This article offers a comparative study of the approaches of Dworkin and Aristotle to money and the market. For Dworkin the importance of this subject lies in the use he makes of the device of a hypothetical auction to provide the basis of a conception of equality of resources, compatible with liberty, and sustained by his view of ethical individualism. The technical adequacy of Dworkin's auction is considered with the assistance of an insight taken from Aristotle's comments on money, which (...) brings to light the secondary conceptual status of money. Dworkin's attempts to produce a metric of equality of resources are found wanting. It is suggested that Aristotle's insight has repercussions for Dworkin's broader project, as well as implication for any attempt to use the market to provide a sense of value in human affairs. (shrink)

Philosophy for International Lawyers: A review of Samantha Besson and John Tasioulas, The Philosophy of International Law by Patrick Capps.

This essay explores the detailed argument of the Coase Theorem, as found in Ronald Coase’s “The Problem of Social Cost” and subsequently defended by Coase in The Firm, the Market, and the Law. Fascination with the Coase Theorem arises over its apparently unassailable counterintuitive conclusion that the imposition of legal liability has no effect on which of two competing uses of land prevails, and also over the general difficulty in tying down an unqualified statement of the theorem. Instead of entering (...) the debate over what exactly the theorem holds, this article suggests that the core of Coase’s reasoning is flawed and to the extent that any version of the theorem relies upon this reasoning it can be disproved. It is further suggested that a version of the theorem which avoided the need for Coase’s core argument by focusing on “the efficiency thesis” at the expense of “the invariance thesis” would be insufficiently significant to merit the status of a theorem; and that, in any event, Coase’s reasoning does not sustain an efficient outcome. The heart of the essay comprises the allegation of an error made by Coase when he transferred his core argument to the context of economic rents. The essay commences by considering and modelling the nature of the counter-intuitive thrust to the Coase Theorem, which is used to trace the development of Coase’s reasoning, and ultimately to expose the flaw it contains. Ancillary observations are made on the relationship between the Coasean analysis of characteristically legal problems and the conditions of general market equilibrium, and the theoretical status of law-and-economics. (shrink)

Rights have become,in recent years, a significant concern of legal theorists, as well as of those involved in moral and political philosophy. This new book seeks to move a number of debates forward by developing the analysis of rights and focusing upon more general theoretical considerations relating to rights. The book is divided into five parts. The first includes an explanation of the part played by conceptual analysis within jurisprudence, while the second conducts a re-examination of Hohfeld’s analysis of rights. (...) This part deals with the arguments advanced by a number of modern theorists including Hart, White and MacCormick. The third part contains the author’s own framework for discussing rights, including examples drawn from tort, constitutional law and international law, together with an analysis of Unger’s theory of rights. Part four centres on the perceived conflict between Dworkin, Rawls and Nozick as the defenders of a rights approach, and Bentham as the champion of utilitarianism and concludes that neither deals with the fundamental concerns of morality on which their theories are based. The fifth part consists of a conclusion which reflects on the key themes and considers the role of rights within general theory. For students, particularly helpful features of the book are the overt consideration of jurisprudential methodology and the opportunity to examine a number of key theorists linked by their divergent views on the subject of rights. (shrink)

When we seek a fuller understanding of individual liberty including its relational character, we confront a conundrum. The evident advantages of a single individual possessing liberty cannot be simply transferred to a greater number of beneficiaries. This conundrum is confronted with the resources of Hohfeld's analytical framework, developed specifically to elucidate the practical outworkings of interpersonal relations within the law. Attention is also paid to concerns expressed by von Wright over a representation of liberty (permission) within the resources of standard (...) deontic logic which fails to address its social aspect. The aggregate level of the Hohfeldian scheme is employed to represent a complete picture of liberty, but one that cannot guarantee benefits for a plurality of holders. The conclusion is reached that in order to extend the advantages of individual liberty to all, something other than liberty is required. (shrink)

This essay considers the growing interest in the methodology of jurisprudence in the context of a broader examination of the relationship between legal theory and the practice of law. Attention is drawn to the particular puzzles of how theory can both be independent of and yet inform practice, and how methodology can take a similar stance towards theory. Through a detailed analysis of the methodological positions adopted by Dworkin, Raz, and Coleman and Simchen, the conclusion is reached that methodology is (...) not a resource capable of offering an independent assessment of the merits of competing theories.Mainstream jurisprudential discussion is traced through the Hart-Dworkin debate to assumptions on the relationship between theory and practice initially adopted by Hart and sustained by subsequent contributors. The morbid condition of a prominent part of contemporary jurisprudence is identified with an unwarranted elevation of theory over practice. A more fruitful role for theory is suggested, in expounding the controversies met in the practice of law and considering the potential that exists for resolving them. It is suggested that this approach breaks down an artificial divide between descriptive and normative jurisprudence.A number of ancillary matters are discussed in the essay including: semantic approaches to legal theory, Dworkin’s semantic sting, the distinction between methodological and theoretical elements of Law’s Empire, Dickson on the ‘indirectly evaluative approach’, the position of Hart in his Postscript, and Raz’s split theory of legal reasoning and law. (shrink)

This article examines the anxiety expressed by von Wright over the status of the deontic permission, P, as an independent normative category, given the interdefinability between P and O at the foundation of deontic logic. Two concerns are noted: the reducibility of P to O, and the inadequacy of P to convey a full permission in a social setting. Drawing on resources from the Hohfeldian analytical framework, the relational and aggregate features of permission are explored, and an aggregate conception of (...) permission, P, is recognized. With the assistance of insights from Demey and Smessaert on duals, Hansson on formalization, and Soames on interdefinability, it is concluded that the interdefinability thesis can be defended without threatening the independent status of P. Additional grounds for reaching this conclusion are provided from a detailed analysis of the relationship between P and P. Some implications of the more expansive notion of permission, P, are considered with regard to the resources of deontic logic and their application. (shrink)

This article considers the role of conceptual analysis in jurisprudence. In responding to the earlier article of Brian Bix, Conceptual Questions and Jurisprudence , 1 Legal Theory 465 , it is agreed that the purpose of the theorist must be identified in order to evaluate the merits of the practice of conceptual analysis, but the approach taken here differs from that proposed by Bix. In particular, it is suggested that Bix is wrong to limit stipulation within conceptual analysis to a (...) default option, and Bix's suggestion that jurisprudential analysis lacks an empirical basis is challenged. The approach developed in this article relies on a clarification of the relationships among terms, concepts, and fields of enquiry. It explores the different relationships that can exist between concepts. Seven general principles of the practice of conceptual analysis are expounded, and the proper scope of an evaluative element within conceptual analysis is considered. A final section briefly examines some of the wider implications of the approach to conceptual analysis proposed in the article. (shrink)

This article engages with Alan White’s discussion of the relationship between rights and claims and the literature provoked by it, particularly the response of Neil MacCormick. A further challenge is brought against White’s position of maintaining that there is but one kind of right, and that a right to something does not imply (nor is implied by) a claim to that thing. The analysis offered here insists on acknowledging different meanings of claim and different strengths to claims. A core distinction (...) between claim as assertion and claim as justified requirement is advanced, together with an accompaying distinction between making a claim and holding a claim. It is then possible to identify four different claims relating to a particular right as follows. ClaimA: A claims he ought to have the right that B pay him £x ClaimB: A claims he has the right that B pay him £x Right : A has the right that B pay him £x ClaimC: A claims that B pay him £x ClaimD: A claims a remedy for B failing to pay him £x In the relationship between ClaimC and the Right an equivalence can be discerned, without reaching the conclusion that the respective ideas expressed by them are the same. More broadly, this study suggests the importance for any fruitful discussion of rights, of providing a framework within which the different meanings, perspectives, and associated ideas can be approached in an orderly fashion. (shrink)

This chapter contains sections titled: The Emerging Interest in Methodology Particular Arguments Particular Topics A Concluding Overview References.

This essay is a response to the important central theme of Michael Green's recent article, Dworkin's Fallacy, or What the Philosophy of Language Can't Teach Us about the Law, 89 Va. L. Rev. 1897 (2003), which considers the relationship between the philosophy of language and the philosophy of law. Green argues forcefully that a number of theorists with quite different viewpoints commonly maintain a connection between the two which turns out to be unfounded. It is accepted that it is wrong (...) to assume such a connection, but it is suggested that Green has failed to recognise the connection that can be established between the two disciplines due to the particular way in which law as a practice uses words. The reasons given by Green for seeking to maintain a distinction between ordinary language practice and the language practice of the law are considered and rejected in part I of the essay. The general conclusion is reached that, irrespective of which position is adopted in the philosophy of law, at the point of judgment the philosophy of law and the philosophy of language are inextricably linked in being concerned to account for the same practice. Part II of the essay considers the basic issues for the philosophy of language addressed in Green's article, which are concerned with the search for the mechanism which links a particular meaning to a word. One reading of Wittgenstein's rule skepticism, supported by Dennis Patterson, is to reject the existence of any mechanism interrupting the direct connection between the capacity we possess in our language practice and the capacity we possess in the practice to which our language refers. Patterson provides another target for Green's allegation that theorists who take a position in the philosophy of law from their position in the philosophy of language are committing a fallacy. However, it is pointed out that within the Patterson-Wittgenstein position, there is no possibility of moving from one position to the other since both positions are already necessarily connected. The remaining discussion in Part II then explores the apparently common connection between law and language established within the practice of judgment and within the general view of the nature of language favoured in Patterson's reading of Wittgenstein. It is argued that Wittgenstein's philosophical method may maintain a connection between law and language, and the positions adopted within their respective philosophies, but is incapable of resolving the controversy between competing views of how law/"law" should be understood. By contrast, the practice of judgment is used precisely to resolve controversy. Although this judgment is concerned primarily with a specific part of the law, its significance extends to how we regard the philosophical endeavours that need to provide an account of it. This provides lessons for both the philosophy of language and the philosophy of law. (shrink)

Volume 13, Issue 4, December 2022, Page 626-635.

This article considers a recent attempt by Alon Harel ((1997) 17 OJLS 101) to shed light on the nature of rights by examining the way derivative rights are recognized as instances of more fundamental rights. It criticizes the way Harel seeks to make a distinction between intrinsic and extrinsic reasons for rights, and so to establish a distinctive operation of practical reasoning for rights. The rationales linked to particular rights, and stated more generally within competing rights theories, are considered; as (...) well as the significance of finding rights expressed in a generalized form, and the link between moral and legal rights.Whilst endorsing Harel's observation that an investigation of the basis for derivative rights will illuminate our understanding of rights, the conclusion is reached that the justification for rights has to be found in wider factors than found in their rationale, which of itself is incapable of providing a distinctive operation of practical reasoning. (shrink)

This article engages with Jaffey's recent contribution on the nature of no-prior-duty remedial obligations. Jaffey's use of a right-liability relation and his challenge to Hohfeld's analytical scheme are rejected as unsound. An alternative model distinguishing three pathways to account for remedial obligations and other legal consequences is proposed. This draws on the Hohfeldian scheme but extends it to permit the full expression of reflexive liabilities, mutually correlative liabilities, and the operation of nonhuman conditions. The proposed approach also recognizes a weaker (...) form of a Hohfeldian power, which is required in considering the way that the law deals with the allocation and realization of risk. (shrink)

Allan Hutchinson’s recent book, The Province of Jurisprudence Democratized, considers what is involved in seeking to establish the province of jurisprudence as a distinctive field of inquiry.Hutchinson’s principal concern with the democratization of law, legal theory, and the province of jurisprudence is examined in detail. The process of democratization and its anti-elitist character is traced through Hutchinson’s opposition to the aloof philosophical analysis of the universal in favour of an engagement with local and particular issues. However, the weight Hutchinson places (...) on his conception of strong democracy, so as to provide a different understanding of the law-power nexus and of the relationship between law and morality operating in strong democracies, is shown to be misplaced. Two related failings are pointed out.First, there is a failure to recognize competing groupings within the people, which contradict the uniform collective body Hutchinson associates with those formerly governed by elites and then constituting those liberated to exercise self-governance. Secondly, this links into Hutchinson’s exclusive preoccupation with the participatory axis of democracy – which he regards as the core feature of strong democracy as well as the basis for the law-power nexus and the law-morality relationship within a strong democracy. This is revealed as an inadequate and impoverished understanding of democracy once the presence of competing groupings within the people is acknowledged. These corrections have important consequences for a role for law that cannot be reduced solely to politics, and for a broader sweep to analytical jurisprudence than Hutchinson allows.Hutchinson’s own efforts to capture the province of jurisprudence are then assessed. These are recharacterized as seeking to establish within a split field of inquiry a theory of strong democratic law, but, in the absence of a convincing account of the nature of democracy and its relationship with law, the project is judged to be unfulfilled. (shrink)

The pluralist turn in jurisprudence has led to a search for new ways of thinking about law. The relationships between state law and other legal orders such as international, customary, transnational or indigenous law are particularly significant in this development. Collecting together new work by leading scholars in the field, this volume considers the basic questions about what would be an appropriate theoretical response to this shift: how precisely is it to be undertaken? Is it called for by developments in (...) legal practice or are these adequately addressed by current legal theory? What normative challenges are raised, and what fresh promises might the pluralist turn hold? What distinctive insights can it offer for theorising about law? This book presents a rich variety of resources drawn from a number of theoretical approaches and demonstrates how they might be brought together to generate an increasingly important pluralist jurisprudence. (shrink)

Is a human more conscious than an octopus? In the science of consciousness, it’s oftentimes assumed that some creatures (or mental states) are more conscious than others. But in recent years, a number of philosophers have argued that the notion of degrees of consciousness is conceptually confused. This paper (1) argues that the most prominent objections to degrees of consciousness are unsustainable, (2) examines the semantics of ‘more conscious than’ expressions, (3) develops an analysis of what it is for a (...) degreed property to count as degrees of consciousness, and (4) applies the analysis to various theories of consciousness. I argue that whether consciousness comes in degrees ultimately depends on which theory of consciousness turns out to be correct. But I also argue that most theories of consciousness entail that consciousness comes in degrees. (shrink)

This paper examines the idea of "objective phenomenology," or a way of understanding the phenomenal character of conscious experiences that doesn’t require one to have had the kinds of experiences under consideration. My central thesis is that structural facts about experience—facts that characterize purely how conscious experiences are structured—are objective phenomenal facts. I begin by precisifying the idea of objective phenomenology and diagnosing what makes any given phenomenal fact subjective. Then I defend the view that structural facts about experience are (...) objective. I also argue that structural facts about experience, despite being objective, nevertheless still give rise to an explanatory gap. (shrink)

This book offers an exciting re-interpretation of Auguste Comte, the founder of French sociology. Following the development of his philosophy of positivism, Comte later focused on the importance of the emotions in his philosophy resulting in the creation of a new religious system, the Religion of Humanity. Andrew Wernick provides the first in-depth critique of Comte's concept of religion and its place in his thinking on politics, sociology and philosophy of science. He places Comte's ideas in the context of (...) post-1789 French political and intellectual history, and of modern philosophy, especially postmodernism. Wernick relates Comte to Marx and Nietzsche as seminal figures of modernity and examines key features of modern and postmodern French social theory, tracing the inherent flaws and disintegration of Comte's system. Wernick offers original and fascinating insights in this rich study which will attract a wide audience from sociologists and philosophers to cultural theorists and historians. (shrink)

One of the key achievements of critical realism has been to expose the modernist myth of universal reason, which holds that authentic knowledge claims must be objectively ‘pure’, uncontaminated by the subjectivity of local place, specific time and particular culture. Wright aims to address the lack of any substantial and sustained engagement between critical realism and theological critical realism with particular regard to: (a) the distinctive ontological claims of Christianity; (b) their epistemic warrant and intellectual legitimacy; and (c) scrutiny of (...) the primary source of the ontological claims of Christianity, namely the historical figure of Jesus of Nazareth. As such, it functions as a prolegomena to a much needed wider debate, guided by the under-labouring services of critical realism, between Christianity and various other religious and secular worldviews. This important new text will help stimulate a debate that has yet to get out of first gear. This book will appeal to academics, graduate and post-graduate students especially, but also Christian clergy, ministers and informed laity, and members of the general public concerned with the nature of religion and its place in contemporary society. (shrink)

It is difficult for prioritarians to explain the degree to which justice requires redress for misfortune in a way that avoids imposing unreasonably high costs on more advantaged individuals whilst also economising on intuitionist appeals to judgment. An appeal to hypothetical insurance may be able to solve the problems of cost and judgment more successfully, and can also be defended from critics who claim that resource egalitarianism is best understood to favour the ex post elimination of envy over individual endowments.u.

Field theories have been central to physics over the last 150 years, and there are several theories in contemporary physics in which physical fields play key causal and explanatory roles. This paper proposes a novel field trope-bundle (FTB) ontology on which fields are composed of bundles of particularized property instances, called tropes and goes on to describe some virtues of this ontology. It begins with a critical examination of the dominant view about the ontology of fields, that fields are properties (...) of a substantial substratum. (shrink)

In this paper I explore the pedagogical and political shift marked by the meaning and practice of diversity offered through New Labour education policy texts, specifically, the policy and practice of personalized learning (or personalization). The aim of this paper is to map the ways in which diversity relays and mobilizes a set of neoliberal positions and relationships in the field of education and seeks to govern education institutions and education users through politically circulating norms and values. These norms and (...) values, I want to argue, echo and redeem the kinds of frameworks, applications and rationalities typically aligned with modes of neoliberal or advanced liberal governance, e.g. marketization, monetarization, atomization and deregulation. I conclude the paper by considering how diversity in education renders problematic conventional antinomies of the citizen and consumer, public and private, state and civil society, etc., and forces us to confront the rhizomatic character of contemporary governance and education in the era of neoliberalism. (shrink)

Baghdad, California -- Calm down -- Clearing the dust -- Proof -- The big bang -- Evolution -- Evil -- Religion -- A crisis of reason.

In her influential article published in 2016, Alexandra Walsham, Professor of Modern History at the University of Cambridge, coined the metaphor that ‘Archives are the factories and laboratories of the historian’. Traditionally viewed as neutral storehouses of official records passively awaiting historians’ scrutiny, conceptions of archives have expanded in recent decades. Archives are now understood as complex social and cultural entities that actively participate in shaping understandings of the past. This paper examines shifting perspectives on the nature and functions of (...) archives through a critical analysis of key debates. Specifically, this paper adopts a hermeneutic lens to critically engage Walsham’s metaphor and move beyond its potential limitations through situated analysis and interpretation. This paper explores how archives are actively implicated in knowledge construction through their contents, organisational frameworks, and interactions with historians. Recognising archives as fragmented, culturally contingent remnants that mediate engagement with the past, the paper calls for collaborative, reflective approaches between archivists and historians. The paper also acknowledges historians’ subjective interpretive roles while advocating consultation of archivists’ contextual expertise. Ultimately, it advances methodological discussions on writing history through a nuanced appreciation of archives as dynamic mediators within historical research, not transparent conduits neutrally supplying facts. (shrink)

The advent of the Web is one of the defining technological events of the twentieth century, yet its impact on the fundamental questions of philosophy has not yet been explored, much less systematized. The Web, as today implemented on the foundations of the Internet, is broadly construed as the space of all items of interest identified by URIs. Originally a space of linked hypertext documents, today the Web is rapidly evolving as a universal platform for data and computation. Even swifter (...) is the Web‐driven transformation of many previously unquestioned philosophical concepts of privacy, belief, intelligence, cognition, and even embodiment in surprising ways. The ensuing essays in this collection hope to explore the philosophical foundation of the World Wide Web and open the debate on whether or not the changes caused by the Web to technology and society warrant the creation of a philosophy of the Web. (shrink)

Within the field of education management studies, recent reforms promoting devolution and choice are often seen to provide exciting new opportunities. It is claimed that the 'new' education management, with its emphasis on site-based decision-making and consumer accountability, will enable headteachers and principals to 'take control' of their schools and make them more productive environments in which to work and study. However, our review of research findings from five different countries that are putting in place devolution and choice policies suggests (...) that these new opportunities are more illusory than real. Positioned between the competing demands of the state and the market, school managers are becoming increasingly isolated from colleagues and classrooms - leading to a growing divergence between the managers and the managed. The paper considers the implication of recent developments for managers in general and for women managers in particular and concludes by discussing the relationship between the personalisation of responsibility and the legitimation of crises within the state and public education. (shrink)

This chapter explores two kinds of testimonial trust, what we call ‘evidential trust’ and ‘non-evidential trust’ with the aim of asking how testimonial trust could provide epistemic reasons for belief. We argue that neither evidential nor non-evidential trust can play a distinctive role in providing evidential reasons for belief, but we tentatively propose that non-evidential trust can in some circumstances provide a novel kind of epistemic reason for belief, a reason of epistemic facilitation. The chapter begins with an extensive discussion (...) of standard accounts of both kinds of trust and criticises especially the standard accounts of non-evidential trust. A new account of non-evidential trust is offered that avoids a number of difficulties that plague the standard accounts by rejecting what we call ‘attitude-liability assumptions’. (shrink)