The conception of the paper is connected with bringing forward the reflection of Leon Petrażycki on intuitive law. For this purpose I analyze the genesis and dynamics of this phenomenon on the cultural-historical level, as well as with reference to issues belonging to the scope of positive law. In addition, I broaden the research field with the range of problems touching on intuitionism, morality, and also independent ethics of Janusz Kotarbinski. The starting point of the methodological optics I assume (...) is constituted by the multi-aspectual transformations surrounding us in the sphere of axiology. Hence, if the pedagogical aspects are taken into account, it seems to me justified to undertake some actions in order to search for the logically consistent, sensible and universal solutions, which can become an ethical guide-post for the contemporary human being. (shrink)

How are law and morality connected, how do they interact, and in what ways are they distinct? In Part I of this book, Matthew Kramer argues that moral principles can enter into the law of any jurisdiction. He contends that legal officials can invoke moral principles as laws for resolving disputes, and that they can also invoke them as threshold tests which ordinary laws must satisfy. In opposition to many other theorists, Kramer argues that these functions of moral (...) principles are consistent with all the essential characteristics of any legal system. Part II reaffirms the legal positivist argument that law and morality are separable, arguing against the position of natural-law theory, which portrays legal requirements as a species of moral requirements. Kramer contends that even though the existence of a legal system in any sizeable society is essential for the realization of fundamental moral values, law is not inherently moral either in its effects or in its motivational underpinnings. In the final part, Kramer contests the widespread view that people whose conduct is meticulously careful cannot be held morally responsible for harmful effects of their actions. Through this argument, he reveals that fault-independent liability is present even more prominently in morality than in the law. Through a variety of arguments, Where Law and Morality Meet highlights both some surprising affinities and some striking divergences between morality and law. (shrink)

The status of laws of nature has been the locus of a lively debate in recent philosophy. Most participants have assumed laws play an important role in science and metaphysics while seeking their objective ground in the natural world, though some skeptics have questioned this assumption. So-called Humeans look to base laws on actual, particular facts such as those specified in David Lewis’s Humean mosaic. Their opponents argue that such a basis is neither necessary nor sufficient to (...) support the independent existence of scientific laws. This essentially metaphysical debate has paid scant attention to the details of scientific practice. It has mostly focused on so-called fundamental laws, assumed to take a particular form. I propose a pragmatist alternative—not as another position in the debate but as an alternative to the debate itself. This pragmatist alternative offers a view that questions the representational conception of truth presupposed by participants to the debate as well as the metaphysical import of fundamental laws. Statements of law serve many different purposes in science: I’ll look at some. But their central role is in inference, primarily to improve the epistemic state of a scientist with limited access to information. To play this role, a scientific law statement need be neither necessary, unconditionally universal nor even true. It must merely be sufficiently reliable within its domain of application. The use of laws in astrophysics and metrology will help to illustrate these points. (shrink)

Medicine, Power, and the Law demonstrates that criminal and civil justice interact with medicine and public health more than is presently understood. The book focuses on the role of healthcare practitioners and an array of other professionals across industries in identifying wrongdoers, reporting behavior, and testifying on behalf of the state or government agencies. It also covers circumstances in which law enforcement relies on medicine for evidence or support in ways that compromise medical ethics. By reporting or testifying as experts, (...) a range of people, from specialist pediatricians to flight attendants, can have a life-changing impact on individuals in the name of public health or medicine. People who work in hospitals, social work settings, and even airlines, often contribute to wrongful and aggressive criminal and civil actions against society's most vulnerable people, including parents, older adults, and people living with poverty. The book explores a number of examples, including police use of medicine as a restraint or the collection of blood as evidence and the risks of opting out of certain scientific discoveries, such as pharmaceuticals. It describes the harms that may come to those who engage in suboptimal but generally heretofore legal child-raising behaviors, and people opting to live independently as older adults. These can lead to civil and criminal charges when noticed by those in a position of power. Medicine, Power, and the Law is an important contribution for researchers and practitioners in medicine, the law, and the expanding field of bioethics. (shrink)

The purpose of legal theory seems to be a perpetually debated issue among legal scholars. Koskenniemi argues that the history of international legal theory is conditioned by a dialectical movement between a position justifying any given positive law based on the power of states, and a position arguing for a theory of the state where laws are justified only in accordance with certain substantial conditions. According to Lauterpacht there is very little support in Spinoza's political philosophy for (...) a “separate and independent theory of international law”. The chapter aims to contextualize the passages pointed to by Lauterpacht in order to investigate whether such an endeavor may produce an understanding of Spinoza's political philosophy that makes it apt to function as a basis for a practical theory of international law. Lauterpacht's critique of Spinoza's statements on international law hinges on the argument that they deviate from his general explanation of the mechanisms of law‐making. (shrink)

This paper argues that some widely used laws of implication are false, and arguments based upon them invalid. These laws are Exportation, Commutation, (as well as various restricted forms of these), Exported Syllogism and Disjunctive Syllogism. All these laws are false for the same reason – that they license the suppression or replacement in some position of some class of propositions which cannot legitimately be suppressed or replaced. These laws fail to preserve the property of (...) sufficiency of premiss set for conclusion. They are false, and can be seen to be false, independently of their respon- sibility for the paradoxes. Hence the main ‘independent’ argument for the paradoxes – that they follow from an allegedly immaculate set of laws – is undermined. Counterexamples to all these laws are produced. (shrink)

Laws of nature seem to take two forms. Fundamental physics discovers laws that hold without exception, ‘strict laws’, as they are sometimes called; even if some laws of fundamental physics are irreducibly probabilistic, the probabilistic relation is thought not to waver. In the nonfundamental, or special, sciences, matters differ. Laws of such sciences as psychology and economics hold only ceteris paribus – that is, when other things are equal. Sometimes events accord with these ceteris paribus (...) laws (c.p. laws, hereafter), but sometimes the laws are not manifest, as if they have somehow been placed in abeyance: the regular relation indicative of natural law can fail in circumstances where an analogous outcome would effectively refute the assertion of strict law. Many authors have questioned the supposed distinction between strict laws and c.p. laws. The brief against it comprises various considerations: from the complaint that c.p. clauses are void of meaning to the claim that, although understood well enough, they should appear in all law-statements. These two concerns, among others, are addressed in due course, but first, I venture a positive proposal. I contend that there is an important contrast between strict laws and c.p. laws, one that rests on an independent distinction between combinatorial and noncombinatorial nomic principles.2 Instantiations of certain properties, e.g., mass and charge, nomically produce individual forces, or more generally, causal influences,3 in accordance with noncombinatorial.. (shrink)

Current scholars generally view political obligations as "content independent." Citizens have moral reasons to obey the law because it is the law, rather than because of the content of different laws. However, this position is subject to criticism on both theoretical and practical grounds. The main consideration in favor of content independence, the so-called "self-image of the state," does not actually support it. Properly understood, the state's self-image is to comply with laws because of the underlying (...) moral reasons that justify them, rather than because they are laws. Because content independence has played a central role in the widespread belief that a suitable theory of political obligation is not possible, rejecting it allows the possibility of a theory that establishes moral requirements for virtually all citizens to behave in accordance with virtually all laws, although these requirements are particular to different laws, and subjects are not required to obey them because they are laws. (shrink)

In the first part of this paper, I argue against the view that laws of nature are contingent, by attacking a necessary condition for its truth within the framework of a conception of laws as relations between universals. I try to show that there is no independent reason to think that universals have an essence independent of their nomological properties. However, such a non-qualitative essence is required to make sense of the idea that different laws (...) link the same universals in different possible worlds. In the second part, I give a positive argument for the necessity of at least some laws of nature, by showing with the example of a paradigmatic law of association that it consists in an internal relation between two universals which are determinables of the same class of determinates, where this relation is essential to both. Furthermore, I show that the necessity of laws of association could be accommodated within David Lewis' Humean metaphysics, but that it is incompatible with David Armstrong's combinatorialism. (shrink)

This volume presents an extended version of the contributions presented at the workshop "Kant's Concept of Law" held at the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy (IVR) in 2013. It handles issues of applied legal philosophy in Kant's Doctrine of Right such as ownership, the alleged right of necessity, the right of resistance and the right of revolution. With each of these applied issues, the focus lies, on the one hand, on the (...) relationship between the principles a priori of law and of the duties of rights, as well as their normative requirements - for instance, the duty of independence from the coercion by others - and, on the other hand, empirical situations and their pressing demands. Thus, this volume illustrates how Kant concretely conceives of the doctrine of "first metaphysical of the doctrine of right" as supplying "the immutable principles for any giving of positive law". Each essay of this volume not only undertakes a careful and original interpretation of Kant's theses, but also offers a critical assessment. (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)

Francisco de Vitoria (c. 1485-1546) is well-known for his philosophical contributions to natural rights and international law. However, his extensive work on the conflict between civil authority and the authority of the Catholic Church has been largely neglected by political theorists and intellectual historians. While scholars have recently recognized the significant role played by natural law in the history of political secularism, they have focused almost exclusively on the “modern” natural law theories of Hobbes, Pufendorf, and Thomasius, as opposed to (...) the “scholastic” natural law of early modern Thomists like Vitoria. This essay undertakes an analysis of Vitoria’s use of natural law theory in his approach to civil-ecclesiastical conflict. Contrary to critiques from the “modern” natural lawyers, it argues that Vitoria’s idea of natural law spearheads a forceful defence of the autonomy of civil power from ecclesiastical power. Based on his sharp distinction between the natural and the supernatural spheres of human life, Vitoria argues for a “dualist” position in which civil and ecclesiastical powers are independent and equally binding on human consciences. The essay acknowledges that Vitoria’s dualism ultimately gives way to his endorsement of papal supremacy over all Christian princes. However, this papalist conclusion does not follow from Vitoria’s natural law theory but rather from an opposing political principle: the notion of the universal Christian commonwealth. (shrink)

In this book I have tried to develop an analysis of the concept of an empirical law, an analysis that differs in many ways from the alternative analyse's found in contemporary literature dealing with the subject. 1 am referring especially to two well-known views, viz. the regularity and necessity views, which have given rise to many interesting papers and books within the philosophy of science. In developing my own views, it very soon became clear to me that the mere restatement (...) of these alternative views, followed by a discussion of their defects and an explanation of my own view, would not suffice to show what 1 regard as basically unsound in these views. If we seriously consider the well-known difficulties facing the regularity view, we have to consider the possibility that the time has arrived to stop our attempts to solve, by means of patch-work additions, the fundamental problem of empirical laws within the traditional context of logical positivist doctrines. I have tried to find a solution which is based on a different philosophical context, the main incentive being that the discouraging results of the customary attempts to solve the problem might have been the outcome of the fundamental philosophical setting within which the problem had been formulated and within which everyone looked for a solution. The problem of empirical laws is not a problem existing by its own rights - it is shaped by an underlying point of view or theoretical framework. For this reason I have started with a brief sketch of the logical positivist context. However, I want to stress the fact that my intention was not to offer an historical exposition, but an exposition which becomes meaningful when related to the subsequent arguments concerning empirical laws. The notion of direct or theory-free observation has been taken as the fundamental characteristic of the logical positivist point of view. This view has been further characterised by means of five theses, among which is the thesis that observational terms are isolated or theory-independent units of extensional meaning. These terms are then supposed to be the starting-points of meaning and the end-points of confirmation, and these very characteristics mark the privileged position such terms have in a logical positivist philosophy. The post-positivist view, on the other hand, is characterised by the opposing notion of theory-loaded observation. This notion leads to other conclusions which radically oppose some of the theses of logical positivism. The notion of theory- loaded observation itself, although often clearly stated, has not yet been systematically elucidated, and I have made an attempt to do this in ch. I after my sketch of the logical positivist context. This seemed to me to be necessary in order to make my post-positivist point of view as clear as possible, before tackling the problem of empirical law itself. I have paid special attention to the lawlikeness of concepts and their confirmation and falsification. These epistemological issues are followed by a separate examination of Goodman's riddle in ch. II, because it lies somewhere between the lawlikeness of concepts and the lawlikeness of laws. If Goodman's riddle is taken as a serious problem, as I think it should, it is primarily a problem of concept or theory formation and not a problem of induction. In ch. III the regularity view has been examined and the well-known difficulties related to such a view are considered, assuming the knowledge gained in ch. I. This has led to some interesting results, especially in connection with the analysis of counterfactuals and the confirmation of 'normal' singular conditionals, to which I return in the last chapter. Three different views of the necessity view are briefly stated and investigated in ch. IV. RESCHER'S view is, I think, close to mine, which has been developed in ch. V. However, there are fundamental epistemological differences between our views. In the last chapter I have given my own analysis of the concept of an empirical law, which should not be taken as a synthesis of a regularity and a necessity view, but as opposed to both. It is, as far as particulars may count, the result of an analysis of the concepts 'regularity' and 'necessity'. I have tried to argue that the greatest shortcoming of the regularity view lies in the fact that the proponents of such a view have not been really concerned with the concept of 'regularity' itself. They usually take this concept to be intuitively clear enough to serve as basis for their analysis. Their attacks upon the necessity view are based on the reproach that 'necessity' is a very obscure concept, and that it should, therefore, be avoided in the philosophy of science. We could, however, reproach them in a similar way, since the concept of 'regularity' is anything but clear. One may say that an empirical law formulates a 'regularity in nature', but we can only do justice to the function a law has in science, if we are ready to view this regularity as a necessary connection, which does not exist in an observer-independent reality, but in a theoretically co-constituted empirical world. This investigation does not pretend to answer all questions concerning empirical laws. It should, therefore, not be regarded as complete, but neither should the arguments and suggestions be regarded as completely free from ambiguity. Much remains to be done in order to offer a generally acceptable theory and better understanding. (shrink)

THE opening paragraph of the Declaration of Independence invokes, as every American should know, "the Laws of Nature and of Nature’s God." The import of this invocation may be discerned by examining the appeals to natural law in the polemical literature of the American revolutionary period against the background of natural law/natural rights philosophy in the seventeenth and eighteenth centuries, on the one hand, and, on the other hand, within the particular historical context of events constituting the American Revolution. (...) The phrase "the Laws of Nature and of Nature’s God" in the Declaration is revealing. It simplifies what had, in earlier times, been referred to as "fundamental law," omitting and de-emphasizing, however, some rather essential elements. Historically, fundamental law had always been esteemed to be a law superior to statutory or positive law. Unless the latter conforms to the former, it is not valid, and invalid positive laws are null and void, so that there is no obligation to obey them. In the history of British jurisprudence, which includes colonial American jurisprudence, fundamental law embraced divine law, natural law, the British constitution beginning with Magna Carta, common law, and the colonial charters. Appeals to fundamental law were made when protesting statutory or positive laws and decrees. Thus the Declaration and Resolves of the First Continental Congress in October, 1774, invokes "the immutable laws of nature, the principles of the British constitution, and the several charters and compacts" as the moral, rational, and ultimate legal basis for protesting alleged British encroachments on American rights. Yet less than two years later, the Declaration of Independence, abandoning the British constitution and dissolving the political band—the charters and compacts—between Great Britain and America, rests simply on "the Laws of Nature and of Nature’s God.". (shrink)

The affinity which the English Leviathan evinces for Independency is the focus of Johann Sommerville's article. Among the links the author traces is a concern to stress that clergymen have no independent jurisdiction over the laity, in contrast to positions shared by Catholics, Presbyterians and Anglicans. But, Hobbes has no doubt that the Independents themselves were fanatics, prescribing religious duties that might conflict with those of the lawful sovereign. Independents also taught resistance to the sovereign, while it is a (...) key aspect of Hobbes's political theory to teach submission to political authority. To summarize, while Leviathan agrees with the Independents in rejecting divine right theories of church government, it cannot be read as a defense of Independent thinking in general. (shrink)

Based on a non-cognitivist meta-ethical position and an anti-subjectivist concept of “reality”, Hägerström questioned the pretension of traditional legal theory, especially legal positivism, to be a science of law, because the entities to which it refers are not real. Olivecrona succeeded in pursuing such a thesis while he tempered it. Taking a socio-psychological approach, he offered a realistic theory of law which is able to emphasize psychical and linguistic phenomena lying at the root of our ideas of rights and (...) duties, which determine what functions they serve in society and how they affect our conduct. (shrink)

Without extending the historical analysis, this article analyzes the relationship between the legal concept of person with regard to the notion of living independently. The concept is normatively established in Article 19 of the CRPD and is presented as a legal fiction. The legal technique of fictio iuris is the premise for analyzing contemporary problems, for example, the attribution of responsibilities to non-human personalities, such as robots. The article, however, develops the problem of attributing rights to persons with disabilities. The (...) contraposition of robots and disabled people, understood as opposing visions of anthropological and human models, is part of the philosophical dispute between humanism and post- or transhumanism. The conception of man appears different if created in the image and likeness of God, or as the fruit of evolution from primates, or as a transhumanist entity that can be replaced by the robot. The latter vision is rooted in the mechanization of the mind triggered by cybernetics and cognitive sciences and referable to problems of justice theory and political philosophy concerning the inclusion in society of disabled people. In this article I will limit myself to analyzing, against the background of this complex problem, the link between person, legal fiction and the right to disability starting from the criticism addressed by Nussbaum to Rawls based on the convention and following the methodology developed by Marchisio and Curto in order to clarify the legal connection between thirdness, disability, and person.However, I go one step further by including the issue of disability as justice within the evolution of the notion of the legal person, through the inclusion of fictio iuris and rhetorical methodology in positive law, as a criterion for the interpretation of art. 19 CRPD. (shrink)

The paper explores the role and meaning of maṣlaḥa and its possible appropriation in the field of Islamic legal and economic thought, as laid down by various medieval and contemporary Muslim scholars. Questions that are pertinent to the research are the following: how has maṣlaḥa been incorporated in legal reasoning and what kind of meaning does it convey; what type of economic reading does it presuppose; do ethics, law, and scriptural sources play equally important role as reference in developing the (...) concept in economic terms, are some of the questions that this paper will try to provide answer to. Further, as there is a tendency to believe that Islamic economic thought cannot be equated only with legal and juridical underpinnings, it is pertinent to pose a question if economic ideas have flourished independently from its legal framework. Maṣlaḥa in its capacity has always remained part and parcel of Islamic legal theory, and has been rarely addressed within the frame of economic thought; therefore a new reading is required to deal with the position of economic teachings within Islamic tradition. The paper consists of three sections, whereby the contributions made by Muslim medieval scholars on Islamic economics will be presented. The first chapter provides a historical overview of Islamic law and the concept of maṣlaḥa in relation to the field of Islamic economics, including Abu Hamid al-Ghazali’s monumental Iḥya ‘ulūm al dīn, which presents a milestone in converging Sufi ethical teachings of Islam in accordance with the legal methodology of Islamic law. The second part aims to discern and examine the economic jurisprudence and economic theory in Islam as it is understood by some of the mainstream theoreticians of Islamic studies, advocating the view that Islamic economics is inextricably related to the gist of Islamic legal reasoning. In this section the ideas of Muhammad Baqr al-Sadr will be presented as he proposes a new reading of Islamic economics as a doctrine and not a science. The third part questions Islamic legal establishment and its normativity, the claim that legal norms have always been part of the Islamic economic reasoning. This claim rests upon the idea that Islamic legal patterns were also socially constructed, including some aspects of Islamic economic reasoning. Concluding remarks will draw upon the idea that despite the fact that Islamic legal and economic literature are based upon the religious scriptures of Islam, the Qur’an and Tradition, it is more appropriate to claim that they rest upon the ethical cosmology that surpasses purely theological concerns. (shrink)

The last half-century has seen a steady loss of confidence in the defensibility of a duty to obey the law — even a qualified, pro tanto duty to obey the laws of a just or nearly just state. Over roughly the same period, there has been increasing interest in virtue ethics as an alternative to the dominant consequentialist and deontological approaches to normative ethics. Curiously, these two tendencies have so far only just barely linked up. Although there has been (...) discussion of the question whether patriotism should be considered a virtue, and abstract discussion about the virtuous person’s relation to authority and justice in general, there has been little virtue-oriented discussion having specific reference to the kinds of difficulties that have motivated the ascendant skepticism about political obligation. This silence has persisted despite repeated calls for renewed work on “virtue politics”. This article proposes and defends a preliminary account of law-abidance (as contrasted to obedience) as a virtue. It argues that a virtue-theoretic account of our relation to the law offers advantages that are not contingent upon the independence or priority of the virtues with respect to consequentialist and deontological components of a complete moral theory. Chief among these advantages is the promise of an alternative to the deadlocked positions taken by apologists for the duty to obey the law and their philosophical-anarchist critics — positions which have tacitly been assumed to exhaust the viable possibilities. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:The Light that Binds: A Study in Thomas Aquinas's Metaphysics of the Natural Law by Stephen BrockAngel Perez-LopezThe Light that Binds: A Study in Thomas Aquinas's Metaphysics of the Natural Law by Stephen Brock (Eugene, OR: Pickwick, 2020), xv + 277 pp.How does the natural law fit the definition of law? Opinions clash among different interpreters of Saint Thomas Aquinas. Stephen Brock's book provides both a magisterial and (...) a definitive answer to this question.Like fine wine, this book has been fermenting and maturing for almost thirty years. Originally a doctoral dissertation, this recently published work has been rewritten, and to a certain extent, reworked by the author with respect to some of its content.Without disregard for nuances, the first chapter introduces the reader to four different groups of Aquinas's interpreters. The first two groups question the full legal character of the natural law in its dependence to the eternal law. The third one questions its naturalness. The fourth group, instead, upholds both the divine origin of the natural law's full legality in its dependence on the eternal law, as well as its natural character.Brock places Dom Odo Lottin, Wolfgang Kluxen, Germain Grisez, and John Finnis in the first group. They maintain that the natural law is a law only in a qualified sense and that it does not entirely fulfill the definition of law. The natural law would provide an intrinsic morality. It should be treated independently from the eternal law. The second group is composed by authors such as Frederick Copleston, Alan Donagan, or Gregory Stevens. Similar to the first group, they argue that the natural law is an autonomous self-standing law, legislated by human reason. Thus, it should be treated independently from the eternal law, except to point out its ultimate origin.The author who exemplifies the third position is Ernest Fortin. Reacting against Finnis, Fortin's position jeopardizes the natural character of the natural law. In his view, the legal force of the first principles of practical reason is not fully actualized until one recognizes the divine institution sanctioning them. [End Page 981]All the authors of the fourth group uphold that the natural law is fully a law on account of its divine origin and that it is also entirely natural insofar as it is naturally known by human reason. Herein Brock places commentators of Saint Thomas such as Francisco Suarez, Dominic Farrell, Lawrence Dewan, and himself. He also includes in this last group other philosophers such as G. E. M. Anscombe and Peter Geach. In the course of his whole study, Brock shows how Aquinas's true position differs from the other members of this group. Special attention is given to the differences between Aquinas's true mind and the interpretations offered by Suarez, Farrell, and, to a certain degree, even by Dewan. In order to better appreciate the depth of this process, I have found it very helpful to read Farrell's The Natural Law According to Aquinas and Suarez in conjunction with Brock's work.The second chapter targets the natural law's legal character in its dependence to the eternal law. It proves that Thomas provides a strict definition of the natural law when he says that it is nothing but a participation of the eternal law in the rational creature. This chapter opens with a historical study concerning the influence of the Summa Fratri Alexandri in the Summa theologiae (ST). Aquinas's understanding of the dependence of the natural law on the eternal law turns out to be more systematic and refined. It is based on a fuller comprehension and development of what law is (the ratio legis).The remainder of the second chapter consists in a superb commentary regarding ST, I-II, q. 91, a. 2, on whether something existing in man is fit to be called a natural law. Promulgation is the element of the definition of law that specifies the different kinds of laws. Hence, the natural law is differentiated from the others by its natural promulgation, namely, by the act through which the order of the eternal law (already instituted by God... (shrink)

Hegelian ethics, which gives pride of place to the roles and relations that give substance to our moral life, is seen as a rejection of Kant's a priori treatment of morality, moral law and moral agency. Analysis of the so-called religious writings from the late 1790s to the early 1800s, 'The Positivity of the Christian Religion', the 'Love' fragment, and the essay 'On the Scientific Treatment of Natural Law', shows Hegel engaging profoundly with recognizably Kantian problems of moral metaphysics about (...) moral agency, the moral law, nature and freedom. The almost experimental approach of these early pieces yields independently interesting results as well as offering an important insight into the development of Hegel's thought. (shrink)

The paper explores the role and meaning of maṣlaḥa and its possible appropriation in the field of Islamic legal and economic thought, as laid down by various medieval and contemporary Muslim scholars. Questions that are pertinent to the research are the following: how has maṣlaḥa been incorporated in legal reasoning and what kind of meaning does it convey; what type of economic reading does it presuppose; do ethics, law, and scriptural sources play equally important role as reference in developing the (...) concept in economic terms, are some of the questions that this paper will try to provide answer to. Further, as there is a tendency to believe that Islamic economic thought cannot be equated only with legal and juridical underpinnings, it is pertinent to pose a question if economic ideas have flourished independently from its legal framework. Maṣlaḥa in its capacity has always remained part and parcel of Islamic legal theory, and has been rarely addressed within the frame of economic thought; therefore a new reading is required to deal with the position of economic teachings within Islamic tradition. The paper consists of three sections, whereby the contributions made by Muslim medieval scholars on Islamic economics will be presented. The first chapter provides a historical overview of Islamic law and the concept of maṣlaḥa in relation to the field of Islamic economics, including Abu Hamid al-Ghazali’s monumental Iḥya ‘ulūm al dīn, which presents a milestone in converging Sufi ethical teachings of Islam in accordance with the legal methodology of Islamic law. The second part aims to discern and examine the economic jurisprudence and economic theory in Islam as it is understood by some of the mainstream theoreticians of Islamic studies, advocating the view that Islamic economics is inextricably related to the gist of Islamic legal reasoning. In this section the ideas of Muhammad Baqr al-Sadr will be presented as he proposes a new reading of Islamic economics as a doctrine and not a science. The third part questions Islamic legal establishment and its normativity, the claim that legal norms have always been part of the Islamic economic reasoning. This claim rests upon the idea that Islamic legal patterns were also socially constructed, including some aspects of Islamic economic reasoning. Concluding remarks will draw upon the idea that despite the fact that Islamic legal and economic literature are based upon the religious scriptures of Islam, the Qur’an and Tradition, it is more appropriate to claim that they rest upon the ethical cosmology that surpasses purely theological concerns. (shrink)

In this article, we examine the factors determining the representation of women on boards of directors by considering three main questions. The first question deals with the relationship between characteristics of ownership and governance on one side, and female directorship on the other. The second major question concerns the demographic attributes of women directors, such as nationality, foreign experience, educational level, business expertise, and connections to external sources. The third important question refers to women in senior positions on French boards (...) (e.g., as independent members or board subcommittee members) in relation to firm characteristics and women’s demographic attributes. Our study focuses on French large- and mid-capitalized companies belonging to the SBF120 stock market index during a 5-year period running from 2000 to 2004. First, our results give evidence that the appointment of women directors is strongly related to family ownership and board or firm size. Second, the appointment of women directors is related to their professional services, valuable skills, and network links. Furthermore, we show that women face a double glass-ceiling problem, and note that French firms rely more on the demographic attributes of their women directors when they are appointed to senior board positions. Our study sheds light on issues concerning the law that comes into force in 2016, which imposes quotas of women members on boards of directors in French companies. (shrink)

Kainz’s handling of natural law thinking in ancient Greece and Rome is precise, for although he uses as his chapter heading “Concepts of Natural Law in Ancient Greece and Rome,” he is careful not to ascribe explicit natural law thinking to the Presocratics, Plato, or Aristotle, though in the case of the latter two thinkers, especially Aristotle, they were arguing for what is the essence of natural law thinking: an eternal, unchanging, absolute standard for human conduct. Kainz does use the (...) caption, “Natural Law and Natural Justice in Aristotle”, but he qualifies it: “it is conceivable that natural human sociability itself constitutes a significant element of a latent natural law theory in Aristotle [but]... explicitly Aristotle neither enunciates nor expands on any natural law theory in the traditional sense”. This parsing is prudential since, if a thinker does not explicitly refer to a theory or position, it is not correct to say that he holds it. But when it comes to the Stoics, there is no need to temporize, as they were explicit, full-fledged natural law theorists. Kainz appropriately accords them the attention they deserve. It is remarkable to find overviews of natural law that omit the Stoics entirely. Chapters 2 and 3 reveal the bridge from natural law, as treated by Aquinas and Suarez, seen as part of divine law, to the secularization of natural law theory at the hands of Grotius and Hobbes. Although acknowledging that earlier thinkers like Robert Bellarmine and other scholastics had adverted to the possible validity of natural law without God, Kainz limns Grotius’s bold assertion of the independence of the natural law theory from any grounding in theological or religious premises as the decisive proclamation of the secularization of the natural law theory. Kainz’s discussion of Aquinas includes the very important question of whether Aquinas is “actually ‘deriving’ moral laws from natural inclinations—thus falling into the ‘naturalistic’ fallacy”? He puts that question to rest with the observation that Aquinas does not suppose that any deductions from natural law principles rely on the necessity used in theoretical reasoning but rather apply “for the most part” and thus have exceptions. Chapter 4 provides a glossary of frequently misunderstood concepts that are basic in natural law discussions, such as “nature,” “natural,” and “perversion.”. (shrink)

This article shows that the conspicuous and consistent idiosyncrasy of Grotius's Biblical interpretation is an important part of his revolutionary effort to secularize natural law. In De iure praedae and related works, Grotius systematically deployed a range of exegetical techniques in order to demonstrate that the Bible, like all texts, is open to multiple interpretations and susceptible to hijacking by rival agendas. This strategy aimed to render the Bible inadmissible as evidence in legal disputes and political legitimacy claims. The consistent (...) instrumentality of Grotius's use of the Bible in IPC cannot be dismissed as mere legalistic opportunism or described as an atheistic move. Rather, Grotius's exegetical strategy was motivated by pacifism and a desire to protect religion from politicization. The article positions this secularization strategy in the intellectual environment of the Leiden Circle, and shows how competing Catholic, Calvinist, and Mennonite political readings of the same key biblical passages during the Dutch-Iberian conflict provided the immediate occasion for writing IPC. In order to construct a natural law theory that was independent from, and therefore acceptable to, all religious sides, it was necessary to ensure that the Bible have no final word in law or politics, lest its invocation link disagreements to belief and thereby render them impossible to resolve. (shrink)

In “Function and Concept” and “On Concept and Object”, Frege argued that certain differences between dependent and independent meanings were inviolable and “founded deep in the nature of things” but, in those articles, he was not explicit about the actual consequences of violating such differences. However, since by creating a law that permitted one to pass from a concept to its extension, he himself mixed dependent and independent meanings, we are in a position to study some of (...) the actual consequences of his having done so. To make certain of Frege’s ideas about the inviolability of logical form more tangible, I describe a string of very interrelated consequences that his attempt to transform dependent meanings into independent meanings actually brought in its wake. (shrink)

This chapter contains sections titled: The Prima Facie Duty to Obey: A Brief History Implications of Catechistic Metaethics for the Duty of Obedience Implications of Commonalist Metaethics for the Duty of Obedience Conclusion References.

This chapter considers whether legal requirements can constitute reasons for action independently of the merits of the requirement at hand. While jurisprudential opinion on this question is far from uniform, sceptical views are becoming increasingly dominant. Such views typically contend that, while the law can be indicative of pre-existing reasons, or can trigger pre-existing reasons into operation, it cannot constitute new reasons. This chapter offers support to a somewhat less sceptical position, according to which the fact that a legal (...) requirement has been issued can be a reason for action, yet one that is underpinned by bedrock values which law is apt to serve. Notions discussed here include a value-based conception of reasons as facts ; a distinction between complete and incomplete reasons ; and David Enoch’s idea of triggering reason-giving. Following a discussion of criticism against the view adopted here, the chapter concludes by considering some more ‘robust’ conceptions of law’s reason-giving capacity. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Relationship between Theology and Canon Law: Another Context of Political Thought in the Early Fourteenth CenturyTakashi ShogimenPolitical thought and ecclesiology in the early fourteenth century have often been assessed as a series of responses to the question of the relationship between church and state. The conflict between Pope Boniface VIII and Philippe IV at the turn of the thirteenth and fourteenth centuries acutely demonstrated the conflict between the (...) spiritual and temporal powers. The conflict between Pope John XXII and the claimant to the imperial throne, Ludwig of Bavaria, also seems to have formed the historical background against which contemporary intellectuals expounded their political and ecclesiological thought. Two recent excellent textbooks on medieval political thought discussed the early fourteenth century from such a perspective and situated Marsilius of Padua and William of Ockham, along with their papalist adversaries, in this context. 1It is indeed a fair treatment of the period; however, it is not the only legitimate perspective. For instance, an alternative perspective can be developed through an examination of the Poverty Controversy between Pope John XXII and the Franciscans. This dogmatic dispute over the question of whether Christ and the apostles did not own anything individually or communally had a political dimension: it involved discussions on the nature of papal power over the church and resulted in the refinement of the idea of natural rights. 2 The dichotomy [End Page 417] between the papal and imperial camps can also mislead historical interpretation if the fact that each camp was not monolithic is overlooked. Just as Marsilius and Ockham embraced different political views in the alleged imperial camp, so the alleged papal ideologists did not always share the same views. It has even been argued that the doctrines propounded by “papalists” and “anti-papalists” were not irreconcilable but differed only in emphasis. 3 It is easy to see that the problem of Church and State is not the all-embracing concern of the period.What, then, are the possible benchmarks against which we can evaluate the political views of contemporary thinkers? This paper is intended to suggest that there is another context against which political thought and ecclesiology in the early fourteenth century may be assessed: that is, the relationship between theology and canon law. The contemporary polemicists’ view on the role that theology and canon law should play in an ecclesiastical dispute such as the Poverty Controversy largely determined their political or ecclesiological perspectives. To show this, I should like to compare, in the context of the poverty dispute, the ecclesiological views of two theologians in the so-called “papalist” and “anti-papalist” camps respectively: Guido Terreni and John Baconthorpe on the one hand, and William of Ockham and Michael of Cesena on the other. The comparison between Terreni and Baconthorpe will elucidate clearly that their contrasting attitude toward the role of canon law in contemporary ecclesiastical disputes determined the paradigms of their ecclesiologies, resulting in two entirely different ecclesiologies, save the fact that they were both aimed at defending the position of Pope John XXII on Franciscan poverty. The comparison between Ockham and Michael of Cesena will reveal how their contrasting views on the nature of the Poverty Controversy—theological or canonistic—determined not only the pattern of their defense of the Franciscan doctrine of poverty but also the development of their polemics.The relationship between theology and canon law had been a perennial problem ever since the latter had grown into an independent discipline. Scholastic theologians in the thirteenth century were critical of canon law studies. Bonaventure, for example, affirmed theology’s superiority over canon law: he wrote that theology questioned propter quid, whereas canon law enquired into [End Page 418] quia. Bonaventure, following Aristotle, asserted that there are higher and lower sciences, and what for the higher science, theology, is the conclusion of its enquiry is for the lower science, canon law, its starting point. 4 Thomas Aquinas considered that the intrusion of the decretalists into theological matters was disagreeable and ridiculous, 5 as did Roger Bacon. 6 These theologians’ comments testify to the antagonism between theologians and canonists in the thirteenth century. Lawyers, too, were fully aware of this situation, as seen... (shrink)

Guided by the example of gauge transformations associated with classical Yang-Mills fields, a very general class of transformations is considered. The explicit representation of these transformations involves not only the independent and the dependent field variables, but also a set of position-dependent parameters together with their first derivatives. The stipulation that an action integral associated with the field variables be invariant under such transformations gives rise to a set of three conditions involving the Lagrangian and its derivatives, together (...) with derivatives of the functions that define the transformations. These invariance identities constitute an extension of the classical theorem of Noether to general transformations of this kind. An application to the case of gauge fields demonstrates the existence of two distinct types of conservation laws for such fields. (shrink)

One of the most significant economic challenges faced by people with disabilities in Turkey and globally is employment. Unfortunately, even in developed countries, the desired level of employment of the disabled individuals has not yet been measured up. The fundamental rights and freedoms of employment and labor have gained a basis of legitimacy through certain principles within the legal system throughout human history. As a matter of fact, in the main references of Islamic law, the principles of justice, rights, equality (...) of opportunity, merit, anti-discrimination, and social responsibility for all people in general and disabled people in particular have been a reference in the development of employment policies. In this regard, the main objective of Islamic economic policies has been determined as ensuring the happiness of the individual in this world and the hereafter since the early period. The study first includes active and passive employment models developed in modern legal systems. It can be stated in this framework that from the early period, both in the practices of the Prophet Muhammad and the Companions and in the later Islamic societies, institutionalization was provided according to the characteristics of the period in which disabled individuals were actively and passively employed, and it can be stated that the developments regarding the employment of disabled individuals in Islamic societies started much earlier than expected. However, we must admit that legal regulations in the modern sense were introduced later compared to the West. The study focuses on the phenomenon of disability, the problems and needs of the disabled, and the studies on employment in Islamic societies from the past to the present. It is determined that many disabled people in Islamic society are actively employed in state positions ranging from imam to judge, from commander to governor according to their abilities, and the disabled people who cannot be employed are compensated for their disadvantages through passive employment methods such as health, care, housing, salary binding, and tax reduction. Determining the principles of employment of disabled according to Islamic law is the main subject of the study, and it has been established that maslahah, custom, siyasa shar’iyya, merit, and sedd-i zerâi constitute the jurisprudential basis of the employment of the disabled in Islamic law. In this framework, it has been stated that the principle of maslahah plays a key role in the development of social responsibility policies, in resolving issues that are not included in verses and hadiths and furû fiqh acquis, in gaining the economic independence of disabled and ensuring the minimum standard of living. Maslahah is also beneficial for the individual, family, society and the state, too. It has been pointed out that the employment of disabled people has become one of the most significant matters of both national and international legal regulations today, and it has been determined that the employment of disabled people has transformed into customary practices in accordance with the criteria of being a source of Islamic law. In Islamic administrative law, active and passive employment policies, legal regulations, and institutional structures related to disabled are carried out by the authority delegated to public administrators under the siyasa shar'iyya. It has been emphasized that administrative and public service appointments in Islamic law are ordered to be made on the basis of merit, that nepotism and favoritism are prohibited, and that disability is not an obstacle to employment. In conclusion, the insufficiency of studies on employment of people with disabilities in Islamic law has been pointed out and it has been suggested that further studies should be carried out on these subjects and exploitation of disability according to Islamic law should be studied. (shrink)

Kant has made an attempt in his Doctrine of Law to show that the principles of natural Law are a priori principles of pure practical reason. He considers this a necessary step towards establishing the obligating force of positive legislation within a legal system. It is not obvious, however, that Law, which recognizes external coercion as a possible incentive for the compliance with its duties, can be reconciled with pure practical reason, which through the categorical imperative commands that one fulfill (...) duty from the idea of duty and so independently of inclination. Accordingly, it is not clear that there is a systematic and necessary connection between Law and morality for Kant and that he has succeeded in his overall objective of justifying positive Law. ;My dissertation is concerned with the question of how, according to Kant, pure practical reason can allow for juridical legislation, a legislation which admits of an incentive other than the idea of duty for the fulfillment of certain duties. I present criticisms of interpretations according to which Law with its external character cannot be reconciled with morality for Kant. I also discuss some interpretations according to which Law with its duties and legislation is justifiable from the point of view of pure practical reason, either as directly derivable from the categorical imperative or as a means for the realization and protection of the individual's moral freedom. I argue that such accounts do not succeed in explaining the possibility of external coercion for pure practical reason. I do maintain, however, that Law is reconcilable with pure practical reason for Kant, and I offer an explanation of how this is so: an examination of the different classes of duties shows that only juridical duties, or perfect duties to others, are such that reason must recongnize for them a kind of constraint other than free self-constraint and therefore must acknowledge the possibility of juridical legislation for these duties. (shrink)

This paper offers two related things. First, a theory of singular causal statements attributing causal responsibility for a particular harm to a particular agent based on the conjunction of a positive condition (necessitation) and a negative condition (avoidability) which captures the notions of sufficiency and necessity in intuitive ideas about agent causation better than traditional conditio sine qua non based theories. Second, a theory of representation of causal issues in the law. The conceptual framework is that of Game Trees and (...) Games in Extensive Form. Causal conditions are defined set-theoretically over Game Trees; causal issues and fundamental distinctions (dependent versus independent intervening causes, foreseeability or not of harm etc.) arising in legal cases are accommodated by the device of a probability distribution over the game-tree representation of cases. (shrink)

To understand the distinctive characteristics of the institutions of law, one needs to understand the idea of law. Understanding the nature of law is not ultimately a matter of achieving a careful description of social practices but a matter of grasping the idea towards which those practices must be understood as oriented. The idea of law is the focal point that enables us to make coherent sense of the otherwise diverse features of practice, but it is not itself a matter (...) of observable practice. It resembles a notional point in space that enables us to grasp the relationship between various parts of a complex drawing, although in itself it forms no part of the drawing. But how is such an idea to be investigated? We expect a clear understanding of the idea of law to explain our settled understandings about what will and will not count as an instance of legal ordering. We expect it, in other words, to explain some at least of the minimum conditions for applicability of the idea. But, since the idea of law is invoked within the practices of law, we also expect a philosophical understanding of that idea to clarify its role in guiding and orienting practice, and not simply in describing practice. Although the practices of law are oriented towards the idea of law, that idea is not straightforwardly available to be read in the surface appearance of the practices. For such practices, while involving systematic appeal to the idea of law, operate for the most part on the basis of that unreflective conformity that assists the stable functioning of most human institutions. Can we begin by identifying a "minimum specification" of the concept of law, in the form of a set of conditions without which nothing could count as law at all? From such a minimum specification, can we proceed in some orderly and intellectually defensible way towards "later phases" of the concept, with their "qualitative changes as well as additions and complications"? The possibility is worth exploring, however unfashionable may be the philosophical viewpoint from which it springs. Fuller's famous story of Rex, and his failed attempts to enact law, identifies the minimum conditions that something must satisfy in order to count as an instance of law. Fuller's theory becomes interesting when he proceeds to demonstrate that the eight desiderata (identified as minimum conditions), when taken collectively, be regarded as a guiding ideal for legal thought: the ideal that we usually label "the rule of law". Fuller claimed that his eight requirements represent an "inner morality of law". Hart's critique of Fuller appeared to suggest that the moral value of compliance with the eight requirements is wholly contingent upon the law's content, and that the eight requirements are more akin to precepts of efficiency than to moral standards. This criticism has been widely endorsed as correct. In fact, the criticism is not correct. The eight requirements are not principles of efficacy, but (when taken together) represent a moral ideal for legal systems. Fuller never really succeeded in giving a clear explanation of the moral status of his eight requirements. I argue that Fuller's eight desiderata represent an intrinsically moral ideal that we may call "freedom as independence from the power of another". This is the aspect of freedom that distinguishes the slave from the free man. My theory seeks to establish the existence of a very tight and necessary connection between law and morality. Positivists will find it impossible to deny that governance by law involves some degree of compliance with Fuller's eight requirements, and that such compliance necessarily involves the realisation of some degree of freedom as independence. If they are tempted to deny that freedom as independence is a distinct aspect of freedom, they must also argue that connections between slavery and the lack of freedom are purely contingent. If they accept that the lack of freedom as independece is what makes a slave a slave, but they deny that freedom as indepenence is a moral value, they must say that there is nothing intrinsically morally wrong with slavery: the moral wrongness of slavery would then have to be seen as stemming from purely contingent features of the slave's position. The value of freedom as independence may be thin. But it is real, it is genuinely valuable, and it is tightly connected to the existence of law. (shrink)

This book advocates dispositional essentialism, the view that natural properties have dispositional essences.1 So, for example, the essence of the property of being negatively charged is to be disposed to attract positively charged objects. From this fact it follows that it is a law that all negatively charged objects will attract positively 10 charged objects; and indeed that this law is metaphysically necessary. Since the identity of the property of being negatively charged is determined by its being related in a (...) certain way to the property of being positively charged, in any world in which these properties exist they must be related so that all negatively charged objects attract positively charged objects. 15 Bird opposes his dispositional essentialism to the view that properties are categorical in nature, with their identities grounded in quiddities that are not exhausted by their relations to other properties. The main exponents of this view are D.M. Armstrong and David Lewis. They take the laws of nature to be contingent though they entertain very different views about their nature: Armstrong is a necessitarian 20 about laws, taking them to be relations of nomic necessitation between universals, while Lewis is a Humean about laws who takes them to be a special kind of regularity. The book is a sustained defence of the dispositional essentialist conception of properties and laws against the competing conceptions espoused by Armstrong and Lewis. One rough way to characterize the difference between these conceptions is to say that 25 the categoricalist sees properties as passive and inert with the laws of nature being fixed independently of the nature of properties whereas, in contrast, the dispositional essentialist sees properties as active potencies from which the laws of nature automatically spring. A slightly more tendentious way to express the difference is to say, as Bird does, that the categoricalist views embrace the Humean doctrine that there are no 30 necessary connexions in nature, while the dispositional essentialist view, on the other hand, repudiates this doctrine.. (shrink)

The two purposes of this essay. The general philosophical problem with most versions of social libertarianism and how this essay will proceed. The specific problem with liberty explained by a thought-experiment. The positive and abstract theory of interpersonal liberty-in-itself as ‘the absence of interpersonal initiated constraints on want-satisfaction’, for short ‘no initiated impositions’. The individualistic liberty-maximisation theory solves the problems of clashes, defences, and rectifications without entailing interpersonal utility comparisons or libertarian consequentialism. The practical implications of instantiating liberty: three rules (...) of liberty-in-practice, 1) initial ultimate control of one’s body, 2) initial ultimate control of one’s used resources, 3) consensual interpersonal interactions and resource transfers. These rules are economically efficient and maximise general want-satisfaction. Private property and legal remedies are additional practical institutional aspects, but to which ‘initiated impositions’ then apply prima facie. Libertarian law is often mistaken for complete libertarianism. Moral explanations are a separate issue. The three main moral theories imply libertarianism, but it can be morally posited independently of them. Critical rationalism and its application. No empirical or argumentative support for theories. An important ambiguity with ‘justification’. How the epistemology applies to the theory of liberty and its application but remains separable in principle. Conclusion: there are further published explanations but this should be enough to generate useful criticism. Appendix replying to some typical comments. (shrink)

The article analyzes the phenomenon of national self-determination in terms of evolution and functioning. The authors aim to determine the general characteristics and evolution of this phenomenon in both conceptual and applied versions. In the evolution’s context of national self-determination as a theoretical concept and a political and legal principle, several stages were identified and considered. According to the authors, each stage of the phenomenon’s evolution was inevitably accompanied by its qualitative transformations, both in political and legal terms. The first (...) stage (from the end of the XVIII c. till the First World War), according to the authors, is characterized by the emergence of the idea and the formation of the socio-political concept of national self-determination, and the applied aspect of the phenomenon of national self-determination is filled with concrete content based on the ever-expanding political practice of its application. The second stage (from the First World War and the post-war reconstruction) is characterized by the transformation of self-determination from a concept into a political principle. The authors associate the third stage of the evolution of the phenomenon of national self-determination (the period after the Second World War) with the development of international relations and the formation of a global bipolar system. National self-determination turned into a principle of positive international law and laid the foundations for the future political instability of the newly independent states. Finally, the last period (the early 90s to this day) is characterized by the search and crystallization of new approaches to the principle of national self-determination and the emergence of new theories, the authors of which are trying from a political and legal point of view to substantiate the legitimacy of an expansive interpretation of this principle. The analysis allowed us to conclude that the qualitative transformations of the principle of national self-determination presented in the article did not lead to the formation of the phenomenon of national self-determination as an integral, complete, and universally recognized international political and legal norm. (shrink)

The law commonly conceived as a norm : deficiency of this conception -- On some general hints of this deficiency, and in particular those evinced by the likely origin of the current definitions of law -- The need to distinguish the distinct legal norms from the legal order considered as a whole. The logical impossibility of defining the legal order as a set of norms -- How the unity of a legal order has been sometimes intuited -- How a legal (...) order is not only a set of norms, as it also encompasses other elements -- How such ements are implicitly postulated by the common inquiry into the distinguishing characteristics of law -- Assessment, from this point of view, of the so-called objectivity of law -- The element of sanction -- The expression "the legal order" -- The essential elements of the concept of law. The law as an institution and the law as a precept -- The preceding doctrine on the concept of institution -- My concept of institution and its fundamental characteristics : 1. The objective existence of the institution; 2. Institution and social body; 3. The institution's selfness; 4. The unity of the institution -- Equivalence of the concept of institution and the concept of a legal order -- Evidence for this equivalence based on the doctrine that the law is only "form" -- Mention of some problems that need solving in the light of this equivalence -- Cases in which the original establishment of a law does not depend on norms, but on the emergence of an institution, and the impossibility of reducing the institution to the norms -- The concept of institution and the international legal order -- The institution and the legal relationship: relationships between more persons -- Relationships between persons and things : examples of some of these relationships that, considered more broadly, cab be portrayed as institutions -- The institution and the legal person -- My conception of the law with respect to certain problems relating to : 1. The legal character of state power; 2. The extension of the state personality; 3. The legal relevance of its territory and citizenry -- Critical assessment of some opinions that attach importance to the legal order only insofar as it reflect relationships between persons. Applications to: 1. The legal sanction; 2. The state territory and citizenship; 3. The state bodies; 4. The limits of the legislative function -- Some consequences of my conception with regard to the subjective aspect of the law: the legal relationship; the status of persons; rights in rem; the correlation between rights and obligations; the equal position of subjects -- Recapitulatory remarks -- The plurality of legal orders and the doctrine that reduces all law to state law -- The untenability of this doctrine from a historical and theoretical point of view -- Its untenability with respect to the existing law -- Non-state legal orders; international law -- Ecclesiastical law -- The order of entities that are considered unlawful or are ignored by the state -- Entities that are regulated by the state, but also have an order of their own which is not recognized by the state (private disciplinary orders; the internal organisation of workplaces; so-called unrecognized associations or institutions, etc.) -- Doctrines that confine the concept of a legal order to the order of communities in general and specifically to necessary communities -- The relations between different legal orders. Principles that have to be taken into account with respect to : 1. Original or derivative institutions; 2. The particular or general ends of institutions; 3. Their diverse basis; 4. Simple or complex institutions; 5. Perfect or imperfect; 6. With or without personality; 7. Independent, coordinated or subordinated -- The concept of relevance of one order to another -- The title for this relevance: a. The relation of superiority and correlative dependence between two orders; b. The relation whereby an order presupposes another; c. The relation whereby reciprocally independent orders depend a further one; d. The relevance unilaterally attributed by an order to another on which it depends; e. The relation of succession between orders -- Diverse aspects (existence, content, effectiveness) expressing the relevance an order to another one. Cases in which the existence of an order depends on another: a. Complete subordination of the former to the latter which directly establishes the former or assigns limited autonomy to it. Independence, as far as its existence is concerned, of an order in case of a less expansive subordination (some spheres of the order of the states of a federal state vis-à-vis the latter; the order of states vis-à-vis international law) and general principles; b. In the hypothesis of an order that represents the presupposition of another (state law vis-à-vis international law) -- The relevance of an order to another with respect to its content. Various cases: a. The superior order as the mediated or unmediated source of an inferior order; the superior order (international law, ecclesiastical concordats) which is not the source, and yet affects the content of inferior orders; b. the Superior order about effects the content of more orders subjected to, which however are independent from each other; c. the order of that itself that determines its own content by considering a subjected or independent order : private international law; ecclesiastical law as it refers to civil laws; the law of the state that refers to ecclesiastical law; d. an order that incorporates another -- The relevance of an order to one another with respect to its effects: external and internal effectiveness of an order. Various cases of external effectiveness: a. The relationships between orders where the one partially or totally depends on the other; b. Relationships between more orders that are independent from each other because of a unilateral disposition of one or each of them. Private international law; civil effectiveness of ecclesiastical law; c. Relationships meeting more orders in which one is of the presupposition of the other; d. Relationships between orders that succeed each other -- Diverse extension of the relevance of an order to another. Applications with regard to the problem of so-called natural obligations -- The irrelevance of an order to another; total or partial, reciprocal or unilateral -- A legal order that as such is irrelevant to another, but it is relevant in other respects (orders that are considered unlawful by the state; corporations, de facto institutions) -- Total developments of an order to another: possibility of such an irrelevance also with respect to the order of the state -- Critical assessment of the opposite doctrine. The limitations of the state order; various figures and consequences; examples of matters that are legally indifferent to the state (private disciplinary orders; particular religious orders; the orders of some non-patrimonial associations; etc.) -- The internal orders of the institutions, especially state ones, vis-à-vis the order of other institutions in which they are included. (shrink)

Background:The performance of nurses has become vital in hospitals. Some studies have suggested that nurses’ perceptions of the ethical climate in their hospitals are related to higher job satisfaction and organizational commitment and in turn lessen the issue of nursing shortage.Hypothesis: The ethical climate types “caring,” “independent,” “law and code,” and “rules” have a significant positive impact on overall job satisfaction. The ethical climate types and overall job satisfaction have significant positive influences on normative and affective and significant negative (...) influences on continuance commitment.Research design:The study uses path analysis to understand which types of ethical climate impact overall job satisfaction. It also tries to find the effect of different types of ethical climate and overall job satisfaction on the components of organizational commitment. The relationships between variables were evaluated using factor analysis, reliability, descriptive statistics, correlations, and regression in this study.Participants and research context:A total of 171 useful questionnaires were collected from nurses working in public and private hospitals in Bosnia and Herzegovina.Ethical considerations:Formal research approval was obtained from the administration of each study hospital. Questionnaires with a cover letter were mailed to the hospitals that agreed to participate in the study. In the cover letter, the researchers explained the study purpose, encouraged nurses’ voluntary participation, and guaranteed the anonymity of participants.Findings:In the first path analyses, “rules” and “caring” climates significantly and positively affected overall job satisfaction. In the second one, while overall job satisfaction and “rules” climate significantly influenced normative commitment, “caring” climate and overall job satisfaction significantly affected affective commitment.Discussion:The findings of the study have been convenient with the literature.Conclusion:Public and private hospitals can enhance overall job satisfaction and organizational commitment by altering the ethical climate of organizations. Hospital administrations should nurture caring and rule types of ethical climate which influence overall satisfaction. By this way, they could reduce nursing shortage. (shrink)

State health departments are at the core of the United States public health infrastructure. Surveillance to monitor trends in disease and injury; the development, coordination, and delivery of services; and public education are some of the core functions health department employees oversee every day. As such, agencies and their employees are well positioned to inform policy decisions that affect the public’s health. However, little is known about the role of health department staff — a sizeable proportion of the public health (...) workforce — as advocates for public health policies, independent of their agency roles. Anecdotally, some health department employees with whom we have spoken expressed reluctance to engage in policy advocacy for fear of violating little known or understood agency or state rules. (shrink)

David Hyder.The Determinate World: Kant and Helmholtz on the Physical Meaning of Geometry. viii + 229 pp., bibl., index. Berlin/New York: Walter de Gruyter, 2009.

In lieu of an abstract, here is a brief excerpt of the content:A NECESSARY CONDITION FOR THE TRUTH OF MORAL AND OTHER JUDGMENTS STEPHEN THERON Na,tional University of Lesotho Lesotho, Africa, SIMPSON'S RECENT review of Morals as Founded on Natural Law 1 so misrepresents its main point, one so vital to civilization's continuance, that I feel obliged to try to restate that point. It was of course disconcerting that he misunderstood the main point of the hook (whetlrer he agrees with (...) it or not), thoogh it may,weN. be, as he says, that the book oouM have been mOire readably written. He summarizes the book's aim as being" to establish morality on an external authoritative law "-a summary which does indeed seem close, even :identicaJ., to what is said in the book's first paragraph. However, there is ra potential equivocation in the w;ay he uses " externail.'' One should ask, external to what? What.the book speaks of in this opening paragraph is of justifying morality on ra principle " external to states of mind." I use "external" in the sense of that principle's being "independent of them," 'i.e., of meuba1l srtates. So :llar, this is a very open statement. Brut how do I go on to amplify it? Not the way Simpson does. He takes me as equating this principle with " the authoritative law of God," in the sense of "a divine legislative aiuthority " which, he reports me as arguing, " is just somehow an inemdicwblegiven." This " somehow " not only refoses to consider the meta1 Stephen Theron, Mora,ls M Founded on Na,tural Lww, European University Studies (New York: Peter Lang, 1987; 2nd ed. 1988). Reviewed by Peter Simpson in The ThomiBt 53 (1989): 341-342. ~93 294 STEPHEN THERON physical reasoning at the heart of the book's position but even seems to suggest that such reasoning was not evien offered. In fact it is precisely at this point that Simpson goes right off the raiJs as far as representing my view is concerned. H~ claims that this foundation upon divine authority would make morals "dependent on ·divine 1a.w, not, as his title dedares, on natural law." However, my use of " naturrul law " is rthe Thomistic use, which is sufficiently wen known in the debate so as not to be misleading. In the view of St. Thomas (and a whole established school of thought), natural law is indeed, in Simpson's words, "deriviative and secondary," or, in St. Thomas's words, "a reflected divine light.'' 2 Brut in the famous Artiicle 2 of Question 94 of the Prima secundae of the Summa theologica, so exh81ustively discussed in.the rooent literaturie, natural law is declared to be derived from the eternal law and not from divine law in the "external " or positivist •sense clearly intended by Simpson. (A different distinction is used in the Contra gentiles, but throughout my book the above text was referred to, often explicitly). "Divine law," the fourth type of law (eternal law and natural law being the first two types), does indeed refer, in this text, to some kind of positiv;e legisfation on the part of God in the 01d and New Testaments. (But evien here St. Thomas is oarefoil to point out that the law of the New Testament is only analogous to positive law, since it is not written on stone but poured into men's hearts by the Holy Spirit.) If I had been referring to this divine law (in such phrases as " reaISOn is divine and.therefore law ") and not thait eternal law which is one with the divine being, Simpson might have been able to brooket me with those nominalist theologians for whom.2" quasi lumen r.ationis naturalis... nihil aliud sit quam impressio luminis divini in nobis. Unde patet quod lex naturalis nihil aliud est quam participatio legis aeternae in rationali creatura." St. Thomas Aquinas, Summa theologica I-II, 91. 2. THE TRUTH OF MORAL JUDGMENTS 295 God might hav:e decreed an opposite morality if he so chose. (Though this, too, would be contrary to St. Thomas's view of such positive divine law, ev;en for the Old Testament; indeed for him even 011dinary "human" positivie law loses the sense... (shrink)

In this paper I distinguish between three conceptions of human rights and thus three human rights agendas. Each is compatible with the others, but distinguishing each from the others has important theoretical and practical advantages. The first conception concerns those human rights tied to natural duties binding all persons to one another independent of and prior to any institutional context and the violation of which would “shock the conscience” of any morally competent person. The second concerns the institutional conditions (...) necessary and sufficient for particularist legal and political obligations to take on prima facie moral force so that the members of different polities face one another in an asymmetric moral relationship, with each side having a rightful claim to political self-determination. The third concerns those human rights arising exclusively as a matter of positive international law out of the voluntary undertakings of legitimate polities within the international order. Each of these different conceptions is tied to a different human rights agenda. The second is tied to the struggle to realize recognitional norms of legitimacy within the international order. The third is tied to the ongoing effort to incorporate into positive international law through voluntary initiative an ever expanding moral consensus between legitimate polities. The first is tied to the emerging practice of humanitarian intervention and system of international criminal liability. Thus, while all human rights share certain features – they’re universal, and so on – human rights differ in important ways. Attending to these differences would likely improve both the theory and practice of human rights. (shrink)

Michael S. Moore defends the ideas of free will and responsibility, especially in relation to criminal law, against several challenges from neuroscience. I agree with Moore that morality and the law presuppose a commonsense understanding of humans as rational agents, who make choices and act for reasons, and that to defend moral and legal responsibility, we must show that this commonsense understanding remains viable. Unlike Moore, however, I do not think that classical compatibilism, which is based on a conditional understanding (...) of the ability to do otherwise, provides a sufficiently robust account of free will, even when it is amended as Moore suggests. I argue that free will and responsibility can be defended more robustly by observing that, at the level of agency, there can be alternative possibilities and mental causation in a stronger sense than recognized by classical compatibilism, even if physical determinism is true. Moore’s arguments could thus be strengthened by embracing this compatibilist libertarian position. At the same time, I note that, although the idea of responsibility is robustly defensible, there are independent reasons for rejecting a retributivist approach to punishment. (shrink)

There is an old but powerful argument for the claim that exhaustive divine foreknowledge is incompatible with the freedom to do otherwise. A crucial ingredient in this argument is the principle of the “Fixity of the Past”. A seemingly new response to this argument has emerged, the so-called “dependence response,” which involves, among other things, abandoning FP for an alternative principle, the principle of the “Fixity of the Independent”. This paper presents three arguments for the claim that FI ought (...) to be preferred to FP. (shrink)

What kind of reality is legal reality, how is it created, and what are its a priori foundations? These are the central questions asked by the early phenomenologists who took interest in social ontology and law. While Reinach represents the well-known “realist” approach to phenomenology of law, Felix Kaufmann and Fritz Schreier belonged to the “positivist” “Vienna School of Jurisprudence,” combining Hans Kelsen’s Pure Theory of Law with Edmund Husserl’s phenomenology—and thereby challenging Reinach’s views on how legal reality and the (...) legal a priori were to be conceived. This paper addresses the controversy between these positivist and realist approaches to phenomenology of law, with the goal of introducing the lesser known theories of Kaufmann and Schreier. The special focus on their critique of Reinach’s outline should give us an overview of their positions vis-à-vis the basic and a priori elements of which legal reality consists and the role that phenomenology plays in analyzing them. There is one general tendency to be noted: While the phenomenological legal positivists see the root of legal reality in an act of interpretation according to a “normative scheme of interpretation,” Reinach locates the roots of legal reality in social interaction and argues for the existence of entities independent of any interpretation. (shrink)

This paper addresses a particular interpretation of quantum mechanics, i.e. superdeterminism. In short, superdeterminism i) takes the world to be fundamentally deterministic, ii) postulates hidden variables, and iii) contra Bell, saves locality at the cost of violating the principle of statistical independence. Superdeterminism currently enjoys little support in the physics and philosophy communities. Many take it to posit the ubiquitous occurrence of hard-to-digest conspiratorial and coincidental events; others object that violating the principle of statistical independence implies the death of the (...) scientific methodology. In this paper, we offer a defense to these and other objections. To counter the conspiracy objection, we draw upon the philosophical literature on time travel, and conclude that the picture of the world offered by the superdeterminist does not need to be particularly surprising or conspiratorial. We then move on to other recent objections, in particular those that focus on the methodology of science and the nature of the physical laws compatible with superdeterminism. A key ingredient of our arguments is that the principle of statistical independence may be violated in theory, but valid for practical purposes. Our overarching goal is to offer a defense of superdeterminism with respect to its main objections, so that it can earn its keep as a legitimate contender among the possible interpretations of quantum mechanics. (shrink)

Normative literature on the Catalan crisis is largely occupied with the conflict’s central legalistic problem: can political units like Catalonia be allowed to split off from Spain unilaterally? This article reframes the issue and asks why secessionist Catalans should ever abide by Spanish legal constraints, given that Spanish law is precisely the institution they are politically trying to get rid of. It focuses on the anti-secessionist role played by the Spanish Constitutional Court between 2010 and 2017 and studies three arguments (...) why Catalans supposedly have to accept the Court’s authority. The article contends that two arguments—the “mutual benefit argument” and the “law and democracy” argument—will not be independently persuasive to Catalan secessionists. Instead, the Constitutional Court’s authority must ultimately be grounded in a different type of argument: the “law and order argument.” Secessionist Catalans’ supposed duty to obey the orders of the Constitutional Court is ultimately not rooted in a positive service provided by the Court, but in the disruptive effects of disobeying. That exposes an explanatory defect in Joseph Raz’s influential theory of authority, which seeks to ground authority exercises in a concept in prior reason or their capacity to make our life better. That conceptualization misses the key decisionistic element to political authority: its capacity to constitute our reasons, that is, to define the terms that give meaning to our evaluations. (shrink)

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

Ms. X is a person with cerebral palsy and schizophrenia. She has intractable bedsores that are a result of her immobility and to poor wound care related to her delusional thinking. Despite intensive community support, the wounds have worsened to the point that she has needed multiple hospitalizations to prevent systemic sepsis, a life‐threatening condition. She is capable of placement decisions and wishes for independence at home but is incapable of making wound care decisions and does not appreciate that immediately (...) returning home from the hospital, instead of going into a special care facility, would likely result in sepsis. The resulting dilemma about discharge planning highlights the complexity involved in weighing concerns around mental illness and capacity for treatment and placement of care. The extent of the care that is required and available in a community or health care system and the slow but relatively certain progression of the symptoms also make the decision challenging. Two commentaries take very different approaches in exploring the question whether Ms. X should be supported to go home or to a special care facility. (shrink)