Legal and Philosophical Fictions: At the Line Where the Two Become One

Anti-foundationalism is a central topic in recent legal scholarship. The critical legal studies movement (CLS) has mounted a strong challenge to the traditional belief that legal materials (constitutions, statutes, and precedents) determine legal outcomes and constrain judicial decision making. This scholarship has overlooked, however, the degree to which the debate between traditional legal determinacy and anti-foundational indeterminacy is yet another manifestation of a continuous debate in Western thought – one that has its roots in pre-Socratic rhetoric and philosophy.This paper traces the indeterminacy thesis back to the contest of ideas between Protagoras and Plato. I examine two well-known and elated Protagorean notions: first, that two arguments (logoi) are always set in opposition to one another with regard to every matter and, second, that the rhetorician can always make the weaker argument the stronger. I contend that taking these Protagorean notions seriously – perhaps even more seriously than self-avowed anti-foundationalists customarily do – leads paradoxically to a modified endorsement of foundationalism that is nevertheless wholly consistent with the Protagorean project. Calling upon texts by Aristotle, Seneca and René Girard, I focus upon how fictionality in representations of Platonically conceived Truth reveals a binarization in thought that is simultaneously untenable and unavoidable.     

‘Outdoing Lewis Carroll’: Judicial Rhetoric and Acceptable Fictions

This paper examines the functions of narrative within legal argumentation. My purposes are these: 1) to repudiate common assumptions that differentiate argumentation and storytelling in the law; 2) to begin to theorize anew how legal argumentation functions; 3) to explore the difficulties of evaluating the law's argumentative narratives; and 4) to trace some of the anxiety that judges themselves reveal about their roles as storytellers. I conclude that narrative is necessary to law's claims to authority, even as it complicates our understandings about how legislative policy decisions produce effects, and even as judges themselves seek to mask its importance.     

欧洲大陆法律心理学述评

对欧洲大陆国家的法律心理学发展状况作了述评。全文包括３部分：对相关概念（犯罪心理学、审判心理学、法律心理学、司法心理学）的辨析;欧洲大陆国家法律心理学的现状;简要评价。     

Reasoning with Factors

The paper proposes an analysis and a formalisation of factor-based reasoning. After examining the relevance of factors in legal reasoning, binary and scalable factors (dimensions) are distinguished and the relations between them are discussed. An account of a fortiori reasoning with both types of factors is developed. This article reports ideas which are discussed and developed in Sartor (2005). We refer to the latter work for the theoretical framework in which our analysis of factors is embedded.     

Liberalism and the Privatised Family: The Legacy of Rousseau

This article argues that the intellectual legacy of Rousseau is at the root of the failure of 20th century egalitarian theorists such as Rawls and Dworkin to engage intellectually with feminist theorists working within the liberal tradition. Through an extended critique of Rousseau’s delineation of the relationship between liberal citizenship and the private family, it argues that the failure of such liberal theorists to take gender hierarchy seriously is a consequence of their attempt to place the private family outside the sphere not only of politics, but also of justice.     

Index of suspicion: feeling not believing

Throughout the U.S., state laws require professionals who work with children to report cases of suspected child abuse to child protection services. Both practically and conceptually, however, significant problems arise from a lack of clarity regarding the threshold that has been set for reporting. Specifically, there is no consensus as to what constitutes reasonable suspicion, and little direction for how mandated reporters should gauge their legal and professional responsibilities when they harbor suspicion. In this paper we outline the context of the problem, discuss the nature and scope of its conceptual underpinnings, and offer recommendations for moving towards a concrete, practical solution.     

The professional approach to engineering ethics: five research questions

This paper argues that research for engineering ethics should routinely involve philosophers, social scientists, and engineers, and should focus for now on certain basic questions such as: Who is an engineer? What is engineering? What do engineers do? How do they make decisions? And how much control do they actually have over what they do?     

‘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.