Law, Strategy and Democracy: A Response to Duff

abstract   In this response to Antony Duff's paper, I raise doubts about the method of moving from internal to external critique, suggesting that external critique, focusing on more basic principles in moral and political philosophy, has primacy, and that internal critique, if it is done well, will very quickly turn external. I then suggest a different distinction: that between pure and strategic philosophical work, suggesting that more strategic work might be done in legal philosophy to improve the impact of philosophical work on those more concerned with policy. Finally, I suggest that more philosophically focused work on law and democracy has become increasingly important in the light of developments in criminal justice, something missing from Duff's account .     

In Defence of the Will Theory of Rights

Nicholas Vrousalis has aimed to recast an old objection to the will theory of rights by focusing on Hillel Steiner??s version of that theory. He has argued that Will Theory must either be insensitive to the (values of the) lives of the unempowerable, or be incomplete, because it has no argumentative resources within its conceptual apparatus to ascribe or justify restrictions on the amount of discretion exercised by legal officials. I show that both charges are problematic. They rely on some of Steiner??s inferences which are simply unjustified because they are based on misinterpretations of the logic of Hohfeld??s terminology. The problem for Vrousalis is that his critique takes for granted some of these flawed arguments. The critique is also misdirected to the extent that it assumes that the problems with Steiner??s theory affect Will Theory in general.     

A brief history of the concept of free will: issues that are and are not germane to legal reasoning

Examining the history of the concept of free will helps distinguish metaphysical issues beyond the interest of a court of law from considerations about the nature of human action germane to legal reasoning. The latter include Plato's conception of the rational governance of the soul and Aristotle's conception of voluntary action, both of which arose before Hellenistic philosophers propounded analogues of modern positions against determinism (Epicureans) or for the compatibility of free will and determinism (Stoics). The concept of will itself also has a history, being first conceived as a distinct power by Augustine. Modern physics raised new problems about free will, as human motivations began to look less like rational perceptions of the good and more like mechanistic causes. Contemporary philosophy has not solved the problem of free will but has spun off analyses of the nature of action and moral responsibility that are of interest for legal reasoning.     

What Is Legal Philosophy?

This article delineates some of the main issues that are debated by philosophers of law. It explores the connections between legal philosophy and other areas of philosophy, while also seeking to specify the distinctiveness of many of the concerns that have preoccupied philosophers of law. It illustrates its abstract points with examples focused on the separability of law and morality, the nature of the rule of law, the nature of rights, justifications for the imposition of punishment, and the identification of basic legal entitlements.     

模拟法官决策中心理控制源对后见偏差的影响

考察模拟法官决策中心理控制源对后见偏差的影响。实验采用2（心理控制源：外控型、内控型）×3（有无策略：后见组、分散注意组、指导组）两因素被试间实验设计。采用自编两个案例及问卷测查模拟法官决策中后见效应的差异。实验结果发现,不同心理控制源是导致模拟法官决策中后见偏差存在差异的影响因素。同时,两种策略都能够有效减少模拟法官决策中的后见偏差。     

Practical Reasons, Practical Rationality, Practical Wisdom

There are a number of proposals as to exactly how reasons, ends and rationality are related. It is often thought that practical reasons can be analyzed in terms of practical rationality, which, in turn, has something to do with the pursuit of ends. I want to argue against the conceptual priority of rationality and the pursuit of ends, and in favor of the conceptual priority of reasons. This case comes in two parts. I first argue for a new conception of ends by which all ends are had under the guise of reasons. I then articulate a sense of rationality, procedural rationality, that is connected with the pursuit of ends so conceived, where one is rational to the extent that one is motivated to act in accordance with reasons as they appear to be. Unfortunately, these conceptions of ends and procedural rationality are inadequate for building an account of practical reasons, though I try to explain why it is that the rational pursuit of ends generates intuitive but misleading accounts of genuine normative reasons. The crux of the problem is an insensitivity to an is-seems distinction, where procedural rationality concerns reasons as they appear, and what we are after is a substantive sense of rationality that concerns reasons as they are. Based on these distinct senses of rationality, and some disambiguation of what it is to have a reason, I offer a critique of internalist analyses of one’s reasons in terms of the motivational states of one’s ideal, procedurally rational self, and I offer an alternative analysis of one’s practical reasons in terms of practical wisdom that overcomes objections to related reasons externalist views. The resulting theory is roughly Humean about procedural rationality and roughly Aristotelian about reasons, capturing the core truths of both camps.

Neo-Fascist Legal Theory on Trial: An Interpretation of Carl Schmitt's Defence at Nuremberg from the Perspective of Franz Neumann's Critical Theory of Law

This article addresses, from a Frankfurt School perspective on law identified with Franz Neumann and more recently Habermas, the attack upon the principles of war criminality formulated at the Nuremberg trials by the increasingly influential legal and political theory of Carl Schmitt. It also considers the contradictions within certain of the defence arguments that Schmitt himself resorted to when interrogated as a possible war crimes defendant at Nuremberg. The overall argument is that a distinctly internal, or “immanent”, form of critique is required of Schmitt's position, in which its is found wanting even on its own terms. In principle, the application of this dialectical mode of critique can allow a genuine debate to emerge between those seeking to continue both the Schmittian and critical theory traditions, whilst safeguarding the latter from the dangers of formulating polemical interventions that are, in effect, counterproductive to their own intentions. This revised version was published online in June 2006 with corrections to the Cover Date.     

Responsibilities of Criminal Justice Officials

In recent years, political philosophers have hotly debated whether ordinary citizens have a general pro tanto moral obligation to follow the law. Contemporary philosophers have had less to say about the same question when applied to public officials. In this paper, I consider the latter question in the morally complex context of criminal justice. I argue that criminal justice officials have no general pro tanto moral obligation to adhere to the legal dictates and lawful rules of their offices. My claim diverges not only from the commonsense view about such officials, but also from the positions standardly taken in legal theory and political science debates, which presume there is some general obligation that must arise from legal norms and be reconciled with political realities. I defend my claim by highlighting the conceptual gap between the rigid, generalised, codified rules that define a criminal justice office and the special moral responsibilities of the various moral roles that may underpin that office (such as guard, guardian, healer, educator, mediator, counsellor, advocate, and carer). After addressing four objections to my view, I consider specific contexts in which criminal justice officials are obligated not to adhere to the demands of their offices. Amongst other things, the arguments advanced in this paper raise questions about both the distribution of formal discretion in the criminal justice system and the normative validity of some of the offices that presently exist in criminal justice systems.     

Kant's Theory of Judgment,and Judgments of Taste: On Henry Allison's Kant's Theory of Taste

An examination of the currently fashionable thesis that scientists, and especially biologists in the wake of the Darwinian Revolution, can now solve the problems that traditional philosophers have only talked about. Past philosophers, for example during the Enlightenment, have themselves made use of contemporary, scientific techniques and theories. The present claim may only be another such move, to be welcomed by philosophers who would distinguish themselves from rhetoricians. Others may prefer to stake out the merely human or subjective world as their field, identifying 'truth' with 'what it's better to believe'. Both moderns and postmoderns must abandon the rational realism that actually sustained Enlightenment endeavours, and Darwinian explanation, on its own, must erode traditional ethical values and the meta-ethical assumptions that sustain them. Universal humanism is only one possible project among many - and Darwinian reasonings suggest that it is hypocritical. In this crisis there may after all be a rôle for traditional, Platonizing philosophers, believing that there is a truth, and that we can find it out. Such a theory is actually better able to explain our scientific successes, and our evolutionary past.     

FOUNDATIONALISM AND CONSTITUTIONAL RIGHTS: THE CONTRIBUTION OF PRAGMATISM

The controversy over judicial activism is as old as the question whether law is "made" or "found" by the courts, and is die quintessential living question for legal philosophers. Here the practical meets the abstract, as Supreme Court justices must, explicitly or not, adopt some philosophical viewpoint in deciding how general constitutional propositions do, or do not, decide current concress te controversies.     

Epistemic Rationality

Many epistemologists and philosophers of science, especially those with “naturalist” inclinations, argue that if there is to be any such thing as normativity or rationality in these domains, it must be instrumental—roughly, a matter of goal satisfaction—rather than something involving normative “oughts” that are independent of the satisfaction of our epistemic, cognitive, or other ends. This paper argues that while such an instrumental conception of epistemic rationality is perfectly respectable, even insofar as it concerns specifically epistemic ends, it cannot be the whole story about such normativity. Rather, it must be accompanied by a “categorical,” goal‐independent sort of normativity that cannot be reduced to instrumental rationality, both because instrumental rationality itself depends on a noninstrumental relationship between a belief/claim/theory and the evidence that renders it rational, and because the epistemic rationality of many beliefs is independent of the goals of their believers.     

Developing Moral Responsibleness Through Professional Education

Suggesting that a technical or means orientation prevails in the professional preparation and practice of counselors, the authors state that more attention must be given to development of critical reflectiveness about valued ends when making professional judgments. They describe an instructional model designed to further students' capacities and motivations for making rational moral judgments in counseling. Instructional strategies involving independent-learning modules, critique, and dialogue are used to promote reflection on self and examination of moral questions. A pretest-posttest evaluation of a 10-week application of the teaching model found significant student gains in moral sensitivity.     

Nietzsche,science, and philosophical nihilism

Abstract

Nietzsche offers us a critique of modern culture as threatened by a nihilistic crisis in values. Philosophy is specifically incorporated into Nietzsche’s critique, resulting in the claim that modern philosophy, as well as modern culture, is nihilistic. But why should contemporary philosophers give this view credence? In this paper, I put forward some reasons to take Nietzsche’s view seriously, focusing on the relationship between science and philosophy. I suggest that modern philosophy still tends to idealise science as an exemplar of objectivity, particularly as this relates to judgement, even despite widespread acknowledgement that science is not value-free. I therefore argue that Nietzsche’s critique is valuable in two respects: first, it calls the notion of a scientific ideal grounding objective, cross-cultural, judgement into question, and second, it facilitates a distinction between this scientific ideal and science itself.     

The reality of the intuitive

According to current methodological orthodoxy philosophers rely on intuitions about thought experiments to refute general claims about the nature of knowledge, freedom, thought, reference, justice, beauty, etc. Philosophers working under the banner of ‘negative experimental philosophy’ have criticized more traditional philosophers for relying on this method. They argue that intuitions about thought experiments are influenced by factors that are irrelevant to the truth of their contents. Cappelen and Deutsch defend traditional philosophy against this critique by rejecting the picture of philosophical methodology it presupposes: philosophers do not really rely on intuitions. In this paper, I defend methodological orthodoxy by arguing that philosophers must rely on intuitions somewhere and that they do in fact often rely on intuitions about thought experiments. I also argue in favor of a reply to the negative experimental critique that is similar to at least part of Deutsch’s own.     

On the self-undermining functionality critique of morality

Nietzsche's injunction to examine “the value of values” can be heard in a pragmatic key, as inviting us to consider not whether certain values are true, but what they do for us. This oddly neglected pragmatic approach to Nietzsche now receives authoritative support from Bernard Reginster's new book, which offers a compelling and notably cohesive interpretation of Nietzsche's On the Genealogy of Morality. In this essay, I reconstruct Reginster's account of Nietzsche's critique of morality as a “self-undermining functionality critique” and raise three problems for it: (i) Is there room within an etiological conception of function for the notion of self-undermining functionality? (ii) If Nietzsche's critique is internal and based solely on the function it ascribes to morality, where does that critique derive its normative significance from? (iii) Does Reginster's account not make out ascetic morality to be more universally dysfunctional than it is, given that some priestly types have done remarkably well out of morality?     

Why is Law a Normative Discipline? on Hans Kelsen’s ‘Normology’

What does it mean to claim of law that it is a normative discipline? Can the answer be so simple that one need merely refer to law’s normative object of study and the conclusions that the legal participant must allegedly draw from this? What, in any case, is a ‘normative discipline’? The essay attempts to address these questions by analysing Hans Kelsen’s ‘normological’ theory of law through his work on sovereignty and especially by focusing on the normative character of Kelsen’s epistemological claims regarding law. A theoretical critique of Kelsen is offered through Edmund Husserl’s phenomenological account of logic as a normative discipline.     

Practical Reason and the Stability Standard

Practical reasoning, reasoning about what to do, is a very familiar activity. When we think about whether to cook or to go out for dinner, to buy a house or rent, or to study law or business, we are engaged in practical reasoning. If the kind of reasoning we engage in is truly a rational process, there must be some norms or standards that govern it; the process cannot be arbitrary or random. In this paper I argue that one of the standards that governs practical reasoning is the stability standard. The stability standard, I argue, is a norm that is constitutive of practical reasoning: insofar as we do not take violations of this norm to be relevant considerations, we do not count as engaged in reasoning at all. Furthermore, I argue that it is a standard we can explicitly employ in order to deliberate about our ends or desires themselves. Importantly, this standard will not require that some ends are prescribed or determined by reason alone. The stability standard, therefore, allows us to retain some of the attractive features of instrumentalism without accepting the implication that there is no rational way to evaluate ends.     

Constructing the law: discourses and social practices

This paper presents an analysis of everyday understandings of the law, within the context of a dispute between colonial and indigenous land interests in New Zealand. The analysis is informed by developments in the areas of critical legal studies, methodological critique of legal psychology, the social constructionist movement within social psychology, and the application of discursive psychology to understandings of racism. Data for this work was drawn from a corpus of letters to the editor of a newspaper, published in the city where the land dispute took place. Writers constructed the dispute as a legal issue and deployed two divergent constructions of the law. When the ‘primacy’ of the law was invoked, indigenous interests and the protesters were positioned as lawbreakers. When ‘the law in context’ was the resource used, protesters became positioned as seekers of justice. These variable constructions are discussed in terms of the social practices they engender and their wider contribution to debates regarding indigenous and colonial interests. Copyright © 2007 John Wiley & Sons, Ltd.     

Killing by Autonomous Vehicles and the Legal Doctrine of Necessity

How should autonomous vehicles (aka self-driving cars) be programmed to behave in the event of an unavoidable accident in which the only choice open is one between causing different damages or losses to different objects or persons? This paper addresses this ethical question starting from the normative principles elaborated in the law to regulate difficult choices in other emergency scenarios. In particular, the paper offers a rational reconstruction of some major principles and norms embedded in the Anglo-American jurisprudence and case law on the “doctrine of necessity”; and assesses which, if any, of these principles and norms can be utilized to find reasonable guidelines for solving the ethical issue of the regulation of the programming of autonomous vehicles in emergency situations. The paper covers the following topics: the distinction between “justification” and “excuse”, the legal prohibition of intentional killing outside self-defence, the incommensurability of goods, and the legal constrains to the use of lethal force set by normative positions: obligations, responsibility, rights, and authority. For each of these principles and constrains the possible application to the programming of autonomous vehicles is discussed. Based on the analysis, some practical suggestions are offered.     

Descartes as critic of Galileo's scientific methodology

Some philosophers of science suggest that philosophical assumptions must influence historical scholarship, because history (like science) has no neutral data and because the treatment of any particular historical episode is going to be influenced to some degree by one's prior philosophical conceptions of what is important in science. However, if the history of science must be laden with philosophical assumptions, then how can the history of science be evidence for the philosophy of science? Would not an inductivist history of science confirm an inductivist philosophy of science and a conventionalist history of science confirm a conventionalist philosophy of science? I attempt to resolve this problem; essentially, I deny the claim that the history of science must be influenced by one's conception of what is important in science — one's general philosophy of science. To accomplish the task I look at a specific historical episode, together with its history, and draw some metamethodological conclusions from it. The specific historical episode I examine is Descartes' critique of Galileo's scientific methodology.