adapted at some stage in their history. Roman law is both in point of time and range of influence the first catalyst in the evolution of the civil law tradition. (shrink)

While in the majority of English-speaking territories the dominant legal tradition iscommon law, in Louisiana and Quebec the native language is English and the legal system stems from continentalcivil law. Both the Louisiana Civil Code and the Civil Code of Quebec take root in the European codification movement, following Code Napoleon. Bearing in mind the link between law and language, these jurisdictions provide a unique source of Englishcivil lawterminology with well-founded conceptual background.The civil codes of (...) Louisiana and Quebec seem to be potentially useful for the translation of Polish private law into English. Yet there are some reservations which should be considered. By comparing two different translations of Article 292 of the Polish Civil Code, this paper is intended to contribute to the debate on the use of Quebec and Louisiana terminology in Polish-English legal translation. (shrink)

Arthur Kaufmann is one of the most prominent figures among the contemporary philosophers of law in German speaking countries. For many years he was a director of the Institute of Philosophy of Law and Computer Sciences for Law at the University in Munich. Presently, he is a retired professor of this university. Rare in the contemporary legal thought, Arthur Kaufmann's philosophy of law is one with the highest ambitions — it aspires to pinpoint the ultimate foundations of law by explicitly (...) proposing an ontology, a general theory of knowledge and concept of a person. Kaufmann's work derives, first of all, from the thinking of Gustav Radburch, his teacher, and then from ideas of Karl Engish and Hans-Georg Gadamer. The philosophy undertakes to pursue the ultimate foundation of law, law which is understood by Kaufmann, first of all, as a "concrete judgement" that is, what is right in a concrete situation. Justice belongs to the essence of law and "unjust law" is contradictio in adiectio. Kaufmann opposes all those theories, which as the only foundation for establishing just law (Recht) adopt legal norms (Gesetz). In Kaufmann's opinion , such theories are powerless in the face of all types of distortions of law rendered by political forces. He suggests that the basic phenomenon which needs to be explained and which cannot be disregarded by a philosopher of law is so-called "legal lawlessness" ("Gestzliches Unrecht"). "Legal lawlessness" which forms a part of life experience for the people of twentieth century totalitarian states. It proved "with the accuracy of scientific experiment" that the reality of law consists of something more than bare conformity with legal norms. The existence of lex corrupta indicates that law contains something "non-dispositive" which requires acknowledgment of both law-maker and judge. Kaufmann, accepting the convergent concept of truth and cognition, assumes that "non-dispositive" content, emerging as the conformity of a number of cognitive acts of different subjects (inter-subjective communicativeness and verifiability), indicates the presence of being in this cognition. The questions "What is law?" and "What are the principles of a just solution?" lead straight to the ontology of law, to the question about the ontological foundations of law. Kaufmann discerns the ontological foundations of law in the specifically understood "nature of things" and, ultimately, in a "person". He proposes a procedural theory of justice, founded on a "person". In my work, I undertake to reconstruct the train of thought which led Kaufmann to the recognition of a "person" as the ontological foundation of law. In the first part, the conception of philosophy adopted by Kaufmann, initial characteristics of law — of reality which is the subject of analysis, as well as, the requirements for proper philosophical explanation of law posed by Kaufmann are introduced. In the second, Kaufmann's reconstruction of the process of the realisation of law is presented. Next, the conception of analogy which Kaufmann uses when explaining law is analyzed. In the fourth part, Kaufmann's conception of ontological foundations of law is discussed. A critical analysis is carried out in which I demonstrate that the theory of the ontological foundation of law proposed by Kaufmann and the concept of a person included in it do not allow a satisfac¬tory explanation of the phenomenon of "legal lawlessness" and lead to a number of difficulties in the philosophical explanation of law. Finally, the perspectives of a proper formulation of the issue of the ontological foundations of law are drafted in the context of the analyzed theory. My interest is centered on the conception of philosophy adopted by Kaufmann, according to which the existence of the reality is inferred on the basis of a certain configuration of the content of consciousness, whereas at the point of departure of philosophy of law, the data to be explained is a certain process, which is, basically, a process of cognition, while the reality appears only as a condition for the possibility of the occurrence of the process. I wish to argue that the difficulties which appear in the explanation of law are a consequence of the assumed fundamental philosophical solu¬tions, which seem to be characteristic, though usually not assumed explicitly, in philoso¬phy and theory of law dominant at present in continental Europe. Thereby, I wish to show the significance of ontological and epistemological solutions to the possibility of a proper formulation of the problems posed by philosophy and theory of law. Kaufmann proclaims himself in favour of a philosophy which poses questions about the ultimate foundations of understanding of the reality. In epistemology, he assumes that answers to the questions "What is reality like?" and ultimately "What is real?" are inferred on the basis of uniformity of a cognitive acts of different subjects. Cognition of the reality is accomplished exclusively through the content of conceptual material. The two fundamental questions posed by philosophy of law are "What is just law?" and "How is the just law enacted?" The latter is a question about the process of achieving a solution to a concrete case. Since, in Kaufmann's opinion, law does not exist apart from the process of its realisation, an answer to the question about the manner of realisation of law is of fundamental significance to answering the question: "What is law?" and to the explanation of the question about the ontological grounding of law, which is, as well, the foundation of justice. The proper solution has to take into account the moment of "non-dispositive" content of law; its positiveness understood as the reality and, at the same time, it has to point to the principles of the historical transformation of the content. Law, in the primary meaning of the word, always pertains, in Kaufmann's opinion, to a concrete case. A legal norm is solely the "possibility" of law and the entirely real law is ipsa res iusta, that which is just in a given situation. Determination of what is just takes place in a certain type of process performed by a judge (or by man confronted with a choice). Kaufmann aims to reconstruct this process. A question about the ontological foundation of law is a question about the ontological foundations of this process. In the analyzed theory it is formulated as a question about the transcendental conditions, necessary for the possibility of the occurrence of the process: how the reality should be thought to make possible the reconstructed process of the realisation of law. Kaufmann rejects the model for finding a concrete solution based on simple subsump¬tion and proposes a model in which concrete law ensues, based on inference by analogy, through the process of "bringing to conformity" that which is normative with that which is factual. Kaufmann distinguishes three levels in the process of the realisation of law. On the highest level, there are the fundamental legal principles, on the second legal norms, on the third — concrete solutions. The fundamental principles of law are general inasmuch as they cannot be "applied" directly to concrete conditions of life, however, they play an important part in establishing norms. A judge encounters a concrete situation and a system of legal norms. A life situation and norms are situated on inherently different levels of factuality and normativeness. In order to acquire a definite law both a norm (system of norms) and a life situation (Lebenssachverhalt) should undergo a kind of "treatment" which would allow a mutual conformity to be brought to them. Legal norms and definite conditions of life come together in the process of analogical inference in which the "factual state" ("Tatbestand") — which represents a norm, and in the "state of things" ("Sachverhalt") — which represents a specific situation are constructed. A "factual state" is a sense interpreted from a norm with respect to specific conditions of life. The "state of things" is a sense constructed on the basis of concrete conditions of life with respect to norms (system of norms). Legal norms and concrete conditions of life meet in one common sense established during the process of realisation of law. Mutatis mutandis the same refers to the process of composition of legal norms: as the acquisition of concrete law consists in a mutual "synchronization" of norms and concrete conditions of life, so acquisition of legal norms consists of bringing to conformity fundamental principles and possible conditions of life. According to Kaufmann, both of these processes are based on inference through analogy. As this inference is the heart of these processes it is simultaneously a foundation finding just law and justice. How does Kaufmann understand such an inference? As the basis for all justice he assumes a specifically interpreted distributive justice grounded on proportionality. Equality of relations is required between life conditions and their normative qualification. Concrete conditions of life are ascribed normative qualification not through simple application of a general norm. More likely, when we look for a solution we go from one concrete normative qualified case to another, through already known "applications" of norms to a new "application". The relation between life conditions and their normative qualifica¬tion has to be proportional to other, earlier or possible (thought of) assignments of that which is factual to that which is normative. Law as a whole does not consist of a set of norms, but only of a unity of relations. Since law is a, based on proportion, relative unity of a norm and conditions of life, in order to explain law in philosophical manner, the question about ontological base of this unity has to be asked. What is it that makes the relation between a norm and conditions of life "non-dispositive"? What is the basis for such an interpretation of a norm and case which makes it possible to bring a norm and conditions of life into mutual "conformity"? This is a question about a third thing (next to norms and conditions of life), with respect to which the relative identity between a norm and conditions of life occurs, about the intermediary between that which is normative and that which is factual and which provides for the process of establishing of norms, as well as, finding solutions. It is the "sense" in which the idea of law or legal norm and conditions of life have to be identical to be brought to mutual "conformity". In Kaufmann's opinion such a sense is nothing else but the "nature of things" which determines the normative qualification of the reality. Since establishment of this "sense" appears to be "non-dispositive" and controlled inter-subjectively (namely, other subjects will reach a similar result) so, in conformity with the convergent concept of truth, the "nature of things" must be assigned a certain ontological status. According to Kaufmann this is a real relation which occurs between being and obligation, between the conditions of life and normative quality. However, it should be underlined that from the point of view of the analyzed system the "nature of things" is a correlate of constructed sense, a result of a construction which is based on the principle of consistent understanding of senses ("non-normative" and "normative") and is not a reality which is transcendent against the arrangement of senses. In Kaufmann's theory, inference from analogy appears to be a process of reshaping the concepts (senses) governed by tendency to understand the contents appearing in relations between that which is factual and that which is normative in a consistent way. The analogical structure of language (concepts) and recognition of being as composed of an essence and existence is an indispensable requirement for the possibility of the realisation of law, based on specifically understood inference from analogy. It is necessary to assume a moment of existence without content which ensures unity of cognition. Existence emerges thus as a condition of the possibility of cognition. According to Kaufmann, the "nature of things" is the heart of inference through analogy and the basis for establishment of finding of law. Inference from the "state of things" to a norm or from a norm to the "state of things" always means inference through the "nature of things". The "nature of things" is the proper medium of objective legal sense sought in every cognition of law. In Kaufmann's view, the question whether the "nature of things" is ultima ratio of interpretation of law or is only a means of supplement gaps in law or whether it is one of the sources of law, is posed wrongly. The "nature of things" serves neither to supplement the gaps nor is it a source of law as, for example, a legal norm may be. It is a certain kind of "catalyst" necessary in every act of making law and solving a concrete case. Owing to "nature of things" it is possible to bring to a mutual conformity the idea of law and possible conditions of life or legal norms and concrete conditions of life. In Kaufmann's conception the "nature of things" is not yet the ultimate basis for understanding the "non-dispositiveness" of law. The relation between obligation and being is determined in the process of the realisation of law. Both the process itself and that which is transformed in this process are given. A question about the ontological bases of "material" contents undergoing "treatment" in the process of the realisation of law and about being which is the basis of regularity of the occurrence of the process arises. Only this will allow an explanation that the result of the process is not optional. Thus, a question about reality to which law refers and about the subject realising the law has to be formed. To this, Kaufmann gives the following answer: that which is missing is man but not "empirical man" but man as a "person". A "person" understood as a set of relations between man and other people and things. A "person" is the intermediary between those things which are different — norm and case are brought to conformity. A "person" is that which is given and permanent in the process of the realisation of law. It determines the content of law, is "subject" of law; this aspect is described by Kaufmann as the "what" of the process of realisation of law. A "person" consists of precisely just these relations which undergo "treatment" in the process. On the other hand, a "person" is "a place" in which the processes of realisation of law occur, it is the "how" of normative discourse, a "person" is that which determines the procedure of the process, being "outside" of it. This aspect of a "person" is connected with the formal moment of law. A "person" being, at the same time, the "how" and the "what" of the process of the realisation of law, is also, to put it differently, a structural unity of relation and that which constitutes this relation (unity of relatio and relata). According to this approach a "person" is neither an object nor a subject. It exists only "in between". It is not substance. Law is the relation between being and obligation. That which is obligatory is connected with that which is general. That which is general does not exist on its own, it is not completely real. Accordingly, a "person" as such is also not real. It is relational, dynamic and historical. A "person" is not a state but an event. In Kaufmann's opinion, such a concept of a "person" helps to avoid the difficulties connected with the fungibility of law in classical legal positivism. A "person" is that which is given, which is not at free disposal and secures the moment of "non-dispositiveness" of law. Kaufmann concludes: "The idea (»nature«) of law is either the idea of a personal man or is nothing". Theory points at the structure of realising law and explains the process of adoption of general legal norms for a concrete situation. The analysis has shown however, that in this theory a satisfactory answer to the question about the ultimate foundations of law is not given. It seems that in the analyzed theory the understanding of human being takes place through understanding of law. What is good for man as a "person", what is just, what a "person" deserves may be determined only against the existing system of law. A "per¬son" adopted as a basis of law is the reality postulated in the analysis of the process of the realisation of law. It is a condition of possibility of this process ( explaining, on one hand, its unity and, on the other hand, the non-dispositive moments stated in this process). A "person" in the discussed theory is entirely defined by the structure of law, it can be nothing more than that which is given in law, what law refers to, what law is about. Being, which is a "person", is constituted by relations between people and objects, the relations which are based on fundamental links between norms and conditions of life established in a process of bringing them to conformity. It has to be assumed that man as a "person" is a subject of law only as far as realising law "treats" given senses according to their current configuration. The system of law is a starting point and it describes in content what man is as a "person". Moreover, being a "person" is the condition for entering legal relations. Consistently, Kaufmann writes that "empirical man" is not the subject of law, man is not "out of nature" a "person". People become "persons" due to the fact that they acknowledge each other as "persons" — acknowledging, at the same time, law. This acknowledgement is a con¬dition of existence, of the possibility of the occurrence of process of realisation of law and of constituting legal relations which ultimately constitute a "person". Kaufmann assumes, that law tends towards a moral aim: it may and must create an external freedom, without which the internal freedom to fulfil moral obligations cannot develop. However, this postulate is not based on the necessary structure of human being. From the point of view of his system, it is nothing more than only a condition for the possibility of the occurrence of the process of the realisation of law — lack of freedom would destroy the "how" of this process. Thus, the postulate to protect the freedom of personal acts has to be interpreted, in accordance with the analyzed theory, as a postulate, the fulfilment of which aims ultimately at the accomplishment of the very same process of realisation of law itself and not the realisation of a given man. Kaufmann considers a "person" to be an element which unites the system of law as a whole. Law is a structure of relations, which are interdependent and inter-contingent. Consequently, a "person" which is to form the ontological basis of law has to be entity consisting of all relations. Being also the "how" of the process of realisation of law, if a "person" is to warrant its unity, it has to be a common source for all procedures. Hence, a single "person" would constitute a subject of law. Man appears to be only a moment of a certain entirety, realisation of which should be an aim of his actions. Law, creating a "person" as an object and subject of law becomes a primary entity. In the analyzed theory, the basis for determination of aims which law sets to man is not the allocation of man-subject to something which improves him but rather, such relation is only just constituted by law. A question appears, why should aims set in law also be the aims of "empirical man"? Why is this "empirical man" to be punished in the name of a "person" understood in such a way? If, however, it is assumed that what is man is determined by a system which is superior to him, then man has to be understood only as a part of a whole and there are no grounds to prohibit istrumental treatment of man and so the road to all aspects of totalitarianism might be opened. A problem of the application of created theory to the reality arises, the reality which the theory pretends to explain. Ultimately in his theory Kaufmann does not give any systemic grounds for a radical questioning of the validity of any legal norms. Every new norm becomes an equal part of system of norms. It is only its interpretation and application to given conditions of life that may be disputable, however, this refers to all norms without exception. Cohesive inter-pretation of norms and applications is necessary and sufficient for the acquisition of just law. New norms have to be interpreted in the light of others, correspondingly, the other norms require reinterpretation in the light of the new ones. Contradiction in interpretation of a norm does not form a basis for questioning norms but may serve only to question the manner of their interpretation (understanding). Therefore, no grounds exist to assume any legal norm as criminal or unjust, and in consequence, to question any consistently realised system based on formally, properly established norms, as "legal lawlessness". As law and a "person" do not exist without the process of realisation of law, the role of legal safety becomes crucial as the condition for the possibility of the occurrence of the process of realisation of law. Denying legal safety would be tantamount to negation of law in general (also of moral law) as negation of safety takes away, at the same time, the basis for occurrence of the process of realisation of law. Moreover, any lack of legal safety would also mean lack of a basis for the existence of man as a "person". Kaufmann's thesis, that civil disobedience is legalized only when it has a chance to lead to success, consistent with his concept of the foundations of law, seems to point directly to conclusions which deny the facts taken under consideration and doubtlessly Kaufmann's own intentions, since it would have to be assumed that accordingly there are no grounds to question a legal system in force based on violence which secures its operation. Force finally seems to determine which one of the mutually irreconcilable normative systems constitute law and which does not. A legitimate position is one which leads to success, it is the weaker system which is negated. If so, then basically violent imposition of law is not an act directed against the law in force but, to the contrary, realisation of law. In the context of the new system the former system of law may be talked about as unjust solely in the sense of being incapable of being consistently united with the new. However, at the base, ultimately, lies force which reaffirms differences and excludes from the process of realisation of law certain norms and their interpretations. Kaufmann was aiming at grounding of that which is "non-dispositive" in a certain given framework of interpretation. Nevertheless, he does not provide foundations for the understanding of phenomena, which he undertakes to explain at a point of departure. Instead of explaining them the theory negates the possibility of their existence. The reality postulated in regard to "non-dispositive" moments of the reconstructed process of acquiring law consist of a specifically understood "person", which appears in Kaufmann's conceptions as a condition of the possibility of the realisation of law. According to this approach understanding of a "person" may be only a function of law. To understand "legal lawlessness" and foundations of justice it is necessary to look for such theory of law in which understanding of man as a "person" and being is not a function of understanding of law (in which a "person" is not only a condition for possibility of reconstructed process of realisation of law; for possibility of cognition processes). It seems necessary to start from theory of being and a "person" based on broader experience than the one assumed by Kaufmann and reconstruct the ontological foundations of the process of realisation of law only in such perspective. Kaufmann points out that that to which law refers is ipsa res iusta a concrete relation of man to other people and things. This relation, in his theory, appears to be basically only just constituted by law (normative senses "applied" to conditions of life). Therefore, understanding the relation between a given man and other people and things which constitute the aim of his actions, that is understanding of good, is enacted against the background of constitution of senses; constitution which is a result of a process aiming towards consistent understanding of particular contents (of nor¬mative and non-normative senses). "Being" is secondary towards constructed senses it is only their correlate. The primary relation consists of relation of a man to law (system of norms), while the secondary relation is one of man to something which is the aim of his action (relation between man and good). Considering such approach it is difficult to envision a satisfying answer to the fundamental question: why does law put concrete man under any obligation to obey it? The source of this problem can be seen in reduction of the base for understanding good to content of obligation formulated in auto-reflection. Such reduction seems to be a consequence of Kaufmann's adoption of "convergent concept of truth" and in con¬sequence his recognition of indirect, essentialistic grasp of reality formulated in concepts as the basic and only foundation of theory of being and of law. In view of such an approach, analogy of law, concepts and being is the condition for the possibility of the process of transformation of senses which aims at consistent interpretation of all law. Existence is postulated with respect to the possibility of unity of experience and cognition. However, also a different approach to understanding of the problem of being and good is possible. In spontaneous cognition being is affirmed, first of all, not as a certain, non-contradictory, determined content, but as something existing. Together with a cer¬tain content (passed indirectly through notions) existence of being is co-given. The basis for unity of being is not formed by the consistence of content, as it is in the case of the theories departing from the analysis of cognition processes, but by an act of existence realising content (essence). Such an approach makes it also possible to go beyond the convergent concept of truth. It is worth mentioning that allocation of an agent to good is realised not only by the content of duty. A statement that something is good is primary with respect to determination of this good in content. The recognised good always bears some content, however, there are no reasons to base the concept of good exclusively on indirect, formulated in concepts cognition. As primary, can be adopted the relation of man to good and not of man to law. Determination in content appears to be only an articulation of aspectual cognition of being, as an object of action. In such a case the basis for relative unity of norm and conditions of life is not the "nature of things" understood as correlate of sense but it is relation to good based on internal constitution of man as potential, not self-sufficient being. It does not mean, that the moments of the process of realisation of law singled out by Kaufmann are not important to determination of what is just. He, quite rightly, points to significant role played by norms in the evaluation of concrete situations, in man's search for closer specification in content of good innate to him. The structure of process of determining law for a concrete situation, to a great degree corresponds to the processes of determining law which take place not only in the legal sciences. Kaufmann's analyses of the process of realisation of law show the complexity of the structure of these processes and point towards important moments allowing a better understanding of law and man. Nevertheless, these analyses cannot be a basis for construction of philosophical theory of law, theory which hopes to point out the ultimate, ontological foundations for understanding law. Kaufmann's results may become fully valid only in a more general perspective including broader experience at the point of departure. (shrink)

Hume is normally—and in my view, correctly—taken to be a legal conventionalist. However, the nature of Hume's conventionalism has not been well understood. Scholars have often interpreted David Hume as being largely indifferent to the specifics of the laws, so long as they accomplish their basic task of protecting people's property. I argue that this is not correct. Hume thinks certain systems of law will accomplish their purpose, of coordinating people's behaviour for the benefit of all, better than others. (...) He introduces two concepts, which I call generality and convenience, to designate those features of the law that allow it to best accomplish its purpose. Of the two, generality is the more important. The ability to implement a system of what Hume calls “general laws” is a feature common to those governments he considers “civilized” rather than “barbarous.” A set of more specific criteria may be extracted from Hume's texts, which laws must meet if they are to be considered general. Many of the criteria Hume identifies later become associated with theorists of the so-called “rule of law.” Hume's conventionalism can thus be read an important development beyond that of Hobbes, one that lays a foundation upon which later theorists such as A.V. Dicey are able to build. (shrink)

Modeling law search and retrieval as prediction problems has recently emerged as a predominant approach in law intelligence. Focusing on the law article retrieval task, we present a deep learning framework named LamBERTa, which is designed for civil-law codes, and specifically trained on the Italian civil code. To our knowledge, this is the first study proposing an advanced approach to law article prediction for the Italian legal system based on a BERT (Bidirectional Encoder Representations from Transformers) learning (...) framework, which has recently attracted increased attention among deep learning approaches, showing outstanding effectiveness in several natural language processing and learning tasks. We define LamBERTa models by fine-tuning an Italian pre-trained BERT on the Italian civil code or its portions, for law article retrieval as a classification task. One key aspect of our LamBERTa framework is that we conceived it to address an extreme classification scenario, which is characterized by a high number of classes, the few-shot learning problem, and the lack of test query benchmarks for Italian legal prediction tasks. To solve such issues, we define different methods for the unsupervised labeling of the law articles, which can in principle be applied to any law article code system. We provide insights into the explainability and interpretability of our LamBERTa models, and we present an extensive experimental analysis over query sets of different type, for single-label as well as multi-label evaluation tasks. Empirical evidence has shown the effectiveness of LamBERTa, and also its superiority against widely used deep-learning text classifiers and a few-shot learner conceived for an attribute-aware prediction task. (shrink)

On 21 June 2011 the Parliament of the Republic of Lithuania adopted extensive and important amendments of the Code of Civil Procedure of the Republic of Lithuania. Most of them came into force on 1 October 2011.One of the important tasks that have been mentioned for the preparation of amendments was to ensure the implementation of the Constitutional Court’s doctrine of matters of civil procedure. This article analyses one of the changed aspect - the system of defence (...) of public interest. The doctrine of concept of public interest was formed by the resolutions of the Lithuanian Constitutional Court adopted on 16 January and 21 September 2006. That concept was quite confusing and could be interpreted widely as well as narrowly (such as protection of special key values in the Constitution). This paper analyses the manner in which the doctrine of the Constitutional Court has been implemented in the law of civil procedure. In addition, the article analyzes the history of the amendments in the Code of Civil Procedure relating to the protection of public interest. The author presents a situation proposed to the Working Group that prepared the draft amendments to the Code of Civil Procedure, and compares the proposals with the effective version of the Code of Civil Procedure. The same article analyses the way that the effective version of the Code of Civil Procedure forces to the protection of the public interest doctrine of the Constitutional Court. The author concludes that the current system is conducive to abuses when the state can envisage the existence of public interest in every dispute and intervene in its investigation. In addition, the court is transformed into an entity liable to defend public interest, while it should be an independent and impartial entity to administer justice. Let us hope that in judicial practice the concept of public interest will be interpreted very narrowly and the Code of Civil Procedure provides the right to collect evidence or apply interim protection measures and etc. will be seen as a political mistake and generally will not be applied (except when it comes to non dispositive cases). (shrink)

Ex interiore ipso exeas. Preface. This book reconstructs the history of a still open dialectics between several ethoi, that is, shared codes of unwritten rules, moral traditions, or self-aware attempts at reforming such codes, and ethical theories discussing the nature and justification of such codes and doctrines. Its main claim is that this history neither amounts to a triumphal march of reason dispelling the mist of myth and bigotry nor to some other one-way process heading to some pre-established goal, but (...) instead to a chain of controversies where the partners’ will to win unintentionally yields a wealth of insights on human existence that has still something to teach us. -/- 1. The Hellenic moral tradition. -/- Two different traditions of morality in vi-v century Greece are described. The birth of philosophical questioning of traditional morality and temporal and spatial variation of custom is described within the context of the v century crisis, the demise of traditional aristocratic and tyrannical rule and the birth of democracy. Two conflicting answers to the challenge are reconstructed, namely conventionalist or immoralist theories formulated by the Sophists and the eudemonist and intellectualist Socratic theory. -/- 2. Plato and the Good. -/- Plato’s own reformulation of Socrates rejoinder to the Sophists is reconstructed. His psychological views, his classification of the four cardinal virtues and his political theory are described as parts of a unitary system, culminating in an extremely realist moral ontology identifying the idea of the good with the essence of the (moral and extra-moral) world itself. -/- 3. Aristotle and practical philosophy. -/- Aristotle’s invention of practical philosophy as a field separated from first philosophy is shown to be an implication of his break with Plato moral ultra-realism. Aristotle’s agenda in his moral works is arguably dependent on a polemical intention, namely dismantling Socratic intellectualism. The semi-inductive or virtuously circular method of practical philosophy is illustrated, starting with the received opinions of the better and wiser individuals and trying dialectically to sift what is left of mistake and inconsistency in such opinions, finally trying to correct mistakes and make the overall practical science more consistent. The relationship of individual ethics, or ‘monastics’, with the art and the science of the pater families, or ‘economics’, and the science of the ruler and citizen, or politics, is illustrated. The nature of virtues, or better, excellences of character, is discussed, highlighting the basic role of hexes, or ‘dispositions’. Prudence, or better, practical wisdom, is the focus of the chapter. Its relationship with boùleusis or deliberation is discussed, and its autonomous status vis-à-vis theoretical knowledge is stressed. -/- 4. Cynics and Stoics: ethics as therapy. -/- The chapter provides an overview of Hellenistic ethics, which almost amounts to Hellenistic schools of philosophy, in so far as ‘philosophy’ became in these centuries primarily the name for a way of life. The typical character of the Cynical movement is highlighted, that of a school of life, not a school aimed at providing any kind of intellectual training was to be provided. The various phases of Stoicism are described, and the shifting place that was given to ethics in the Stoic system of idea, culminating in the paradoxical view of ethics, its impossibility in principle notwithstanding, as the only truly significant and necessary part of philosophy. The peculiar character of the Epicurean school is described, a combination of the science of well-being aiming, more than pleasure understood as in the popular view, the reduction of useless suffering, of unnecessary needs, and at a balanced selection of pleasures of the best and most durable kind. -/- 5. Roman and Imperial Moralists. -/- The chapter is dedicated to the reconstruction of a particular kind of literature, whose specific features have long been under-stressed, namely the Roman and Imperial moral literature. Cicero is treated at some length, showing how his own synthesis of various Hellenistic trends is as a truly philosophical enterprise, deserving serious consideration after one or two centuries when he was confined to the role of literate. Epictetus is given pride of place, stressing the novelty of his approach to ethics as cognitive therapy, in this case just following an already existing new wave of interest after nineteenth-century oblivion justified by alleged lack of authentic ‘philosophical’ character. -/- 6. The Hebrew moral tradition. -/- A reconstruction of basic ideas from a few books of the Hebrew Bible is provided, starting with the Prophetic tradition and the focus on God’s mercy as the source of motivation and standard for human behaviour. Then a comparative analysis is undertaken of a parallel tradition, namely the three codifications of the Torah (Law or, better, Instruction), highlighting how a core of moral ideas may be recognized as a basis and preamble of codification of civil law, cultural practice, and regulation of ritual purity. The importance of Levitic is stressed as the turning point when the stress on mercy, typical of the Prophetic tradition, starts being combined with legal tradition yielding the change in the sensibility of the Second Temple time. -/- 7. Second Temple Judaism. -/- This chapter describes the Long March leading from the post-exile Zadokite restoration to the first-century aevi vulgaris. The first topic reconstructed is the Zadokite theology of the double retribution. The second is the alternative Enochic tradition consistently rejecting the central role of the Temple, the Priesthood and worship as atonement for sins and offering as an alternative God’s unlimited mercy and preaching mercy, not sacrifice as the way of behaving requested by God. Wisdom literature, the third subject discusses, is a kind of third way, on the one hand increasingly critical towards the double retribution and ruling theology’s optimism facing the world as it is and on the other mocking at the Enochic current as a band of dreamers and visionaries. The third way consists in disenchantment facing the word as it is combined with a refusal of vain and childish hope of prizes for the righteous, suggesting instead the leading idea of right deeds for righteousness’s sake. Rabbi Hillel, Rabbi Yeshua and Philo of Alexandria are described as the three leading figures at the culminating point of such process of emergence of a new sensibility, gradually including mercy as an essential part of justice and establishing the starting point of both the Rabbinic and the Christian tradition. This starting point consists precisely in the precept of one’s neighbour’s love or of the golden rule, whose meaning is, arguably, more consistent than a long-lasting Christian tradition deriving from John and Augustine made us believe. And Christian morality, vis-à-vis allegedly legalist ‘Ancient Testament’ teachings, is less of a novelty than most early Christian writers announced. -/- 8. Talmudic moral doctrines and proto-Christian paraenesis. -/- The first three sections examine the moral doctrines of so-called 'ethical Treaties' from the Talmud, a group of treaties, among which the best known is Pirke Avot, that were left out of the six "orders" of the canon as they did not fit in any of the six groups of issues ritual or legal on which the division was based. According to Maimonides, their peculiar theme is provided by the Deot, 'opinions', i.e., mental dispositions, that is, the translation of the Greek term hexes and Arab akhlak (in turn providing in this language the name for ethics as such). The three topics I reconstruct are: i) the notion of Torah: The Torah is understood as the world order itself, or as the ‘Wisdom’ that existed even before creation and was "the tool by which the world was built"; however, the Torah is an earthly and human entity, as it was "received" by humans, and from that very moment belongs to them; ii) the relationship between love of God and love of neighbour; the treaties require us to study and practice the Torah ‘for its own sake’, that is, require us to act out of love, not out of fear or hope of reward; iii) the idea of sanctification of daily life: having disappeared with the destruction of the Temple the possibility of any conflict between liturgical service and everyday life, the latter is assumed to be in itself divine service: to give food to the poor has the same value as sacrifices in the Temple, and as an implication, the insistence become recurrent on the goodness of created things in themselves along with a polemic against ascetic currents. The conclusions drawn are: i) the moral teachings of the Talmud and those of Yeshua are, rather than similar, virtually identical; one may safely say that the precept of love and the golden rule are central ones for all Talmudic rabbis, that mercy plays an indispensable role alongside with justice, and the latter is not a different thing from one’s neighbour’s love; ii) a peculiarity of Talmud rabbis facing Yeshua is the idea of study as worship, and knowledge as a source of justice; but this is an idea of Judaism after the Temple's destruction that cannot be attributed to the Pharisees of Yeshua’s time; iii) the relation of study and practice in the Talmud parallels that between faith and deeds in Paul's epistles, that is, respectively faith or learning are a necessary and sufficient condition to be recognized as righteous, but deeds are the inevitable effect of either faith or learning. The last two sections examine first the various Christian currents and then Gnostic para-Christian or non-Christian currents as well as Manicheism. The sayings ascribed to Yeshua are examined first, yielding the conclusion that a close equivalent may be found for every saying in Talmudic literature and yet the whole is ascribed to one rabbi, with rather consistent stress on God’s mercy and unconditional forgiving as the mark of true imitation of God. Thus, Yeshua’s teaching is pure, purest Judaism. The last section describes briefly the galaxy of Gnostic currents and Manicheism, trying to sketch the profile of moral teachings resulting from an encounter of Asian spiritual traditions, Hellenistic lore and sparks of teachings from apocalyptic Jewish currents. -/- 9. Christianity as “philosophy”. -/- The chapter reconstructs the stormy story of several encounters between Christian currents and Hellenistic philosophical schools. The first one was with late Cynicism. Recent, rather controversial, literature discovered the jargon and several rhetorical topics from the Stoic and Cynical popular philosophy in a few books from the New Testament itself. This, far from proving that Rabbi Yeshua himself had been influenced by cynical preachers, is a proof of the necessity to translate the original Christian message in a Greek lexicon deeply impregnated with cynic terminology. The second was with Platonism, yielding the mild and temperate moral teaching of Clemens of Alexandria, teaching the sanctity of nature and the human body, the joy of moderate fruition of ‘natural’ kinds of pleasures, and the beauty of the marital life – in short, the opposite of the standard picture of Medieval Christianity. Ambrose of Milan brings about a different kind of synthesis, namely with Middle Platonism, where Stoic themes prevail. The most shocking case is Augustine, where early Manichean education is overcome in a former phase by a synthesis of Plotinian Neo-Platonism and Christian preaching, yielding a sustained polemic with the Manicheans and rather optimistic views on life and Creation, the body and sexuality, and Hebrew-Judaic tradition not far from Clemens of Alexandria. In a later phase, occasioned by controversy on the opposite front, with such Christian currents as the Pelagians and Donatists, Augustine comes back to heavily anti-Judaic and world-denying ascetic attitudes where is earlier Manichean upbringing seems to emerge again. The tragedy of medieval Christianity will be the later Augustine’s overwhelming influence. A final section is dedicated to the monastic tradition where a curious mixture of world-denying asceticism with an astonishingly penetrating ‘science’ of introspection emerges. -/- 10. Ethics in the Arabic-Islamic Philosophy. -/- The Qurān and the qadit, that is, collections of sayings ascribed to the prophet Muhammad contain a wealth of precepts and catalogues of virtues mirroring moral contents from the Jewish and the Christian traditions, among them the basic notion of imitation of the Deity, where mercy is assumed to be its basic trait. An important tradition within Islam, namely Sufism, stressed to the utmost degree the role of mercy, turning Islam into a mystic doctrine centred on the retreat from the world, abandonment to God’s will, and a peaceful and fraternal attitude to our fellow-beings. A secular literary tradition originating in the Sassanid Empire, the literature of advice to the Prince, had for a time a widespread influence in the newly constituted Arabic-Islamic commonwealth. In a later phase, the legacy of Hellenic philosophy made its way into the intellectual elite of the Islamic world. The first important legacy was Platonic, and the Republic became the main text for Islamic Platonism. In a second phase also Aristotelian and Stoic influence were assimilated. Miskawayh’s treatise was the masterwork at the time Arabic philosophy reached its Zenith. It is a treatment of the soul’s diseases and their remedies, combining the Aristotelian doctrine of the golden mean with the Stoic doctrine of the passions and elements of Galenic medicine. Towards the eleventh-twelve centuries, a war raged among theologians and philosophers, finally won by the former with the disappearance of philosophy as such. The newly established mainstream, yet, was no kind of intolerant fanaticism. It drew from the work of mystic theologian Al-Ghazālī, the best heir of Sufism, teaching a tolerant and peaceful attitude to our fellow-beings and a passive attitude to destiny as an expression of the Divine will. -/- 11. Ethics in the Jewish philosophy. -/- The encounter between the Talmudic tradition and Hellenic philosophy had taken place for the first time in Alexandria at the time of Philo but the two traditions had parted way again. In fact, the kind of Platonic Judaism founded by Philo survived only within Christianity, in the fourth Gospel and then in writings by Clemens of Alexandria. The Talmudic literature had absorbed too a few traits from the Hellenic Philosophy, namely an idea of ethics as care of the self and a role for the education of character as propaedeutic to theoretical knowledge. In the Arabic-Islamic world, a second round started when Jewish authors writing in Arabic undertook the task to prove the full compatibility of the tradition deriving from Tora and Platonic philosophy. The culmination of this attempt is provided by Moshe ben Maimon who tried to use Aristotelian ethics as a language into which the teaching from the Pirke Avot could be translated. -/- 12. The practical philosophy revival in Latin Europe. -/- A reconstruction is carried out of a fresh start of philosophical ethics in Latin Europe at the turn of the Millennium rescuing a Platonic and Augustinian legacy, with Anselm and Peter Abelard. In this phase remarkable innovations are introduced, including Abelard’s claim of the obliging character of erring consciousness. In a second phase, the rediscovery of Nicomachean Ethics thanks to Latin translation of Arabic versions, gives birth to a new wave of ethical studies, recovering the very idea of Aristotelian practical philosophy, with the potential implication of a full legitimization of natural morality, i.e. ethics without Revelation. -/- 13. Scholastic practical philosophy: Thomas Aquinas. -/- Aquinas’s ethics is theological ethics out of which it would be vain to try to extract self-contained philosophical ethics. His treatment of topics in philosophical ethics, yet, does not boil down to the repetition of Aristotelian arguments but is rather a creative reshaping of such arguments. For example, he introduces also in the practical philosophy a first principle parallel to the principle of non-contradiction; and he also carries out a synthesis of Aristotelianism, Stoicism, neo-Platonism. Even though it is essentially moral theology, Aquinas’s doctrine - unlike Augustine – grants full citizenship to "natural" morality, firstly by rejecting the claim that the corruption of human nature due to the original sin is so radical as to leave pure nature incapable of moral goodness. The doctrine is presented in a more sophisticated formulation in a few of the Quaestiones such as De Malo and De Veritate, in the Summa contra Gentes and in the commentaries to Aristotle than in the famous Summa Theologica, but the latter work includes the only or the largest exposition of some decisive part of the theory. Thus, the Summa Theologica should be read for what it is more than criticized for not being what it was not meant to be. It was not meant to be the brilliant synthesis of all that Reason he had been able to produce with what Revelation had added about which the Neo-Thomists used to dream, but rather a manual for the training of preachers and confessors, where theoretical claims are not too ambitious, and a few serious tensions are left. Besides a jump between the Prima Secundae and the Secunda Secundae, being the former an essay in virtue theory and the latter a handbook for confessors, the most serious tension is perhaps the one between the ethics of right reason presented in most of Prima Secundae and the eudemonistic ethics developed in quaestiones 1-5 of the same part; the alternative ethical theory which also may be found in Augustine, the Stoic view of a cosmic reason eventually coincident with the moral law, was believed by Anselm (followed by John Duns Scotus and William of Ockham) to be incompatible with eudemonism. It is questionable whether Thomas was able to solve the tension proving that it is just an apparent tension, in so far as the right reason and bliss derived from the knowledge of God tend to coincide, but this is just a conjecture. Thomas’s ethics is a virtue ethics, not a law-based one, and moral judgment focuses on the virtues, particularly charity, not on the commandments and even less on absolute prohibitions; Thomas, however, would not have considered a drastic alternative between law and the virtues such as the one which has been advanced in late twentieth-century philosophy to be justified. Nonetheless, when it discusses ‘special’ virtues, it ceases to be an ethics of virtue and becomes a disappointing and often contradictory discussion of legal and illegal acts. Such a discussion takes most of the time ‘reasonable’ middle positions on controversial issues but not the alternative approach that Aristotelianism would have made possible; even when some occasional Aristotelian claim shows up, such as money’s barrenness as a reason against usury, this seems to be made by an author who apparently ignores the Aristotelian Thomas of the Prima Secundae. It is an ethic of human autonomy which recognizes the binding character of the individual conscience and, potentially, even a duty to disobey unjust laws. It is true that what Thomas writes in his discussion of the death penalty and persecution of heretics is simply disgusting, and yet we should blame Thomas the man, not the Thomist ethical theory. Finally, Thomas’s ethics is no way an ethical ‘absolutism’, as both the traditionalist Catholic theologians and secularists tend to believe, but rather an ethic of prudential judgment on the individual case. Exceptions to this approach – or better the result of logical fallacies – are provided by the thesis of the absolute character of negative precepts and of the existence of so-called intrinsically evil acts, a thesis that would simply cease to make sense in the light of Thomas’s own distinction between human act and natural act, carrying consequences that Thomas did not live long enough to draw. -/- 14. Scholastic practical philosophy: John Duns Scotus and William of Ockham. A reconstruction is carried out of the ethical doctrines by both most authoritative Franciscan doctors. Their continuity with Aquinas is vindicated against prejudice carried by centuries of polemics within the Catholic Church and tendentious disparaging of both as forerunners of execrable Reformation. Besides aspects of continuity, also the important novelties are illustrated, first John’s abandonment of Aquinas’s and Augustine’s eudemonism, asserting righteousness for righteousness’s sake, and then William’s explicit defence of the philosopher’s virtues, that is, natural morality, and his solution to the dilemma of God’s omnipotence and the universal validity of natural law extending to God himself. -/- 15. Aristotelianism interpreted by the Magistri Artium. -/- A reconstruction of the until recently forgotten ethical doctrines by the Parisian Magistri Artium, falsely depicted as ‘Averroists’ and either deprecated as heretics or mistaken for predecessors of modern secularism. In fact, they illustrate a view of ‘natural’ virtue as may be understood by human reason without the assistance by Revelation. -/- Etiamsi daremus Deum non esse. Intermediate considerations. Three considerations may be suggested by the story told in the book. The first one is that intellectual histories have been mounted in the past with the same state of mind as one may mount a war chariot. Such constructions are not very helpful as tools for understanding the past. Wars waged in the past have left the field obstructed by ruins not easy to remove even by those historians who have animated by an impartial academic motivation. They have been influenced too by consequences of past emphasis on some authors and damnatio capitis suffered by others, by stratifications left on sources by secondary literature and translations, by allotment of originally close sources to different literary genres, by the monopolization of religious texts by churches with full cooperation by secular scholars who still fear contamination. The second one is that aware or unaware ethnocentrism has carried various calamities to our comprehension of the past. Their last vestiges have surfaced again in the semi-scholarly discussion on the idea of Europe occasioned by the debate on a project of a European Constitution. Mention of Europe’s Christian roots has been the clumsiest move. Proclamations of such roots were so obvious in what they affirmed as they were totally off-path concerning what they omitted, namely that he modern European moral tradition included legacies from Middle-Eastern wisdom, Hellenic philosophy, Roman Imperial legal literature, and, besides, a Jewish legacy in turn incorporating other more ancient Middle-Eastern legacies and which has been partly conveyed by Christianity. And the Islamic-Arabic philosophy too, in so far it made the Nicomachean Ethics available to Latin Christian scholars, is one more of Europe’s roots. The third is that religious traditionalists and secularist fundamentalists have gone hand in hand for a couple of centuries in either extolling or deprecating the allegedly Modern idea of Ethics without God, first formulated by Hugo Grotius with the claim that natural law would still be valid ‘etiamsi daremus – quod sine summo scelere dari potest – Deum non esse’. The facts are, firstly, that this is not an irreligious claim and Grotius was just a pious and meek Christian and, secondly, that it is not a ‘modern’ claim but rather one more formulation of the claim that there is a natural morality, independent of divine revelation, a claim shared by Moshe ben Maimon, Aquinas and William of Ockham. -/- . (shrink)

Sophists’ apologia. -/- Sophists were the first paid teachers ever. These ancient Greek enlighteners taught wisdom. Protagoras, Antiphon, Prodicus, Hippias, Lykophron are most famous ones. Sophists views and concerns made a unified encyclopedic system aimed at teaching common wisdom, virtue, management and public speaking. Of the contemporary “enlighters”, Deil Carnegy’s educational work seems to be the most similar to sophism. Sophists were the first intellectuals – their trade was to sell knowledge. They introduced a new type of teacher-student (...) relationship – the mutually beneficial communication on equal terms. They taught pupils how to think independently and how to persuade others, which was inseparably connected with the rise of democracy in the most advanced Greek polices. Sophists were the first to proclaim that all people are naturally equal. They put forward the idea of natural rights and social contract, working out the fundamentals of the present-day law. In addition, they developed the basics of philology, psychology, logic, and gave a scientific explanation to the origins of religions. They embodied definite positive ideals of their epoch. Sophistry flourished in the second half of the Vth through he first third of the IVth centuries B. C. The period coincides with the heyday of the entire Greek history – the so called Greek Miracle epoch. Sophists expressed some present-day concepts of Ancient Greek ideology and mentality, characteristic of its Golden Age times. The Ancient Athens of the times of Periclus were similar to the Florence of Renaissance as to the type of social structure. That is why (?) the art of eloquence (public speaking) was highly respected in Florence. The two cities had a lot of features of the present-day capitalist society, which was due to their role as the main centres of industry of their “worlds-economies”. During the subsequent Hellenic period, the Old Order was restored, based on the feudal rent recipients’ rule. The degradation of society resulted in the decline of sophistry. Sophistry represents the highest point in the evolution of Greek philosophy. It is also the most prominent school as to the novelty of its ideas. That was owing to the common propensity for innovation typical of Periclus’ Golden Age, which in its turn resulted from the establishment of the individualistic and rationalistic thinking similar to present-day mentality. Among other aspects, close attention was paid to ethnic issues; some humanistic ideas such as Master and Servant ethics and Enlightment as the primary condition of man’s freedom, received scientific grounding. The genre of philosophical dialogue was developed, as well as the rationalistic scientific gnoceology, aimed at consistently opposing any religion. Dialectics, the most outstanding achievement of the Antiquity, was also worked out by the sophists. Zeno of Helleas was one of the sophists. Democrites’ ideas were, too, quite close to dialectics. Socrates’ contemporaries regarded him ironically, as shown, for example, in the Aristophanes’ comedy “Clouds”. Nevertheless, this scholar can still be referred to as a sophist, although of somewhat weird personality. Socrates’ popularity, which came later, should be attributed to the fact that he was the first philosopher ever to have been sentenced and executed by law, rather than to any valuable scientific contributions. Sophistry as such, rather than Socrates, marks the line between pre-Socratic and post- Socratic schools. Plato, with the exception of his latest works, is considered to belong to the same philosophical school. Specifically, there are valid reasons to believe that he was paid fees by his disciples. In Plato’s Dialogues, all points of view will be proven and then disproved, so that an integral philosophical system is hard to observe. Plato’s “Idealism” is but one of the many possible theories. His ideal philosophy is a high-minded argument of wise men. As late as towards the end of his life, Plato betrayed the ideals of sophistry, turning into the world’s first proponent of totalitarianism. Sophistry is Greek classical literature. Later on, philosophy, as well as the entire Greek civilization, started to fall into decline. Over 500 subsequent years, Hellenistic-Roman scholars never came up with anything novel. The entire process of antique philosophical evolution can be subdivided into the following six stages: Phoenician (IX–VIIth centuries B. C.), archaic (VIth – the first half of IVth century B. C., classic (the epoch of sophistry: the second half of the Vth through the first decades of the IIIrd centuries B. C.), late antique (middle of the IIIrd – first decades of the VI th centuries B.C.) The fact that early in the VIth century B. C. sophistry was rejected in Athens, has a lot to do with the consequences of their defeat in Peloponnesian war, a social catastrophe. Ever since, the prevalent part of the criticism of sophistry is a criticism of sophists’ immoral ways of life and personalities, rather than the essentials of their philosophy. For instance, Aristotle’s criticism primarily concerns their pragmatism and tendency to make a profit out of teaching. However, Aristotle himself taught his disciples along similar lines, showing them how to “be able to prove both opposites”. It was Aristotle who summed up sophists’ century-long elaborations. The traditional modern interpretation of sophists as shown in Plato’s dialogues appears to be groundless. The truth of the matter is that Plato regards sophists as more serious philosophers than Socrates was. It becomes especially clear in the dialogue titled “Protagoras”, which shows the latter as gaining an undoubted victory over Socrates. Generally speaking, Plato’s works never regard sophists as weak or worthless opponents. A common opinion as to the essence of sophists’, in particular, Protagoras’s philosophy, has hitherto not been worked out. Many researchers renounce the very existence of any specific philosophical position in sophistry. The term “relativism” itself now has a bad name. However, it should be borne in mind that Protagoras doctrine emerged as a result of an attempt to get out of the ontological dead-end to which the entire Greek natural philosophy had come. To this purpose, he employed Anaxagoras’s idea about everything comprising everything, whereupon he built his physical-ontological theory, and Zeno of Helleas’s concept that all objects are such and different at the same time in the same respect. According to Protagoras’s philosophy, every object does not only seem, but is different from every other object, including human beings. Therefore, every person is his or her own measure of all other entities. The objective reality is the Ego’s relations with the outer world. Every object’s essence is defined through its interaction with ourselves. Nothing remains stagnant – every existence already contains non-existence, and vice-versa. However, the relativity of being is not to be regarded as absolute. That means, that relatively stable and therefore relatively cognizable entities do exist, among them the words we say. Doubt is not considered absolute by relativists either, which differentiates them from skeptics and agnostics. They dare to believe. Uncertainty is Godly – here, Protagoras becomes very close to the concept of apathetic theology. Gorgius shared Protagoras’s views and tried to prove them applying the same method as Zeno applied when upholding Parmenidis’s philosophy. He argued that if one accepts the opposite point of view and agrees that nothing can exist and not exist at the same time, one is bound to come to an the absurd conclusion that nothing is cognizable and nothing exists. To prove that there is a universal contradiction within the Existence itself, Protagoras and his followers in their turn put forward a number of special logical arguments, called rules of contraries, or sophisms. The most well-known of them is the Euathle’s sophism, which proves that an object can be such and different at the same time in the same respect. Generally speaking, all relationships of any entity are extraneous. The idea that all entities, including concepts, exist and do not exist at the same time, was also accepted by Plato. It should be stressed, that Plato’s philosophy as a whole is relativists’ greatest achievement. In his dispute against relativism, Aristotle put forward the main concepts of his ontology: the existence falls into the existence in possibility and the existence in reality, or substance and accidence – the ever changing “sublunary” world and the stable world of divine heavenly bodies. This division made his system self-contradictory to the point of absurd. Aristotle quite realized, that the direct disproof of relativism is hardly possible, which fact makes his criticism a mere tautology. It is very indicative in this respect that materialists, idealists and even skeptical agnostics applied the same arguments do disprove relativism. That demonstrates that the inner contradiction between any forms of “absolutism” and relativism is the most fundamental philosophical problem. Relativist ideas were repeatedly renewed throughout history, provided the social conditions were favourable. In variations, the concepts were advanced by Tzuan Tsi and ancient Chinese sophists, apostle Paul, Nicolas of Cusa, Galileo, Rene Descartes, G. Berkley, D. Hume, Ch. S. Pierce, E. Mach, A. Bogdanov, F. de Saussure, N. Bore, P. Feuerabend, U. Quain and others. However, no consistent relativist ontological system was developed after Protagoras. Meanwhile, a valid relativist theory could provide a clue to a fuller and more adequate general physical concept of the world, and to a deeper understanding of quantum mechanics. -/- Relativism as an ontological system of beliefs. -/- The relativist principle of relativity of all that exists is fundamental for the entire system of philosophy. Absolutely everything exists, but, at the same time, no existence is absolute. Anything is possible, but those entities only exist for us with which we interact this way or another, i. e., reality is interaction, “I interact – hence, I exist”. However, an overly close relationship between entities leads to non-existence – in other words, there is a certain existential optimum. For all of us, information, or perceptible heterogeneities, is real. Each of us is the center of a definite system of interactions with the world. If God is an endless Possibility, then the World is but the man’s dialogue with God. However, the ties that bind us with the world are of some definite kind, which predetermines our reality. The principle of relativity constrains itself, as any relativity is relative. On the one hand, that calls forth the Evil – caused by our own weakness. On the other hand, it makes our world relatively stable and cognizable. Generally speaking, the world is what we are. Everybody has an own Universe, but since people are fairly similar, our universes can be regarded as one Universe with common laws and regulations. It is possible for us to change the degree of objects’ existence in relation to ourselves and one another. It is equally important, though, to remain ourselves (keep following our “warrior’s path”). Since everything exists and no existence is absolute, the process of cognition should involve a criticism of everything but never a complete rebuttal of anything. The criterion of verity for any theory then is in its capacity to build itself upon a bigger number of diverse statements than in any other theory. Theoretically, all philosophies should ideally be complementary. The question of what in fact happened is meaningless unless we specify the “we”, the “where” and the “when”. The past can only exist as part of the present. When we change, our past undergoes corresponding qualitative objective changes, all of which are irreversible. The contemporary physics regards all objects of the Universe as existing for one another, which results in absurd conclusions. In fact, only what we interact with, exists. The so called “speed of light in vacuum” c is the maximum speed of direct interaction and direct exchange of signals. Specifically, at the oncoming speed c with a significant blue parallax the gamma-quantum is unable to interact with the matter. When this speed is reached, the gravitational mass of objects in relation to one another becomes equal to zero (imaginary), whereas their inertial mass equals infinity. Further acceleration will bring us into an entirely different Universe. That means that the Universe is an open system, which fact destroys all present-day cosmological models. Anything is possible in this world. Our reality is magic. Every bit of space contains a potentially limitless number of bits of other, however virtual, universes, as well as an infinite number of particles, which are still virtual for us (as postulated by quantum mechanics). In other words, there exists an infinity of different realities. With all the above in mind, the different levels of entities’ existence, in particular, of Life and Reason, should be taken into consideration. For example, to which extent a live system exists in relation to the inanimate forms of being is very indefinite, as what life is has to be determined by living creatures. An even greater compass of levels of existence can be brought about through interaction – that is the core idea of Godel’s theorem. As a result, the range of forms of existence tends towards infinity – the evolution of matter through super-intelligence will bring us up to God’s heights. A more generalized mathematical model of the physical world, including a universal operator of the co-existence of objects, can be developed based on the above considerations. The bonds between objects become weaker owing to 1) a high speed, 2) acceleration, 3) rotation, 4) strong gravity, 5) strong fields of other kinds, 6) the difference of levels of existence , 7) phase shifts. Yet, there always is an existential optimum. Such mathematical model is to operate certain non-transitive algebras. Relativist ontology assumes that the notion of “temperature” is relative, thus making it possible to ignore the Second Law of Thermodynamics. In its turn, that will allow for phase shifts. A perpetual motion machine of the second type will become a reality. Rotation could presumably be used to increase inertial and decrease gravitational mass, slowing down the time. An experimental research could shed light on the mentioned effects. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Hellenistic and Early Modern PhilosophyChristopher S. CelenzaJon Miller and Brad Inwood, editors. Hellenistic and Early Modern Philosophy. New York: Cambridge University Press, 2003. Pp. xii + 330. Cloth, $60.00.There are at least two ways of writing the history of philosophy: the first and most common among those self-identified as "philosophers" treats philosophers of the past as if they were in live dialogue with the present. Only the (...) text is dissected, studied, and analyzed as the interpreter attempts to reconstruct, examine, and occasionally challenge the arguments under consideration. Practitioners of this first way assume that systematic and seemingly internally coherent styles of thought are most worthy of the name "philosophy." These thinkers believe that the term "philosophy," as Richard Rorty pointed out long ago, has an "honorific" sense: philosophy as such stands above other forms of thought, it is regulative in scope, and it serves as something that examines the conclusions of other, necessarily less rigorous fields. The second way is more explicitly contextualist, seeking to understand what a past thinker may have meant in his own time, what outside factors may have shaped his arguments, and how his thought may be part of broader historical currents that are none the less worthy of being remembered and studied now. Practitioners of this way are more likely to believe that ambiguities or seeming deficiencies of clarity that we find in the work of a past thinker are unlikely to be resolved by hypothetical, propositional reconstruction; rather the ambiguities are apparent to us because we are differently situated, so that the study of history is a more powerful tool in helping us satisfactorily access the work of a past thinker than rationalistic reconstruction. (Full disclosure: I am an advocate of the second way.) This volume presents studies that fall into both of the two camps, as Jerome Schneewind points out in his cogent introduction.The volume has a manifest unity: almost all of the articles are concerned in some way with different Hellenistic schools of thought and the way early modern thinkers used, re-imagined, and interpreted them. The studies are often meticulous and all are stimulating. Anthony Long offers a wonderfully synthetic presentation of ancient Stoicism as a coherent system, after which he examines the way Spinoza, Justus Lipsius, and the eighteenth-century Anglican bishop Joseph Butler measure up; unsurprisingly, they don't measure up that well. Margaret Osler seeks to illuminate the way Gassendi appropriated certain aspects of Epicureanism. Philip Mitsis argues that modern scholarship on Locke has not taken Locke's interest in Cicero's De officiis as a tool for teaching morality seriously. Donald Rutherford studies Leibniz's critique of Stoicism, which "centers," he writes, on their "failure to offer an adequate explanation of the nature of moral progress and of the dependence of human happiness on the hope for such progress" (62-63). Catherine Wilson presents a study of the corpuscular aspect of Epicurean natural philosophy among Leibniz and his contemporaries. Jon Miller eloquently and thoughtfully discusses the way Grotius and Spinoza worked with the natural law theory of the Stoics. Among a number of excellent articles, perhaps the most interesting is Stephen Menn's. Menn makes a compelling case that Descartes's intellectual autobiography in the Discourses may be seen as part of a tradition. In it, the writer presents himself as reaching a moment of dissatisfaction with the intellectual customs with which he has come into contact and as needing to strike off into new directions, unencumbered by the vestiges of those customs. While others, most notably Dan Garber, have shown that, as Menn puts it, "none of Descartes's contemporaries seem to have thought in 1637 that they were witnessing a revolution" (142), Menn's study is striking because it shows the depth of the tradition within which Descartes was working. Next, Gail Fine finds that the Cyrenaics, as presented by Sextus Empiricus, seem to have [End Page 207] endorsed "the view that there are truths, beliefs, and knowledge about the subjective" (214). Steven Nadler seeks to show that there is no mysticism in Spinoza's thought, even though it was not uncommon in Spinoza's own day to... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Belief and Context Determinacy in Interpreting FictionChristine Richards (bio)1Context Determinacy and the Interpretation of FictionThe Pragmatics of ReadingThe basic pragmatic structure of the reading of fiction has been described as a communicative context which has a speaker who performs the speech acts represented by the text and a hearer (addressee) to whom the speech acts are directed [Adams 12]. This model is based on the assumption that the reader (...) and the writer share not only a common language but a common context, which clearly presents problems for readers of fiction, where generic conventions as well as other cultural conventions of writing, such as satire and irony, or the separation of writers and readers by time, have to be contended with. The code model, which assumes that the writer and the reader share a common context, can be represented as shown in figure 1. Click for larger view View full resolutionFigure 1.W = writer, S = speaker, H = hearer, R = reader.However, it has also been argued [Eco, Role of the Reader 40; Eco, Semiotics 69; Richards 262] that no theory of a text is possible without a theory of contexts, since texts are processed and given meaning by a synthesis of propositions in them with those which originate in readers’ supplied contexts; and since the contexts of readers consist, first and foremost, of their background knowledge, beliefs, and culture, which are fundamentally interrelated, interpretation is inevitably determined by extralinguistic as well as linguistic factors. The context model might be represented as shown in figure 2. Click for larger view View full resolutionFigure 2.W = writer, N = narrator, R = reader.[End Page 81]The Extralinguistic ContextA good example of the role played by extralinguistic contexts in the interpretation of a text is to be found in the multiple interpretations of the sentence “The red sun was pasted in the sky like a wafer,” from Stephen Crane’s The Red Badge of Courage [64]. Susan Horton, in her discussion of accounts of this sentence [10–14], shows both how R. W. Stallman interprets Crane’s antiwar fiction as a Christian allegory where the word “wafer” functions as a symbol of the Eucharist [130], and how Marston La France rejects Stallman’s interpretation on the basis that Crane is not a Christian, and certainly not a Catholic [99–100]. La France’s rejection of Stallman’s Christian context for atheism is rooted in his interpretation of the sun as a repeated image in the co-text, which he believes signifies nature’s indifference to death, war and heroism. Here the lexemes “pasted” and “wafer” become images of a seal at the end of a legal document, implying the finality of death in war. Milne Holton interprets the image of the sun as a characteristic of the symbolic imagination of the character Henry Fleming rather than of the writer (Crane) [90–91].Horton documents but does not theorize the determining features of these contexts, but this problem can be tackled by applying Marcello Pagnini’s theory of “the introjection of the referent” [9] to explain how the contextual semes of readers, determined by different cultural systems, are introjected into texts. Following Jurij M. Lotman’s typology of cultural systems [Lotman and Uspenskij], Pagnini cites as relevant systems ethics, ideology, history, philosophy, myth, the law, anthropology, politics, ethnicity, literature, aesthetics, psychology, rhetoric and symbolism [34], which represent fundamentally interrelated complexes of systems that make up societies. If Pagnini’s model is taken with that of Richards [267], which conceives of interpretation as a synthesis of propositional inferences in texts with those drawn from readers’ contexts, these two models provide a methodological basis for explaining how the contexts of Stallman’s and La France’s conflicting interpretations derive from philosophically opposed belief systems within culture—Christianity and atheism. These models also help to explain Holton’s interpretation as one located within a different philosophical context, that of the convention of character analysis in fiction, which during the last few decades has developed into the more theoretically sophisticated field of narratology. It should be stressed, however, that interpretations themselves always take place within historical and interactive frameworks, which are influenced... (shrink)

Based on the communication ethics of Ptahhotep and other inclusivist communication value systems, including several additional non-Western (Confucian, Buddhist, Aborigine, Cree, San, Māori, Ubuntu, and Islamic) as well as Western ones (Stoic, Christian, Kantian, socialist, liberal, and journalistic), we propose seven principles as common ground for the future regulation of media communication on a global scale. All seven are formulated in a manner similar to Ptahhotep’s, providing a flexible range of norms allowing, for example, hate speech to be (...) dealt with by criminalization, or in civil law, or by means of ethics rules and self-regulation, depending on the severity of the involved threats to humanity, to human beings, or to other core values. We reject an often-paralyzing comparative intercultural juxtaposition of individualism versus collectivism, instead suggesting an inclusivist and interculturally principled common ground for the regulation of communication. (shrink)

Lawyers pretend as if the process of application of laws, as well as its outcome, could be an analytic-deductive derivation; especially law students learn that legal decision-making is primarily a logic process. But we know that application of laws depends on analytic-logical as well as on voluntaristic (wilful) elements. Exact relations between these components are unknown and will be unknown. At most German law schools students as the most important imperative tool learn the so called “Auslegung” through the (...) use of theoretical instruments, which do not reflect the interpretation of law practice. These mentioned causes result in irrationality of legal decision-making. In order to achieve more rationality in the process and result of legal decision-making, the contribution makes four suggestions regarding legal methodology and legal education. These proposals consist of few long-term pragmatic approaches to more rationality of legal decision-making. (shrink)

Gifts: A Study in Comparative Law is the first broad-based study of the law governing the giving and revocation of gifts ever attempted. First, gift-giving is everywhere governed by social and customary norms before it encounters the law. Second, the giving of gifts takes place largely outside of the marketplace. As a result of these two characteristics, the law of gifts provides an optimal lens through which to examine how different legal systems confront social practice. The law of gifts is (...) well-developed both in the civil and the common laws. Richard Hyland's study provides an excellent view of the ways in which different civil and common law jurisdictions confront common issues. The legal systems discussed include principally, in the common law, those of Great Britain, the United States, and India, and, in the civil law, the private law systems of Belgium and France, Germany, Italy, and Spain. Hyland also serves a critique of the dominant method in the field, which is a form of functionalism based on what is called the praesumptio similitudinis, namely the axiom that, once legal doctrine is stripped away, developed legal systems tend to reach similar practical results. His study demonstrates, to the contrary, that legal systems actually differ, not only in their approach and conceptual structure, but just as much in the results. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Hypatia 17.4 (2002) 238-243 [Access article in PDF] Book Review Feminist Interpretations of Aristotle Feminist Interpretations of Aristotle. Edited by Cynthia A. Freeland. University Park: Pennsylvania State University Press, 1998. This volume consists of twelve essays, mostly newly published, on a variety of topics in Aristotelian scholarship ranging from the theoretical to the practical and productive parts of the corpus. The volume divides the papers into one group addressing (...) topics in Aristotle's metaphysics, physics, epistemology, biology, and logic on one hand, and his ethics, politics, poetics, and rhetoric on the other. The contributors include established scholars in ancient philosophy, such as Cynthia Freeland, Deborah Modrak, Martha Nussbaum, and Charlotte Witt, and younger scholars such as Angela Curran, as well as those in disciplines outside ancient philosophy, including literature, law, and political science. The latter group of essays includes a chapter by Luce Irigaray on Book IV of Aristotle's Physics from her work, An Ethics of Sexual Difference (1993), Freeland's interpretation of Irigaray's essay, as well as papers on Aristotelian political emotion, the historiography of Aristotle's rhetoric, and his political anthropology from Texas Law Review (1992). The very range of methodological perspective that lends breadth to the volume presents difficulties for an overview, in light of which four papers were selected for detailed comment, those on Aristotle's logic, Freeland's essay on Irigaray's reading of Physics IV, Aristotelian virtue ethics, and Aristotelian political emotion. Feminism and Aristotelian Logic While it is familiar to cite the inherent biases of theoretical disciplines like the social sciences and philosophy, it is less common to read how areas like mathematics and logic are similarly biased. It seems hard to see how a system of proof with rules, axioms, and formal notation is inherently biased against any one group. Yet feminists like Andrea Nye, Valerie Plumwood, and Luce Irigaray have criticized formal logic on the ground that it is antithetical to women's experience and interests. 1 In "Feminist Readings of Aristotelian Logic" (1998), Marjorie Hass takes on criticisms of Aristotle's logic, including three main objections: his logic is motivated by unequal relations of power, uses binary [End Page 238] truth-value, and ignores the concrete and the subjective in experience. In being thus characterized, Aristotle's logical theory represents a "gendered" way of reasoning, and should be avoided. Hass does well in replying to these objections with one exception. The first objection, that logic masks unequal power relations, is answered by Hass noting that logic and logical systems (in mathematics and philosophy) have arisen among various cultures and classes worldwide, and are not the domain of an elite group of men. Hass's further point that attaining logical skill can be liberatory to women needs to be underscored: it is surely politically loaded for feminists to argue that women cannot, or should not, do logic. Hass rightly responds to the third objection concerning the need for concrete experience on two grounds: first, for Aristotle the end of logical argument is in part the illumination of observed experience, not its dissolution, and second, that it is impossible to conceive of a language without any abstraction. We cannot construct a feasible language without abstract terms or categories, as Nye's criticism suggests.Hass's response to the second criticism, that bivalence is noxious, is correct but incomplete. The ground of this objection stems from the idea that in classical logic the laws of excluded middle and noncontradiction obtain such that given two contradictory propositions, only one can be true, and this fact implies inequality to feminist critics. But, as Hass points out, this objection does not acknowledge Aristotle's notion of contrariety in which both sentences are false—the point being that contrariety does not yield the same results as negation. Still, Hass admits, the "fluid" form of negation sought for by thinkers like Irigaray is not forthcoming in Aristotle's logic. 2 Here Hass overlooks what Aristotle has to say about future contingents in De Interpretatione 9, that statements about the future are neither true nor false: "it is not necessary that of every affirmation... (shrink)

Governments, or at least the clever ones among them, are aware of the factors guiding business activities. In the course of adopting and enforcing economic legislation, they seek to attract business activities in order to increase national income, generate employment opportunities, and, very generally, please voters. Hence economic law may be considered an economic good, as suggested by the title of this book. That function, which most rules of economic law have in the competition of systems, was strengthened by the (...) worldwide liberalization of trade. Today, it is of greater significance than ever before. Lawyers, economists, academics, and practitioners, from inside and outside Germany, have taken a look at the facts and have discussed approaches to conceptualizing them. The resulting 30 essays, collected in this volume, contribute to the interpretation of existing, and the making of new, economic law. (shrink)

When he gave his first political work the title The Elements of Law Natural and Politic, Hobbes signalled an agenda to revise and incorporate continental Roman and Natural Law traditions for use in Great Britain, and from first to last he remained faithful to this agenda, which it took his entire corpus to complete. The success of his project is registered in the impact Hobbes had upon the continental legal system in turn, specific aspects of his theory, as for (...) instance the right to punish, entering the European civil code through Pufendorf, and remaining to this day. This is a topic of considerable importance at a time at which the UK is considering scrapping the European Union, with all the attendant the legal ramifications. But strangely, despite some acknowledgement of Hobbes’s contribution to European civil law, and specifically the German civil code, the larger legal context for his thought has not thus far been systematically addressed. -/- Key words: Hobbes, civil law, common law, jurisprudence, ‘artificial reason’, natural law, sovereignty,. (shrink)

The dialectical connection of law and culture is the relevant subject of research in philosophy, theory, and sociology of law, first and foremost due to the fact that insufficient theoretical substantiation lawmaking activity of politicians currently generates serious issues. Those of one cultural-legal traditions are unable to understand their partners belonging to another legal culture. Any modern legal theory should take into account the definition of culture the backbone factor for modern civilization. The novelty this research consists in examination of (...) the fundamental aspects of “law-culture” system alongside on the analysis of views of Western researchers previously unfamiliar to the Russian science. The goal of this work lies in revealing the key aspects of dialectical connection of law and culture and their correlation in modern era. The philosophy of law features ambivalent interpretation of the phenomenon of law: 1) as one of the forms of collective consciousness – along with culture, morality, philosophy, science,or religion; 2) in broad view of culture as a synonym of civilization, law would manifests as the crucial element of culture that generates multiple realities of sociocultural life of the people, society and the state. The research of dialectical connection of law and culture developed in the modern era, may contribute to resolution of complex problems that emerge in the contradictory “law-culture” system, which is of vital importance for the existence of separate national communities, as well as for survival of all the entire humanity. (shrink)

The dominant contemporary interpretation of Adam Smith’s thought endeavors to show his anti-state attitude. According to this interpretation, Smith, as the father of economics would also be an opponent of state interference in the activity of private entities. The purpose of this work is a comprehensive presentation of the social system described by a Scottish philosopher. This task is accomplished by drawing attention to Smith’s views on the state and the law, as well as on his participation in (...) the creation of an area of knowledge known then as political economy. In order to reconcile the seemingly inconsistent views presented in Smith’s most famous works, the main subject of this analysis are the less frequently studied _Lectures on Jurisprudence_. This book, which offers Smith’s views on the role of the state and law, is the key to the correct reading of the thesis put in _Theory of Moral Sentiments_ and _An Inquiry into the Nature and Causes of the Wealth of Nations_. The social system emerging from these works referred to by Smith as the civil government, can in retrospect be regarded as the progenitor of liberal democracy. The state and the law play a vital role in the economic life of this system. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:THE ROLE OF AN ULTIMATE AUTHORITY IN RESTORATIVE JUSTICE: A GIRARDIAN ANALYSIS Sara Osborne I. Restorative or Retributive Justice South African Episcopal Archbishop Desmond Mpilo Tutu's account of the gritty practicality of reconciliation versus retribution in his book, No Future Without Forgiveness, focuses long overdue attention on Restorative Justice, a law reform movement probably better known in international than in American legal circles. A persuasive assertion of Restorative Justice (...) advocates in their critique of increasingly retributive practices such as mandatory minimum sentencing, mandatory arrest, death penalty, juvenile incarceration, "three strikes" legislation, no parole, diminished prisoner services, to name a few, is that reintegrating offenders back into a community is a much more effective deterrence to anti-social violence than punishment alone. They have also observed that communitarian ideals and practices, more visible in traditional cultures1 are more conducive to Restorative goals ofreconciliation and reintegration than are practices of retributive justice rooted in ideals of individual rights. Therefore, such adjudicatory practices should serve as models for preferable alternatives. 1An examination ofrestorative justice under code-based systems of law (European, Roman Law) might also reveal more affinities since the focus ofthese systems is to define the permissible, rather than the impermissible. Code-based law begins with the commons; rightsbased law begins with the individual. 80Sara Osborne However, Western-style retributive justice remains the primary model for international law and Restorative Justice is the prophetic "outsider" voice. So, it is appropriate to ask to what extent and under what conditions are Western retributive justice systems able to incorporate or accommodate adjudicatory practices ofnon-Western or traditional cultures? How critical a factor is religion? These questions will appear wherever Western Law struggles to bring more cultural diversity under a unifying umbrella and they deserve close scrutiny. René Girard's insights into the relationship between law, religion, culture and violence are helpful in identifying practical implications ofthe restorative vision and systemic weaknesses ofretribution, and perhaps illuminating a third way. The metaphor of an organ transplant may be useful: without a genetic match between host and donor both risk destruction. It is the thesis of this paper that that genetic material is a very inclusive conceptualization of "religion" which I have named "Ultimate Authority," drawing on Girard's mimetic theory for the theoretical analysis. In other words, "religion" is indeed, always and everywhere, a critical factor in culture-specific institutions ofjustice. A Girardian understanding ofthe relationship between Ultimate Authority and criminaljustice systems indicates that while there are valuable lessons to be learned from trans-cultural dialogue, wholesale transplants may not be possible, or even advisable because conditions essential for comparable success do not exist in Western legal culture. This paper first presents some background about Restorative Justice, followed by an outline ofRené Girard's mimetic theory to define "Ultimate Authority." The second half of the paper describes alternative adjudicatory processes which have attracted the attention of Restorative Justice advocates and concludes with suggestions about future directions for criminal justice policy discussion. Restorative Justice is a movement which drew its initial energy from Civil Rights era non-violent social action. It has found avid supporters among those whose activism for socialjustice is faith-based as well as those whose activism is rooted in more secular communitarian ideologies. Perhaps because of its international following, a significant contribution ofthe movement has been to initiate trans-cultural dialogue about criminal justice, fostering an increased use of alternative dispute resolution techniques, primarily mediation. Restorative Justice doctrine insists that all crime is personal, evidence ofa broken relationship between victim, offender, and community. Restoring "right relationship" between all parties is both a moral and legal obligation; "justice" to be just must go well beyond addressing the specifics of the act which effected the break. In contrast, the focus of The Role ofAn Ultimate Authority81 retributive justice appears abstract, procedural, and narrow in pursuit of impartiality or neutrality, the ideal of Blind Justice.2 Howard Zehr, a consultant on criminal justice and a Canadian Mennonite who wrote the classic Restorative Justice primer, Changing Lenses: A New Focusfor Crime andJustice, describes the retributive criminaljustice process as "a drama between two abstractions," meaning a criminal and a victim, where the "victim" is even further abstracted... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Human Liberty and Human Nature in the Works of Faustus Socinus and His ReadersSarah MortimerI.Few issues were more hotly contested by early modern theologians than the extent of human liberty and its implications for both religion and society. In the Protestant world, the sixteenth century saw increasingly strident statements of mankind's bondage to sin and the importance of God's eternal decree of predestination, but the concept of human moral (...) responsibility still had its defenders. One influential proponent of human liberty was Faustus Socinus (1539–1604), the Italian scholar known most commonly today for his denial of the trinity. Yet the central theme of his theology was his insistence that Christian virtues must be carried out voluntarily; it was from this principle that his more heterodox ideas flowed. He made a sharp distinction between natural and voluntary action, and argued that the practice of Christianity must be an act of human will, not one to which men were drawn by nature. Separating Christianity from the natural order, Socinus argued that eternal life awaited those who chose to follow the law of Christ rather than the natural law. His argument challenged the Protestant commitment to the unity of natural and divine law and it opened up conceptual space for voluntary action outside the natural law. In this article, I shall sketch the Socinian position on human liberty and Christianity, and suggest how and why the Italian's ideas were developed by Protestants in the early seventeenth century. His readers included the eminent Dutch scholar Hugo [End Page 191] Grotius (1583–1645), and the exchange between Grotius and the Socinians reveals the concern on both sides to explain the relationship between human liberty, Christianity, and natural law.Socinus' life, like his theology, began within the reform movement in Italy and ended among the marginalised anti-trinitarians in Poland. Born of a long line of Italian jurists, he shared both his family's legal interests and their critical approach to the Catholic Church. In his youth he had been a courtier in Florence but his increasingly critical attitude towards Catholicism—and the death of his patron Grand-Duke Cosimo I—resulted in his departure from Italy in 1574. After a period in Basel he found a home among the Polish Anabaptists at Rakow, a young and precarious community which he helped to sustain through his advice and through the tracts which he penned on their behalf.1 During these years, he was also able to develop his own interpretation of Christianity, and to explain it in numerous works issuing from the community's press. Although his ideas generated a lively debate from the start, both in Poland and Germany, it was only after his death that they began to be absorbed into the mainstream of European intellectual discussions. Socinus' theological ideas had their attractions for some Protestant readers, but they became entangled with more political questions and their implications for civil life began to cause serious alarm. For this reason my focus will be upon the responses of Dutch and German readers, particularly Hugo Grotius and Johan Crell (1590–1633), both of whom addressed the civil as well as the theological aspects of Socinus' legacy. First, however, I shall draw out the salient points from Socinus' rich and complex theology, paying particular attention to his understanding of human liberty. Unlike his orthodox Protestant contemporaries, Socinus believed that liberty was the precondition for virtue.Socinus shared with the broader Christian humanist tradition the belief that Christ demanded works as well as faith from his followers. Christians must follow the pattern of ethical living laid down by their master; like Erasmus before him, and like the Italian exiles he met in Basel, Socinus saw Christianity as a religion of action.2 For this reason, he was determined to protect the liberty and capacity of each individual to act virtuously, and therefore to defend what he understood as human free will. It was, he felt, [End Page 192] a pressing task, for these qualities were being undermined by his contemporaries and particularly by those on the Protestant side. Most Protestants followed Luther's belief, expressed most forcefully in De Servo Arbitrio (1525... (shrink)

In this study, we examine the determinants of corporate environmental responsibility, as well as the relationship between legal systems and CER as measured by a unique set of global environmental cost data. Results of our analyses show that firms’ legal origins affect CER, which requires a long-term management perspective. Specifically, our results indicate that civil law firms exhibit significantly higher levels of CER than common law firms. In addition, results of an auxiliary test suggest that manager shareholding (...) has a significant, nonlinear relationship with CER. The association between a firm’s legal origin and its CER performance remains robust after controlling for the effects of managerial ownership and issues related to endogeneity. Our findings imply that although the majority of corporate law studies in the past few decades provide support for the common law system emphasizing the maximization of shareholder value and investor protection, the civil law system stressing the maximization of stakeholder wealth and the importance of CER may become more influential in the coming decades as CER becomes central to firms’ operations. (shrink)

As we increasingly delegate decision-making to algorithms, whether directly or indirectly, important questions emerge in circumstances where those decisions have direct consequences for individual rights and personal opportunities, as well as for the collective good. A key problem for policymakers is that the social implications of these new methods can only be grasped if there is an adequate comprehension of their general technical underpinnings. The discussion here focuses primarily on the case of enforcement decisions in the criminal justice (...) class='Hi'>system, but draws on similar situations emerging from other algorithms utilised in controlling access to opportunities, to explain how machine learning works and, as a result, how decisions are made by modern intelligent algorithms or 'classifiers'. It examines the key aspects of the performance of classifiers, including how classifiers learn, the fact that they operate on the basis of correlation rather than causation, and that the term 'bias' in machine learning has a different meaning to common usage. An example of a real world 'classifier', the Harm Assessment Risk Tool (HART), is examined, through identification of its technical features: the classification method, the training data and the test data, the features and the labels, validation and performance measures. Four normative benchmarks are then considered by reference to HART: (a) prediction accuracy (b) fairness and equality before the law (c) transparency and accountability (d) informational privacy and freedom of expression, in order to demonstrate how its technical features have important normative dimensions that bear directly on the extent to which the system can be regarded as a viable and legitimate support for, or even alternative to, existing human decision-makers. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Law’s Virtue: Fostering Autonomy and Solidarity in American Society by Cathleen KavenyEric E. SchnitgerLaw’s Virtue: Fostering Autonomy and Solidarity in American Society By Cathleen Kaveny WASHINGTON, DC: GEORGETOWN UNIVERSITY PRESS, 2012. 304 PP. $29.95In Law’s Virtue, Cathleen Kaveny calls those in Western liberal countries to rethink their fundamental framework of ethics and law through the guiding principles of autonomy and solidarity, understood through the Catholic context of Thomistic (...) virtue. The law operates not as the fence of individual isolation as it does in Enlightenment rights theory, whereby liberty is preserved through negative restraint, but as the teacher of a limited form of the virtues of prudence and justice (52). The law teaches this thin form of prudence through autonomy, which Kaveny takes from Joseph Raz as “the capacity to be the ‘part-author’ of one’s own life” (53). Solidarity, pulling from Pope John Paul II, correlates to a learned justice, in that it “attend[s] to the unseen members” of the community (54). It recognizes that the good of the community and the good of individual members are inexorably intertwined.The opening epigram of the preface, which sets the tone for the whole work, is a quotation from Isidore of Seville found in Aquinas: “Law shall be virtuous, just, possible to nature, according to the custom of the country, suitable to place and time, necessary, useful; clearly expressed, lest by its obscurity it lead to misunderstanding; framed for no private benefit, but for the common good” (xi). Kaveny argues that the phrases “possible to nature” and “custom of the country” need more attention in pluralist, democratic societies, because law is morally formed by its constituent community and there are deep disagreements within those communities. This gives a direction for how Catholics, and all citizens, should attempt to influence laws in these democracies. Because the law is a form of consensus over time, it should use severe sanctions such as criminal law only to reinforce the consensus that it represents. Tort and tax law are less severe tools that can encourage the moral direction of society, which, when used well, maintain the consensus of the law but still allow it to be a moral teacher.Kaveny’s practical thinking in this text does have some seeds of radical change. When she moves to the practicalities of life issues in the law—such as abortion, euthanasia, and genetics—she argues that the “entire fabric of the Anglo-American legal system” needs to add the concept of the “vulnerable” person to the “reasonable person” (79). In addition, her reframing of life issues contends that the Catholic view of issues like abortion is too different from [End Page 212] the “custom of the country” to make a change to the virtues and practices of other citizens. Instead, attention to the support necessary for families and social difficulties of economic poverty represents a way of using the law as a moral teacher while recognizing its limits (89, 156, 209). The book concludes with an incisive look at voting, in which Kaveny argues that the idea of issues-based voting is wrongheaded; instead, she urges voters to consider that they are voting for an individual who will take a broad moral stance and make a broad set of decisions (197 ff.).The quality of Kaveny’s clear thinking and moral consistency makes this book a pleasure to read—even for those who may disagree about the nature of the law or the virtues that Christians should bring to political, legislative, and judicial systems. This text, from its depth of legal and theological commitments, sets a high bar for further dialogue.Eric E. SchnitgerFuller Theological SeminaryCopyright © 2015 Society of Christian Ethics... (shrink)

The penetration process of structures traditionally assigned to civil law into administrative law, especially administrative law aiming environmental protection, has been more noticeable through recent years. This process resulted in deepening the absence of a clear separation of private law norms from public law norms. It led to the existence of so-called quasi civil solutions, which can be found for example in the Act on prevention from damages in environment and its repair. Their specificity consists in the fact (...) that they cannot be regarded as civil law structures due to the differences between them and the civil law structures. This legal status sets new challenges for legal theorists as well as practition- ers. They concentrate on interpretation of administrative law provisions which were penetrated by civil law structures, taking into account differences between interpretation of administrative and civil law provisions. We should not reject specific character of the civil law provisions’ interpretation and interpret these provisions only by taking into account specificity of administrative law inter- pretation. Civil law institutions are characterized by a larger field for action, which is left for parties or performers, in comparison to the institutions of ad- ministrative law. This specificity of civil law structures should be considered as its advantage that should not be removed in the activities of public authorities. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Destruction of the Seven Nations in Deuteronomy and the Mimetic Theory Norbert Lohfink Hochschule Sankt Georgen, Frankfort The book of Deuteronomy is a narrative with two narrative voices which do not necessarily present the same perspective, the one of the narrator, the other ofMoses. By employing the technique of showing rather than telling, the narrator allows his Moses to articulate a new design of the world in the (...) Deuteronomic law. Although mimetic theory may be important to our understanding of both perspectives, I will focus here solely on that world presented by Moses' speeches.1 A brief summary of my essay "Opfer und Säkularisierung im Deuteronomium" (Sacrifice and Secularization in Deuteronomy), in whose final section I found it necessary to tum to René Girard's mimetic model for clarification of the evidence, provides the basis for the revision and expansion of that study which follows. Deuteronomy—a new conception of the sacred My essay was in the form of a debate with the secularization thesis of Moshe Weinfeld, whose point ofdeparture is the Deuteronomic centralization of sacrifice in Jerusalem.2 In Deuteronomy and the Deuteronomic School, Weinfeld argues that all sacrifice as well as everything sacral was abolished throughout the land, that the sacred was restricted to the central cultus and all else became the profane. I sought to demonstrate that the historical assump1 With regard to the narrator's perspective a central question which arises, for example, is whether Moses is a sacrificial victim or a scapegoat. 2 For an early criticism of Weinfeld's work, see Jacob Milgrom (1973). 104Norbert Lohfink tions of his thesis are based on an erroneous interpretation of the evidence. Although I cannot review those assumptions here, it is important to point out that the evidence is more complicated than Weinfeld seems to admit. In the book of Deuteronomy, we see that sacrifice indeed is abolished throughout the land. Less apparent is the fact that that restriction extends also to the rituals of sacrifice practiced by the central cultus. There is no mention of such rituals in Deuteronomy. A close study of the text reveals that they in fact have undergone a subtle transformation. The 14 centralization laws which describe the pilgrimage to the central sanctuary are presented in a literary form that resembles a ritual (see the tables in Lohfink 1992, 25-31). The high point of that pilgrimage is not the slaughter and offering of animals but the joy of a common meal. The killing of the animals is relatively insignificant in the light of the celebration of Israel's existence "before the countenance of YHWH." The Israel that celebrates this festival is moreover a society where there are neither poor nor needy. This ideal society constitutes in Deuteronomy the true sacred. By comparison with the older, archaic-cultic, understanding of this sacred the transferrai of the world-reality of the society 'Israel' into the sacred appears to imply its disintegration. But this is not the case. Deuteronomy embodies an extension of the sacred, not its demise. It presents a new interpretation of the phenomenon. The process of transforming the meaning of the sacred is mirrored in designation of Israel, indeed all of Israel, as qadosh 'holy'. It is no longer the priests alone who are considered holy but the entire population. Deuteronomic law is framed by statements that name Israel as "a people holy to the LORD your God" (7:6; 26:19) and that promise the holiness of Israel as a future blessing (28:9).3 Now 'holiness' always means the marking of a partial realm out of a greater realm which becomes thereby the 'profane'. This is what is meant in Deuteronomy. The nation of Israel is 'holy' in contrast to the other 'nations;' it is, according to 7:6, the "people for his own possession out of all the peoples that are on the face of the earth." In 26: 18ff. this rhetorical formula splits into two discrete references, the one stating that Israel wül be "a people for His own possession," the other that "He will set you high above all the nations He has made." Both texts depict a system of holy-profane... (shrink)

Statutory interpretation involves the reconstruction of the meaning of a legal statement when it cannot be considered as accepted or granted. This phenomenon needs to be considered not only from the legal and linguistic perspective, but also from the argumentative one - which focuses on the strategies for defending a controversial or doubtful viewpoint. This book draws upon linguistics, legal theory, computing, and dialectics to present an argumentation-based approach to statutory interpretation. By translating and summarizing the existing legal interpretative canons (...) into eleven patterns of natural arguments - called argumentation schemes - the authors offer a system of argumentation strategies for developing, defending, assessing, and attacking an interpretation. Illustrated through major cases from both common and civil law, this methodology is summarized in diagrams and maps for application to computer sciences. These visuals help make the structures, strategies, and vulnerabilities of legal reasoning accessible to both legal professionals and laypeople. (shrink)

While human rights treaties provide a formidable set of principles on education and values, domestic Courts often tend to adjudicate claims in terms of local arguments for or against each particular educational practice. This article explores how international human rights law could inspire the interpretation of domestic law and educational practice, without neglecting specific cultural aspects. Firstly, the article reviews the sociological debate on values in education and shows its importance for the legal discussion. Secondly, some critical contestations of international (...) cultural human rights are outlined, as well as certain arguments to justify the importance of this model. The study of international law follows: the UN, the European Court of Human Rights, and three relevant African Charters, as well as every reference to education made by the African Commission on Human and Peoples’ Rights and by the African Court is examined. Lastly, a comparative section reveals a certain cultural commonality inspired by the UN treaties, but also reflects some cultural and institutional differences between the European and the African regional systems. (shrink)

The primary aim of this chapter is to show that several missteps made by others in in their thinking about law as an artefact are due to misconceptions about the role of intentions in understanding law as an artefact. I first briefly recap my own contention that law is a genre of institutionalized abstract artefacts (put forth in The Functions of Law (OUP 2016) and subsequent papers), mostly following Searle’s understanding of institutions and Thomasson’s understanding of public artefacts. I highlight (...) the central place that this theory affords law’s functions, without requiring the theorist to say that possession or performance of the function is either necessary or sufficient for inclusion in the class of law. Some of the most common misunderstandings are exemplified in Brian Leiter’s paper ‘Legal Positivism about the Artifact Law’. He thinks that holding an intentionalist view of artefacts commits the theorist to privileging drafters’ intentions when interpreting law. (It doesn’t.) He also has confusions about the differences between artefact tokens and artefact types leading him to a problematically broad understanding of artefacts. Another problem can be seen in thinking that functional understandings of artefacts are vulnerable to the same problems that arise in functional explanations for biological systems. I go on to consider the work of Luka Burazin and Corrado Roversi, addressing worries that making intentionality central to artefacts implies too much conscious thought is required to make one, noting that several theories of intentionality do not require conscious thought in the execution of intentional action. While those who think a central place for intentionality threatens to leave us unable to explain customary law, this can be dealt with by noting the important distinction between customary rules and customary laws (where the latter requires a decision to enlist public aid in redressing violations). I claim that authors’ intentions are communicated requests for the artefacts’ audiences to see the artefacts as members of their putative kinds. Finally, I address the question of whether or not legal systems are themselves artefacts and institutions, given that they may or may not have been intentionally created. An early lawgiver might have created a legal system by accident in the process of handing down the first laws. I raise the possibility that we might want to impute intentionality to necessary by-products of artefact creation, seeing those by-products as artefacts as well. (shrink)

Proponents of strict rule-based theories of judicial reasoning in common-law systems have offered a number of criticisms of analogical alternatives. I explain these criticisms and show that at best they apply equally well to rule-based theories. Further, I show how the analogical theories explain a feature of judicial common-law reasoningthat rule-based theories ignore. Finally, I show that reason-based, analogical theories of common-law judicial reasoning, such as those offered by John Horty and Grant Lamond, offer especially strong (...) rejoinders to the rule-theorist objections and persuasive accounts of distinguishing. (shrink)

Physicists regularly invoke universal laws, such as those of motion and electromagnetism, to explain events. Biological and medical scientists have no such laws. How then do they acquire a reliable body of knowledge about biological organisms and human disease? One way is by repeatedly returning to, manipulating, observing, interpreting, and reinterpreting certain subjects—such as flies, mice, worms, or microbes—or, as they are known in biology, “model systems.” Across the natural and social sciences, other disciplinary fields have developed canonical examples that (...) have played a role comparable to that of biology’s model systems, serving not only as points of reference and illustrations of general principles or values but also as sites of continued investigation and reinterpretation. The essays in this collection assess the scope and function of model objects in domains as diverse as biology, geology, and history, attending to differences between fields as well as to epistemological commonalities. Contributors examine the role of the fruit fly Drosophila and nematode worms in biology, troops of baboons in primatology, box and digital simulations of the movement of the earth’s crust in geology, and meteorological models in climatology. They analyze the intensive study of the prisoner’s dilemma in game theory, ritual in anthropology, the individual case in psychoanalytic research, and Athenian democracy in political theory. The contributors illuminate the processes through which particular organisms, cases, materials, or narratives become foundational to their fields, and they examine how these foundational exemplars—from the fruit fly to Freud’s Dora—shape the knowledge produced within their disciplines. Contributors Rachel A. Ankeny Angela N. H. Creager Amy Dahan Dalmedico John Forrester Clifford Geertz Carlo Ginzburg E. Jane Albert Hubbard Elizabeth Lunbeck Mary S. Morgan Josiah Ober Naomi Oreskes Susan Sperling Marcel Weber M. Norton Wise. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Philosophy 41.3 (2003) 420-421 [Access article in PDF] Philip de Bary. Thomas Reid and Scepticism: His Reliabilist Response. New York: Routledge, 2002. Pp. xv + 203. Cloth, $90.00.Readers of Thomas Reid's An Inquiry into the Human Mind and his two Essays have long been puzzled by the philosophical purchase of his appeal to the principles of common sense. Writing in 1765, an anonymous (...) correspondent in the Monthly Review complained that Reid's use of the term "common sense" lacked precision, while Joseph Priestley claimed in 1774 that in the Inquiry Reid referred to no fewer than thirteen principles of common sense. According to Priestley, this proliferation of what he called "independent, arbitrary, instinctive principles" demonstrated that Reid had failed to capture the simplicity inherent in human nature, and consequently that Reid's system had to be rejected for methodological as well as empirical reasons. Reid was then attacked by an unidentified English critic for having ostensibly plagiarized the writings of Claude Buffier, while Kant famously affirmed in the preface to the Prolegomena to Any Future Metaphysics that Reid had completely missed the point of Humean scepticism, and that his invocation of common sense was little more than philosophical obfuscation. Further debate followed the publication of Reid's Essays on the Intellectual Powers of Man in 1785, with reviewers in the English and Critical Review challenging his account of our power of judgement and of the first principles of human reasoning. Even Dugald Stewart believed that Reid's use of the term "common sense" was ambiguous, and opted to reformulate Reid's ideas in terms of what Stewart called the "fundamental laws of human belief." Both friend and foe alike, therefore, found Reid's notion of common sense problematic, and the critical discussion of this feature of his writings continued unabated throughout the nineteenth century.In Thomas Reid and Scepticism, Philip de Bary is largely silent about this earlier literature and engages with the body of commentary on Reid's common sense epistemology written in the latter half of the twentieth century by such philosophers as Roger Gallie, Louise Marcil-Lacoste, Keith Lehrer, and Daniel Schulthess. De Bary's starting point is of a piece with his approach to the history of philosophy, for in his introduction he tells us that he will keep "the main focus of the discussion on those aspects of Reid's philosophy for which some direct contemporary relevance can be claimed" (2). Consequently, his interpretation of Reid's writings is primarily orientated toward current epistemological debates and he more or less ignores the details of Reid's historical context and the long tradition of critical commentary sketched above. Indeed, de Bary is not overly concerned with niceties of history because he sets out to "do 'history of philosophy' as philosophy rather than as history" (2). While this review is not the place to discuss the coherence of the enterprise thus described in any depth, de Bary can be seen as constructing a false dichotomy between philosophical and historical analysis and as overlooking the point that the study of the history of philosophy requires a firm grasp of both historical context and the intellectual issues at hand. Moreover, it would seem that if we genuinely want to learn from history, then we need to understand the thoughts and actions of historical actors in their own [End Page 420] terms rather than simply project our own problems onto the past. This means that our readings of texts must be rooted in the knowledge of their contexts, otherwise we run the risk of anachronism or worse.Such general worries notwithstanding, Thomas Reid and Scepticism provides a useful introduction to some of the major themes in Reid's philosophical works. At his best, de Bary displays many of the same virtues as Reid as a thinker. He is by turns patient, clear, and insightful, and he has many interesting things to say, even if the historical ground of his interpretation of Reid is occasionally shaky. In the course of the book he... (shrink)

In Section One the automatic ratification of existing law as immediately self-validating is shown to undermine the very purpose of law - the surpassing of arbitrariness and of Czar-like ukases. In Sections Two and Three there is an attempt to explore the justification or grounding that can be given for the existing laws and civil disobedience, respectively. In both cases, the justification has been given in terms of fundamental human dignity which should never be violated by empirical laws. Only (...) when such a violation does occur can civil disobedience be justified. Therefore, the rationale for, and motivation of, both a legal system and civil disobedience are the same.However, one does not so easily resolve the opposition between the two. For the law itself is proclaimed apodictically, without the reservation that one may with impunity break the law and commit an act of civil disobedience whenever the law violates one's conscience. Otherwise, we do not have a rule of law but instead anarchy. For, as Jesus has said and Abraham Lincoln paraphrased it: “A kingdom divided against itself will not stand.” The law cannot declare that it is legal to break the law without incapacitating itself. The law must punish its violators to be a valid law; without powers of enforcing sanctions against violators the law is no law.However, we must not consider for this reason that those who are responsible for making, interpreting, and enforcing the law and those who are civilly disobedient are working at cross purposes. Both are concerned with justice. The civilly disobedient individual is concerned with improving the existing legal system. He envisions his role as therapeutic rather than destructive. He believes that the ideal of justice is being violated in some way in the existing laws. He therefore makes of himself a martyr, bearing witness to the truth, and hoping thereby to educate and enlighten and to move men of good will - in short, to effect a change in the law.Before an individual who respects the rule of law should be willing to be civilly disobedient he must be convinced of the violation of basic human rights in the law. He also must consider whether civil disobedience is the most effective means of producing the desired change. But beyond the pragmatic consideration of the most effective means to produce the desired end, there is also the question of what is most meaningful and suitable for him personally in living in conformity with the categorical imperative. Discussions of civil disobedience which limit themselves to questions of practical consequences do a great disservice to such actions. For, must we not admire those who resisted Hitler, even though they realized that their actions were futile in terms of changing the law and might even mean their deaths?In a free society, dedicated to the rule of law, all citizens are concerned with justice. Those entrusted with the responsibility of enforcing the law obviously must do just that, so that violators of the law have to be punished. However, when legislators and judges notice that some of the most perspicacious and conscientious individuals are openly violating existing laws in the name of a higher law, they should also make a serious reappraisal of their positions, looking to see whether they may not have become morally insensitive or careless. Indeed, the real value of a free society is its flexibility and tolerance of dissent, even that of civil disobedience, which can serve to dramatize forcefully, deep-seated convictions concerning the injustice of certain laws on the books. It is true that fanatics from time immemorial have been willing to sacrifice much in the name of their cause. But whenever one finds that there is an individual who is willing to sacrifice much without the hope of personal advantage and who is also willing to provide arguments in defense of his position, society would do well to listen to his words and actions.Without the constant delving scrutiny and criticism of existing laws, there cannot be true legal responsibility. Therefore, the civilly disobedient individual, who is willing to put his head on the block in order to abrogate unjust laws, is in fact the legally responsible individual par excellence. (shrink)

RESUMO:As relações de conflito entre os grupos sociais constituem um tópico relevante para a filosofia política, e as maneiras distintas como elas são interpretadas dependem de uma visão mais ampla sobre as condições apropriadas a um Estado bem-ordenado. Maquiavel, por exemplo, ao refletir sobre o caso da Roma Antiga, procurou refutar aqueles que condenavam os tumultos entre os nobres e a plebe da cidade, como se eles tivessem provocado apenas males à república. Para o autor, tais tumultos estavam entre as (...) principais causas da liberdade romana, visto que a diferença nos “humores” dos grandes e do povo resultou em embates que deram origem às leis favoráveis à liberdade. Rousseau, por sua vez, descreveu a existência de “associações particulares” dentro da sociedade civil como algo potencialmente nocivo à harmonia da república, pois cada uma delas contém um interesse particular passível de se sobrepor ao bem comum, nas deliberações públicas, prejudicando o prevalecimento da vontade geral. Ainda para o genebrino, a ocorrência de longos debates e de tumultos nas assembleias populares poderia ser um sinal de divisões internas capazes de ocasionar a ruína do Estado. Frente a essas duas maneiras de conceber o papel político dos conflitos sociais, o objetivo deste trabalho é realizar uma análise comparativa das ideias de Maquiavel e de Rousseau. ABSTRACT:The conflictual relations between social groups constitute an important topic for political philosophy, and the different ways in which they are interpreted depend on a broader view of the appropriate conditions for a well-ordered state. Machiavelli, for example, by reflecting on the case of Ancient Rome, sought to refute those who condemned the tumultuous conflicts between the nobles and the plebs of the city as if they had only caused harm to the Republic. For this author, these tumults were among the main causes of Roman freedom, since the difference in the “humours” of the great and the people led to clashes that gave birth to laws favorable to freedom. Rousseau, for his part, described the existence of “private associations” within civil society as something potentially harmful to the harmony of the Republic, because each of them had a self-interest that was able to override the common good in public deliberations and jeopardize the prevalence of the general will. For Rousseau, the occurrence of long debates and tumults in the popular assemblies could also be a sign of internal divisions capable of causing the ruin of the state. In the face of these two ways of conceiving the political role of social conflicts, the goal of this article is to make a comparative analysis of Machiavelli’s and Rousseau’s ideas. (shrink)

Since the enactment of the first Hong Kong bilingual ordinance in 1989, tremendous effort and resources have been put to translating English legal documents into Chinese. Long before the implementation of bilingual legislation, the provision of interpreting services has remained an entrenched practice in the courtrooms of Hong Kong. This study has adopted a corpora approach to re-examine what seems to be reasonable and routine practices of the bilingual, legal system, the impacts of bilingual legislation, translation, and interpretation on (...) trial proceedings. Results generated from the corpus show the problems of anglicized Chinese translation of the Sexual Offences Ordinance under the British Common Law system; and interpreters’ performance which is intricately bound by the discourse practices of the legal professionals as well as the ideology of the bilingual legal system in Hong Kong. (shrink)

The last decade of the Qing dynasty and Republican period saw intensive efforts to revise the Qing Code, promulgate modern legal codes based on Japanese and German law, establish a modern system of courts, and develop a professional corps of lawyers and jurists. These institutional reforms were implemented as part of the drive to have extraterritoriality rescinded and safeguard the sovereignty of the Qing dynasty and then Republic of China. The reforms were accompanied by new categories within civil (...) and criminal law, new conceptions of legal knowledge and expertise, and rich discussions over sources of law which took place within the legal realm as well as the readership of Republican newspapers and journals. If, as Roger Berkowitz writes in his study of scientific codification in continental Europe, “in a legal system, there must be some way that the law comes to be known,” how did ways of knowing law change during this period of legal reform and broader intellectual change? Through a survey of jurisprudence textbooks and other legal publications, this paper argues that writers in early 20th-century China came to define jurisprudence in positivistic terms, ultimately using new conceptions of science and social science to identify its place within a new ordering of modern knowledge. (shrink)

In the context of office work, learning to handle an Enterprise Resource Planning system is important as implementation costs for such systems and associated expectations are high. However, these expectations are often not met because the users are not trained adequately. Electronic Performance Support Systems are designed to support employees’ ERP-related problem-solving and informal learning. EPSS are supposed to enhance employees’ performance and informal workplace learning through task-specific and granular help in task performance and problem-solving. However, there is little (...) empirical research on EPSS. Two survey studies addressed this research gap. In the first study, 301 people working in Human Resource -related positions and functions evaluated the learning potential of EPSS as well as potential advantages and obstacles concerning the implementation and use of EPSS. Though other measures are currently assessed as more important for learning, HR employees expect a strong increase in the significance of EPSS for employee learning. In the second study, 652 users of ERP software completed a questionnaire on characteristics of their daily work tasks, team characteristics, individual dispositions, their coping with ERP-related problems, and characteristics of EPSS. Findings indicate that the most frequently available and used approach when dealing with an ERP-related problem is consulting colleagues. Three EPSS types can be distinguished by their increasing integration into the user interface and their context-sensitivity. While external and extrinsic EPSS are available to many users, intrinsic EPSS are less common but are used intensively if available. EPSS availability is identified to be a strong positive predictor of frequency of EPSS use, while agreeableness as well as the task complexity and information-processing requirements show small negative effects. Moreover, more intensive ERP users use EPSS more frequently. In general, ERP users value, features such as context-sensitivity, an integration of the EPSS into the ERP system’s user interface, the option to save one’s own notes, and information displayed in an extra window. It is expected that EPSS will play an important role in workplace learning in the future, along with other measures. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:What Happened to Civility: The Promise and Failure of Montaigne's Modern Project by Ann HartleVicente Raga RosalenyHARTLE, Ann. What Happened to Civility: The Promise and Failure of Montaigne's Modern Project. Notre Dame, Ind.: Notre Dame University Press, 2022. ix + 178 pp. Cloth, $100.00; paper, $30.00Why are we witnessing increasing social polarization in Western societies? What has happened to make our liberal democracies so ideologically charged? Professor Ann (...) Hartle's book tries to answer these and other questions in line with the concept of civility that, according to her thesis, Michel de Montaigne created in early modernity and that is about to disappear in our day. Not in vain is Montaigne the protagonist of this book, given that Professor Hartle is a world-renowned specialist on the author of the Essays, although in this case she is interested in the transformations that gave rise to modernity in order to understand our present day. She reads Montaigne for a better interpretation of some central problems of our time, such as the difficulty to speak freely that is experienced on university campuses and, in general, the increasing politicization of our civil societies.Thus, in the first place, Professor Hartle's work interrogates the origins of civility, the social bond created in modernity. To this end, she exposes what happened in the time of Montaigne, when societies, based on the classical and Christian tradition, were plunged into a general crisis. This is what the French essayist detected, and it led him to propose a new type of bond. For this, it is necessary to free oneself from tradition, which had legitimized the division between masters and slaves, the source of all conflicts.Montaigne's movement is philosophical in character: It consists of a split carried out in his Essays between the natural human being and the philosophical observer, which leads to a break with traditional moral standards, identified with Nature. The new human being, thus unfolded, can choose his own hierarchy of values and address the good he chooses with his own will (although this will be a will purified of particularisms, without excessive self-esteem). Such self-awareness, achieved by Montaigne as an accidental philosopher, is concretized in the predominance of the concept of judgment, in the ability to freely choose our possibilities (and not ends dictated by Nature).The new world thus created, Hartle explains, gave rise to the liberal order. It is true that Montaigne was not a theorist, but in his work it is possible to find the rupture of the traditional hierarchy between masters [End Page 351] and slaves, now considered as equals before the law, which is above all, and which is the fruit of reason. In this civil society, human beings no longer dominate each other, and each peacefully pursues his purposes. It is the state, as the embodiment of the law, that regulates everything, except the space of freedom gained with the emergence of the modern public sphere.In this context, the concept of authenticity makes sense, which, according to Professor Hartle, is the best reflection of the breakdown of the traditional order and the disappearance of its moral community. Now each individual pursues his purposes and is no longer to fulfill the ends of a universal human nature. That is why the bond of civility, in which the absolute autonomy of the subject is recognized, as well as his equality before the law, replaces the moral ties of the traditional community and its hierarchies. It is the French thinker who best exemplifies this transit, by showing himself openly in his Essays as a common subject who pursues his purposes and who relates to others as equals, no longer as someone superior, capable of disputing merit, and dominating others.However, this new society and its civil bonds are in crisis; civility fades, or that is Professor Hartle's pessimistic conclusion. Today we are witnessing an ideologization of previously depoliticized areas, such as the university, with the demand for the use of politically correct language and the fear of expressing oneself freely, especially when one's own opinions do not align with the current political trends. The failure... (shrink)

The articles discusses the philosophical foundations and the traditions of the theory of the humanitarian and technological revolution. The subject-matter of HTR theory is the description and forecast of the transition from the industrial to the post-industrial phase of civilization development as well as the strategy and the most effective methods of management of various socio-economic systems. This theory, actively developing in recent years, focuses on goal setting and on determining priorities and development criteria in the field of technology, (...) science and education. The current revolution largely justifies the forecast of D. Bell, an author of the theory of post-industrial development, about the transition from the world of technology to the world of people. The human is the main subject and object of the changes. In this regard, we review an interdisciplinary program on human research, initiated in the 1980s by I.T. Frolov. The ongoing scientific revolution in genetics and the transition to autoevolution make these ideas even more relevant. The concept of universal evolutionism proposed by N.N. Moiseev is fundamental. This concept originates from philosophical and methodological generalizations based on the vast experience of computer modeling of “human-dimensional” systems. The principles of co-evolution of man and biosphere, the strategies for finding compromises are very close to the ecology of technologies, developed by the theory of HTR. It is difficult to overestimate the importance of the interdisciplinary concept of self-organization for many scientific fields and, in particular, for the theory of HTR. In our days, proposed by an outstanding mathematician, methodologist and thinker S.P. Kurdyumov, the interpretation of synergetics as a bridge between humanities and natural science, as a common language of natural scientists, mathematicians, scholars has become generally accepted. Kurdyumov predicted that many concepts and ideas of synergetics, through their philosophical understanding, would change the outlook and become an element of scientific culture. We show that this forecast turns into reality and in the process of HTR the ideas of synergetics begin to change our world. We pay special attention to the concept of self-developing systems, the theory of global scientific revolutions and the types of scientific rationality proposed by V.S. Stepin. In this regard, we can say that the HTR brings even more large-scale changes, covering not only science but also technology, society, the inner world of man. Identifying the philosophical foundations of HTR, we contribute to the development of methodology of this approach, enhance intra-scientific reflection and make possible to formulate unsolved problems more accurately. (shrink)

As Kent Greenwalt's second volume on aspects of legal interpretation, this book analyzes statutory and common law interpretation and compares the two. In respect to statutory interpretation, it first asks whether judges are "faithful agents" of the legislature or "independent cooperative partners." It concludes that the obvious answer is that neither simple categorization really fits-that the function of judges involves a combination of roles. The next issue addressed is whether the intent of those in authority matters for interpreting the (...) kinds of instructions contained in statutes. At the general level, the answer is "yes." This answer follows even if one thinks interpretation should concentrate on the understanding of readers, because readers themselves would treat intentions as part of the relevant context of the language of statutes. It would take some special reasons, such as constitutional structure or unreliability, to discount actual intents of legislators and use of legislative history. The book argues that none of these special reasons are convincing. On the question whether judges should focus on the language of specific provision or overall purpose, both are relevant, and purpose should become more important as time passes. In an analysis of various other features of statutory interpretation, the book claims that presidential signing statements should not have weight, that subsequent legislative actions short of new statutes should only occasionally carry importance, that "canons of interpretation," such as the rule of lenity, can provide some, limited, guidance, and that there are special reasons for courts to adhere to precedents in statutory cases, but these should not yield any absolute rule. A chapter on administrative interpretation of statutes claims that the standards agencies apply should differ to a degree from those of courts and that judicial deference to those interpretations is ordinarily warranted. The book's second part, on common law interpretation, considers the force of precedents, resisting any simple dichotomy between holding and dictum. It also defends the use of reasoning by analogy, not only in the initial stages thinking about a problem, but also in respect to some final justifications for decisions. An examination of the place of rules, principles, and policies argues that all three are relevant in common law interpretation; and shows that common law interpretation is not reducible to any formula. A final chapter compares statutory and common law interpretation, similarities and differences, how each can affect the other, and the significance of having a legal system in which they both play prominent roles. (shrink)

The article investigates the significance of syntax in the multilingual EU law. It attempts to respond to the question whether syntax is apt to contribute to the uniformity of that law and how, with regard to this function, it relates to the (widely disputed yet uncontested) semantic and pragmatic methods of achieving such a uniformity. In order to respond to this question, the article firstly, recalls fundamental concepts which would help conceptualize the endeavour and, secondly, presents examples of analysis of (...) syntax arrangements which can be deemed representative for the study of the said problem of contribution. The study finds that EU law (expressed in 24 official languages which have equal authentic status) relies on diversified syntax of its respective constitutive languages. Syntax structures used in respective language versions of EU law represent narrower, law-specific, form of syntax structures available in these languages. Its specificity is determined mostly by legislative traditions of respective EU member states. Syntactic structures of EU law produced in different official languages do not represent a single pattern because of diversified mode of producing illocutionary value of provisions in which strongly idiomatic modal verbs (modal operators) and even special modal structures (not necessarily containing modal verbs) are used to express legal norms. They also differ when it comes to their law-specific compositionality, i.e. flexibility of different syntax structure to produce the same meaning and, in the same time, to preserve their genre/register informational value. Notwithstanding, these structures have well pronounced and system-significant common features within respective Germanic, Romanic, and Slavic families of languages in which EU law is mostly reproduced. The sentence structure and the relevant register of EU law provisions are the same for respective versions of EU texts of law expressed in the languages belonging to the respective three language families which were examined for the sake of this study. These common features are re-enforced by the synoptic mode of producing EU law which imposes formal resemblance of provisions reproduced in respective EU official languages to each other. The multilingual EU legislator also uses patterns which grant legal text the relevant register, yet its specific EU character ultimately transpires through semantic aspects of EU texts rather than their mere syntax. The unity of the system is achieved most strongly through the EU specific interpretation, where the teleological methods (which can be conceived as a language means to achieve EU law goals and objectives at the pragmatic level) are of utmost importance. Thus, there is no EU-specific syntax which would, as such, contribute to unity of EU law. Instead, unity is achieved in the area of semantics and pragmatics. The well exposed anaphoric character of EU law (as any other type of law) may contribute to narrowing down possibility for differentiation of respective language versions of EU law. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Compassionate Justice: An Interdisciplinary Dialogue with Two Gospel Parables on Law, Crime, and Restorative Justice by Christopher D. MarshallGlen StassenCompassionate Justice: An Interdisciplinary Dialogue with Two Gospel Parables on Law, Crime, and Restorative Justice CHRISTOPHER D. MARSHALL Eugene, OR: Cascade Books, 2012. 386 pp. $33.60Christopher Marshall is known to Society of Christian Ethics members for his highly acclaimed book on restorative justice, Beyond Retribution, and for his plenary (...) address at the SCE annual meeting published in the JSCE 27, no. 2 (2007). The plenary address forms one chapter of the present Compassionate Justice. Well [End Page 221] informed on ethics, criminal justice, and human rights, Marshall is a New Testament scholar at Victoria University in New Zealand.Marshall points out that the two best-known of Jesus’s parables—the Compassionate Samaritan, and the Prodigal Son—have been the most influential of Jesus’s parables in Western culture and legal theory. The Compassionate Samaritan is Jesus’s response to a lawyer’s question that answers a central legal question of the time: Who is my neighbor, whom I am obligated by Leviticus 19:7 to love as myself? In the Prodigal Son, the three main characters in legal offense are clearly portrayed as the offender, the victim, and the law-abiding community; in turn, as Marshall points out, “the older brother’s reaction centers directly on the justice of his father’s actions” (192–93). Marshall argues that present legal theory can learn from careful dialogue with these two parables. These parables are not only historically influential but also so insightfully and beautifully crafted that dialogue with them can bring incisive insights. In addition, dialogue with them presses Anglo-Saxon liberalism where it is weak and needs to grow.The parable of the Compassionate Samaritan opens up questions about the need for Good Samaritan laws that defend persons who come to the aid of a person in danger of death (e.g., from an accident, fire, or drowning) against liability for inadvertently and unintentionally causing damage. Under present Anglo-Saxon law, such good Samaritans can be sued for damages. This is not the case, however, in most European countries. Similarly, most European and Latin American countries have bad Samaritan laws: Where “victims are in mortal danger and unable to save themselves,” there is a legal duty for “those who are consciously aware of the victim’s predicament, who are close enough to intervene, and who have the effective means of intervention available to them” to come to the aid of the victims. “The most glaring exception to this pattern,” Marshall argues, “occurs in Anglo-American legal systems” because of liberalism’s maximization of individual liberty even against coercion to come to the aid of persons who would die if no help arrives (155). Samaritan laws “give formal expression to the supreme value of human life, to the bonds of solidarity and empathy that comprise human identity and that bind people together in social community, and to ongoing need human beings have to be committed to one another’s rescue and restoration when severe harm befalls them” (174).Responding to the parable of the Prodigal Son, Marshall argues that both compassion and repentance are crucial for understanding the humanity and the sufferings of persons being defended or judged by law. This does not replace the standard tools of legal interpretation; it takes account of the more holistic context (288–90). In fact, “unreflective compassion can be dangerous and distorting” (296). Marshall discusses the complications insightfully and in a balanced [End Page 222] way. He concludes with an extensive discussion and refutation of perhaps the most important book-length criticism of restorative justice.Marshall’s interpretation of these two parables surpasses any other that I have read. His sensitive and thoughtful analysis of the experience of victimization goes beyond any other interpretation of the Compassionate Samaritan that I have seen. In this he resembles Daniel Philpott’s interpretation of victimization in Just and Unjust Peace (Oxford University Press, 2012). His description of the shameful rupture of relationship with father, family, and community by the prodigal son goes well beyond what I have seen previously. I think... (shrink)

This book offers a transnational perspective of evidentiary problems, drawing on insights from different systems and legal traditions. It avoids the isolated manner of analyzing evidence and proof within each Common Law and Civil Law tradition. Instead, it features contributions from leading authors in the evidentiary field from a variety of jurisdictions and offers an overview of essential topics that are of both theoretical and practical interest. The collection examines evidence not only as a transnational field, but in (...) a cross-disciplinary context. Each chapter engages with the interdisciplinary themes cutting through the issues discussed, benefiting from the expertise and experience of their diverse authors. (shrink)