Logic or rhetoric in law?

One of the most crucial questions in the philosophy of law deals with the very nature of legal reasoning. Does this reasoning belong to logic or to rhetoric? This debate, increasingly centered on rhetoric, is not merely a question of language use; it covers and indicates a more basic choice between formal legalism — focusing on rational deduction from the law — and pragmatic judiciarism — focusing on reasonable debate in the court. Today, it is necessary to circumscribe the respective fields of logic and rhetoric in the language of law, while showing how they are sometimes complementary in the resolution of legal problems. But, even when we have acknowledged the need for a rhetoric accompanied by logic, we have to define that rhetoric cautiously. I confront a narrow rhetoric, often called argumentation, with a wider one of interrogative nature. There are two conceptions of rationality at stake. Their comparison enables us to raise the question of the foundation of law, as a locus to use arguments, as well as to solve social problems.     

Following the law because it’s the law: obedience,bootstrapping, and practical reason

Voluntarists in the early modern period speak of an agent’s following the law because she was ordered to do so or because it’s the law. Contemporary philosophers tend either to ignore or to dismiss the possibility of justified obedience of this sort – that is, they ignore or dismiss the possibility that something’s being the law could in itself constitute a good reason to act. In this paper, I suggest that this view isn’t taken seriously because of certain widespread beliefs about practical reason – in particular, it’s due to the belief that it’s impossible for reasons to be “bootstrapped” into existence. I argue, though, that a plausible account of practical reasoning should allow that reasons can be bootstrapped into existence, and so there’s no reason to be suspicious about the possibility of a person’s being justified in following the law because it’s the law. I end by suggesting that this conclusion opens up important new avenues of inquiry for philosophers working on topics related to legal obedience.     

Does natural law have non-normative foundations?

This paper addresses one aspect of the natural law theory of Germain Grisez. According to Grisez, practical reason identifies the goods of human life prior to the invocation of any moral or normative notions. It can thus provide a non-normative foundation for moral theory. I present Grisez’s position and argue that the apparently non-normative aspect of natural law cannot support the moral position built upon it. I argue, in particular, that practical principles, as Grisez understands them, are best understood as speech acts. If this is correct, it is possible to develop a sceptical challenge to Grisez’s position. I am grateful to Michael Frede, Robert George, Richard Holton, Philip Pettit, and two anonymous reviewers for many helpful comments on this paper. This paper was presented at a seminar in the Department of Philosophy at Princeton University in November 1987, and I am grateful for the comments I received from the audience—in particular, Germain Grisez—on that occasion.     

Can the criminal law ever be therapeutic?

This paper addresses the question of whether criminal law, especially in its sentencing and penological aspects, can be adjusted in its workings to incorporate the perspective of therapeutic jurisprudence. A conceptual framework developed by Wexler, Winick, and their colleagues is employed to provide a basis for reflection on the operation and impact of sentencing processes. Of considerable importance in this exercise is a mounting volume of evidence concerning the outcomes of work with adjudicated offenders, which illustrates the potential of psycho-educational, behavioral-cognitive skills-training, and therapeutic programs for reduction of recidivism. Such intervention programs are currently offered within the limits set by, but are not intrinsic components of, judicial decisions. The psycho-legal implications of these findings are discussed and some possibilities surveyed for tentative exploration of actively therapeutic departures within crimino-legal decision-making.     

Truth in Frege's ‘law of truth’

I wish to thank Peter Hylton, from whom I have learned much in discussion of these issues, and whose comments upon a previous draft of this paper helped to give it its present shape. I must also thank two anonymous referees, who were most helpful on both specific and general points, and Axel Boldt, who helped with the German.     

Pitch strength and Stevens’s power law

Recent studies have suggested that the saliency or the strength of pitch of complex sounds can be accounted for on the basis of the temporal properties in the stimulus waveform as measured by the height of the first peak in the waveform autocorrelation function. We used a scaling procedure to measure the pitch strength from 15 listeners for four different pitches of complex sounds in which the height of the first peak in the autocorrelation function systematically varied. Pitch strength judgments were evaluated in terms of a modification of Stevens’s power law in which temporal information was used from both the waveform fine structure and the envelope. Best fits of this modified power law to the judged pitch strengths indicate that the exponent in Stevens’s power law is greater than 1. The results suggest that pitch strength is primarily determined by the waveform fine structure, but the stimulus envelope can also contribute to the pitch strength.     

How can we understand Islamic law today?

This article attempts to point to certain major aspects of Islamic law which have been obscured from view by the separation between specialized academic disciplines.

It indicates the parallel between Arab common law and English common law and also points out that Arab common law is the template for Islamic law, while acknowledging that the Sunni and Shi^cite traditions differ over this. Arab custom also provided negative examples and the article shows that these were contradicted in the Qur'an and Prophetic hadith with respect to practices prejudicial to women.

The article suggests that the tribal system made it impossible to enforce certain formal legal penalties and that interim measures were used until the Sunni schools of law were established following the urbanization of Islamic society. What remains today of the traditional Islamic impulse is the importance of an independent judiciary as an essential value. The impact of social reality on Islamic law often takes the form of differences in u&art1;ūl al-fiqh.     

‘Ought implies Can’ and the law

In this paper, we investigate the ‘ought implies can’ (OIC) thesis, focusing on explanations and interpretations of OIC, with a view to clarifying its uses and relevance to legal philosophy. We first review various issues concerning the semantics and pragmatics of OIC; then we consider how OIC may be incorporated in Hartian and Kelsenian theories of the law. Along the way we also propose a taxonomy of OIC-related claims.     

Mandela’s “Force of law”

In “Force of Law: The ‘Mystical Foundation of Authority’,” Jacques Derrida argues that the law’s authority is mystical, unattainable in its origins, theforce of law therefore precipitating conditions for its perpetual contest. The force of Derrida’s “Force of Law” is illustrated in his study of Nelson Mandela (“The Laws of Reflection: Nelson Mandela, In Admiration”). Derrida’s Mandela reflects the law’s divisibility, and therefore its iterability in representation beyond the force of its founding letter—of which apartheid was an extreme example. Mandela makes visible the need for the law’s supplement, as performative justice in the face of inherent violence in the law’s conserving force. Mandela’s performativeforce of law, contesting the inaugural violence of law, is inseparable from an implicit warp and weft of historical and theological influences.     

Hart and Honoré on causation in the law

Hart and Honoré contend, in their book Causation in the Law, that causal appraisals in everyday life and in the law can be made, with justifiable confidence, without appealing to relevant general laws; that in order to grasp the workings of causal notions in everyday life and the law, it is sufficient to note that causes are events which interfere with or intervene in the course of events which would normally have taken place. This thesis is criticized on the ground that what purport to be purely causal appraisals are hopelessly vulnerable to moral considerations, especially when such appraisals are presumed to take place in complete independence of scientific theory.     

Enumeration of small collections violates Weber’s law

In a phenomenon called subitizing, we can immediately generate exact counts of small collections (one to three objects), in contrast to larger collections, for which we must either create rough estimates or serially count. A parsimonious explanation for this advantage for small collections is that noisy representations of small collections are more tolerable, due to the larger relative differences between consecutive numbers (e.g., 2 vs. 3 is a 50 % increase, but 10 vs. 11 is only a 10 % increase). In contrast, the advantage could stem from the fact that small-collection enumeration is more precise, relying on a unique mechanism. Here, we present two experiments that conclusively showed that the enumeration of small collections is indeed “superprecise.” Participants compared numerosity within either small or large visual collections in conditions in which the relative differences were controlled (e.g., performance for 2 vs. 3 was compared with performance for 20 vs. 30). Small-number comparison was still faster and more accurate, across both “more–fewer” judgments (Exp. 1), and “same–different” judgments (Exp. 2). We then reviewed the remaining potential mechanisms that might underlie this superprecision for small collections, including the greater diagnostic value of visual features that correlate with number and a limited capacity for visually individuating objects.     

The two‐thirds power law in motion perception

If a visual motion abruptly vanishes, the vanishing point is mislocalized in the anticipated direction of the motion (cf. Freyd & Finke, 1984; Hubbard & Bharucha, 1988; Verfaillie & d'Ydewalle, 1991). Here, we replicate this effect for curvilinear motions, showing that the compatibility with human movements, as expressed by the two‐thirds power law (cf. Lacquaniti, Terzuolo, & Viviani, 1983; Viviani, 2002), specifically contribute to this anticipation error. Thus, the compatibility effect does not manifest itself solely in an overshooting of the judged vanishing position in comparison to the objective vanishing position, but also in a more accurate anticipation of the curvilinearity of the forthcoming motion. The latter effect only occurred for spatially unpredictable target motions. Spatially more predictable target motions allowed for a different kind of anticipation, which overrode the compatibility effect. The results are discussed with regard to the notion of an action‐related influence on motion perception.     

Linear representation of temporal location and Stevens’s law

Ss were asked to indicate points 1 week, 7 months, 3 years, and 9 years in the past and future on two time lines representing birth to present and present to death. Data for 90 college-age Ss fit a psychophysical power function following Stevens’s law. with negatively accelerated growth indicating proportionately greater linear representation of periods nearer to the present. Variability was greater for the representations of the future than of the past, with monotonic increases in variability as distance from the present increased.     

Toward law–gospel harmony in Lutheran theology and ethics

Lutheran antipathy toward the law is harmful to Christian ethics. This antipathy arises from the false notion that law and gospel are opposed. However, the Lutheran Confessions show that law–gospel distinction does not necessarily imply law–gospel opposition. When law and gospel are properly defined, they interrelate harmoniously within a multiperspectival model of Christian ethics. Moreover, the third use of the law then emerges as the basic and primary use.     

What can law do for the development of bio-economy?

Bio-technology has become a new impeller to the development of the world economy since the 1970's. The development of bio-economy has two sides for mankind which calls for intervention by law. During the legislation of bioeconomy, some special principles should be esteemed and observed by legislators. It is necessary for the healthy development of bio-economy.     

Spearman's law of diminishing returns: A statistical artifact?

Spearman's Law of Diminishing Returns (SLODR) is the idea that the structure of human cognitive ability is more differentiated and g a weaker determinant of cognitive performance at higher levels of ability. In this study, we distinguish between ‘traditional’ methods of testing SLODR and ‘contemporary’ methods of testing SLODR. It is the former set of methods from which the vast majority of the evidence base for SLODR derives. We demonstrated that it is easy to mimic SLODR and reverse SLODR effects in these traditional methods of assessing SLODR by using data with skewed observed variable distributions. The skewness magnitudes did not need to be large to produce these effects and they fell well within the range of values that are usually considered unproblematic for parametric statistic analysis. In simulated datasets, positive subtest skewness resulted in SLODR and negative subtest skewness resulted in reverse SLODR. In contemporary methods of testing SLODR, non-linear g-loadings or a skewed g are assumed to reflect evidence for SLODR. When we applied contemporary methods of testing SLODR to these data, there was evidence of heteroscedastic residuals but no evidence of non-linear g-loadings or skewed g distributions. We broadly replicated the effects of subtest skew from these simulated datasets in real data from the Minnesota Study of Twins Reared Apart. Results imply that traditional methods of assessing SLODR cannot distinguish between effects due to subtest characteristics that have nothing to do with differences in ability structure at different levels of g and true SLODR effects. This calls into question the empirical support for SLODR.     

Hick’s law equivalent for reaction time to individual stimuli

Hick’s law, one of the few law-like relationships involving human performance, expresses choice reaction time as a linear function of the mutual information between the stimulus and response events. However, since this law was first proposed in 1952, its validity has been challenged by the fact that it only holds for the overall reaction time (RT) across all the stimuli, and does not hold for the reaction time (RT_i) for each individual stimulus. This paper introduces a new formulation in which RT_i is a linear function of (1) the mutual information between the event that stimulus i occurs and the set of all potential response events and (2) the overall mutual information for all stimuli and responses. Then Hick’s law for RT follows as the weighted mean of each side of the RT_i equation using the stimulus probabilities as the weights. The new RT_i equation incorporates the important speed–accuracy trade-off characteristic. When the performance is error-free, RT_i becomes a linear function of two entropies as measures of stimulus uncertainty or unexpectancy. Reanalysis of empirical data from a variety of sources provide support for the new law-like relationship.