The essays in this volume are all concerned with the arguments about law as a system of rule-based decision-making,particularly the ideas advanced by legal philosopher Frederick Schauer. Schauer's work has not only helped revive interest in legal formalism but has also helped relocate arguments about the relationship between posited rules and morality. The contributors to this volume, themselves distinguished theorists, have concentrated on three aspects of Schauer's work: the nature of jurisprudential description; his theory of presumptive positivism; (...) and the application of his theory of rule-based decision-making to other areas of legal and moral thought. Contributors: Larry Alexander, Brian Bix, Philip Bobbitt, Marianne Constable, Michael C. Dorf, Jeremy Elkins, Claire Oakes Finkelstein, Leo Katz, Jason Johnston, Dennis Patterson. (shrink)

Recent critics of the Roberts Court chide it for its lack of regard for precedent. Fred Schauer faults these critics for erroneously assuming that a rule of stare decisis formerly played a significant role in the Supreme Court's decision-making. In fact, it has long played only a rare and weak role in the Court's work. Nonetheless, according to Schauer, the critics are to be thanked for invigorating a needed debate about the importance of "stability, consistency, settlement, reliance, (...) notice, and predictability" in the Court's decisions. This article argues that Schauer exaggerates the weakness of stare decisis in the Court's practices; and that his call for a public debate on the merits of the norm of stare decisis can only weaken it. (shrink)

Rules are a central component of such diverse enterprises as law, morality, language, games, religion, etiquette, and family governance, but there is often confusion about what a rule is, and what rules do. Offering a comprehensive philosophical analysis of these questions, this book challenges much of the existing legal, jurisprudential, and philosophical literature, by seeing a significant role for rules, an equally significant role for their stricter operation, and making the case for rules as devices for the allocation of power (...) among decision-makers. (shrink)

David A. J. Richards, Sex, Drugs, Death and the Law: An Essay on Human Rights and Overcriminalization Totowa, N.J.: Rowman and Littlefield, 1982, xii + 316 pp.

This collection of essays by eminent philosopher Fred Dretske brings together work on the theory of knowledge and philosophy of mind spanning thirty years. The two areas combine to lay the groundwork for a naturalistic philosophy of mind. The fifteen essays focus on perception, knowledge, and consciousness. Together, they show the interconnectedness of Dretske's work in epistemology and his more contemporary ideas on philosophy of mind, shedding light on the links which can be made between the two. The first (...) section of the book argues the point that knowledge consists of beliefs with the right objective connection to facts; two essays discuss this conception of knowledge's implications for naturalism. The next section articulates a view of perception, attempting to distinguish conceptual states from phenomenal states. A naturalized philosophy of mind, and thus a naturalized epistemology, is articulated in the third section. This collection will be a valuable resource for a wide range of philosophers and their students, and will also be of interest to cognitive scientists, psychologists, and philosophers of biology. (shrink)

Legal decisions and theories are frequently condemned as formalistic, yet little discussion has occurred regarding exactly what the term "'formalism" means. In this Article, Professor Schauer examines divergent uses of the term to elucidate its descriptive content. Conceptions offormalism, he argues, involve the notion that rules constrict the choice of the decisionmaker. Our aversion to formalism stems from denial that the language of rules either can or should constrict choice in this way. Yet Professor Schauer argues that this (...) aversion to formalism should be rethought: At times language both can and should restrict decisionmakers. Consequently, the term "'formalistic" should not be used as a blanket condemnation of a decisionmaking process; instead the debate regarding decision according to rules should be confronted on its own terms. (shrink)

This paper proposes a third meditation-category—automatic self-transcending— to extend the dichotomy of focused attention and open monitoring proposed by Lutz. Automaticself-transcending includes techniques designed to transcend their own activity. This contrasts with focused attention, which keeps attention focused on an object; and open monitoring, which keeps attention involved in the monitoring process. Each category was assigned EEG bands, based on reported brain patterns during mental tasks, and meditations were categorized based on their reported EEG. Focused attention, characterized by beta/gamma activity, (...) included meditations from Tibetan Buddhist, Buddhist, and Chinese traditions. Open monitoring, characterized by theta activity, included meditations from Buddhist, Chinese, and Vedic traditions. Automaticself-transcending, characterized by alpha1 activity, included meditations from Vedic and Chinese traditions. Between categories, the included meditations differed in focus, subject/object relation, and procedures. These findings shed light on the common mistake of averaging meditations together to determine mechanisms or clinical effects. (shrink)

"Taken as a trilogy, _consent not to be a single being_ is a monumental accomplishment: a brilliant theoretical intervention that might be best described as a powerful case for blackness as a category of analysis."—Brent Hayes Edwards, author of _Epistrophies: Jazz and the Literary Imagination_ In _The Universal Machine_—the concluding volume to his landmark trilogy _consent not to be a single being_—Fred Moten presents a suite of three essays on Emmanuel Levinas, Hannah Arendt, and Frantz Fanon in which he (...) explores questions of freedom, capture, and selfhood. In trademark style, Moten considers these thinkers alongside artists and musicians such as William Kentridge and Curtis Mayfield while interrogating the relation between blackness and phenomenology. Whether using Levinas's idea of escape in unintended ways, examining Arendt's antiblackness through Mayfield's virtuosic falsetto and Anthony Braxton's musical language, or showing how Fanon's form of phenomenology enables black social life, Moten formulates blackness as a way of being in the world that evades regulation. Throughout _The Universal Machine_—and the trilogy as a whole—Moten's theorizations of blackness will have a lasting and profound impact. (shrink)

In modern jurisprudence it is taken as axiomatic that John Austin's sanction-based account of law and legal obligation was demolished in H.L.A. Hart's The Concept of Law, but Hart's victory and the deficiencies of the Austinian account may not be so clear. Not only does the alleged linguistic distinction between being obliged and having an obligation fail to provide as much support for the idea of a sanction-independent legal obligation as is commonly thought, but the soundness of Hart's claims, as (...) well as the claims of many legal theorists who have followed him, depend on a contested view of the nature of legal theory. If the task of a theory of law, as Joseph Raz and others have influentially argued, is to identify the essential features of the concept of law, then the theoretical possibility, if not the empirical reality, of a sanction-free legal system is what is most important. But if the task of a theory of law is to provide philosophical and theoretical illumination of law as it exists and as it is experienced, then a theory of law that fails to give a central place to law's coercive reality may for that reason be deficient as a theory of law. The question of the soundness of the Austinian account, therefore, may be a function of the answer to the question of what a theory of law is designed to accomplish. (shrink)

"Taken as a trilogy, _consent not to be a single being_ is a monumental accomplishment: a brilliant theoretical intervention that might be best described as a powerful case for blackness as a category of analysis."—Brent Hayes Edwards, author of _Epistrophies: Jazz and the Literary Imagination_ In _Stolen Life_—the second volume in his landmark trilogy _consent not to be a single being_—Fred Moten undertakes an expansive exploration of blackness as it relates to black life and the collective refusal of social (...) death. The essays resist categorization, moving from Moten's opening meditation on Kant, Olaudah Equiano, and the conditions of black thought through discussions of academic freedom, writing and pedagogy, non-neurotypicality, and uncritical notions of freedom. Moten also models black study as a form of social life through an engagement with Fanon, Hartman, and Spillers and plumbs the distinction between blackness and black people in readings of Du Bois and Nahum Chandler. The force and creativity of Moten's criticism resonate throughout, reminding us not only of his importance as a thinker, but of the continued necessity of interrogating blackness as a form of sociality. (shrink)

Philosophical debates over statistical evidence have long been framed and dominated by L. Jonathan Cohen's Paradox of the Gatecrasher and a related hypothetical example commonly called Prison Yard. These examples, however, raise an issue not discussed in the large and growing literature on statistical evidence – the question of what statistical evidence is supposed to be evidence of. In actual practice, the legal system does not start with a defendant and then attempt to determine if that defendant has committed some (...) unspecified or under-specified act, as these examples appear to suppose. Rather, both criminal and civil litigation start with a sufficiently specified act and then attempt to determine if the defendant has committed it. And when we start with a more fully specified act, the statistics look very different, and these prominent examples no longer present the paradox they are claimed to support. Examining the issue of specification, however, does more than simply undercut the prominent examples in a long and extensive literature. The examination also raises normative issues challenging the legal system's traditional reluctance to base liability on the conjunction of probabilities. (shrink)

What is it for something to have a nature? And what is it for law to have a nature? Analysis of the concept of law has often been taken to be a search for the essential features of law, but it is not clear that the nature of a phenomenon or artifact is better explained by its essential features than by its common ones. And it is not clear that necessary truths have more explanatory value than typical truths. Especially -- (...) but not necessarily - if we recognize the possibility that law is a cluster concept, the value of explaining the widespread but not strictly necessary features of law in explaining law itself becomes more apparent. The jurisprudential project of differentiating law from other social phenomena is an important one, but the distinction may be a fuzzy one and not susceptible either to sharp demarcation or to specification of essential features of law that will assist in differentiation. But if we inquire into what typically or usually or almost always characterizes law rather than what necessarily characterizes it, we may make genuine progress in distinguishing law from the social phenomena to which it is adjacent but with which it is not congruent. (shrink)

By contributing a few hundred dollars to a charity like UNICEF, a prosperous person can ensure that fewer poor children die, and that more will live reasonably long, worthwhile lives. Even when knowing this, however, most people send nothing, and almost all of the rest send little. What is the moral status of this behavior? To such common cases of letting die, our untutored response is that, while it is not very good, neither is the conduct wrong. What is the (...) source of this lenient assessment? In this contentious new book, one of our leading philosophers argues that our intuitions about ethical cases are generated not by basic moral values, but by certain distracting psychological dispositions that all too often prevent us from reacting in accord with our commitments. Through a detailed look at how these tendencies operate, Unger shows that, on the good morality that we already accept, the fatally unhelpful behavior is monstrously wrong. By uncovering the eminently sensible ethics that we've already embraced fully, and by confronting us with empirical facts and with easily followed instructions for lessening serious suffering appropriately and effectively, Unger's book points the way to a compassionate new moral philosophy. (shrink)

There has been much interest in conspiracy theories (CTs) amongst philosophers in recent years. The aim of this paper will be to apply some of the philosophical research to issues in political theory. I will first provide an overview of some of the philosophical discussions about CTs. While acknowledging that particularism is currently the dominant position in the literature, I will contend that the ‘undue scepticism problem’, a modified version of an argument put forward by Brian Keeley, is an important (...) general objection to many CTs. This in turn leads to some substantial conclusions for liberal political philosophy, as the undue scepticism problem sets up a strong argument against non-liberal alternatives to liberal thought. I shall argue that we are justified in having far more doubt about the reliability of official sources in non-liberal societies, and it is legitimate to be more sceptical about claims designed to bolster non-liberal politics. Moreover, because scepticism is often more warranted in non-liberal societies, this may provide the possibility for the state to be stable, even if it is highly tyrannical or ineffective. These considerations are not intended to be decisive, but raise unresolved questions about the viability of non-liberal politics. (shrink)

Pierluigi Chiassoni’s Interpretation without Truth1 is a profoundly important book. And the book is important not only because of its deep, thorough, and impeccably fair analysis of numerous perspe...

Ideal for undergraduate courses in philosophy of law, this comprehensive anthology examines such topics as the concept of law, the dispute between natural law theorists and legal positivists, the relations between law and morality, criminal responsibility and legal punishment, the rights of the individual against the state, justice and equality, and legal evidence as compared with scientific evidence. The readings have been selected from both philosophy and law journals and include classic texts, contemporary theoretical developments, and well-known recent court cases. (...) The text features extensive introductions that make even the most profound writings accessible to undergraduates. (shrink)

For much of its history, philosophy was not merely a theoretical discipline but a way of life, an "art of living." This practical aspect of philosophy has been much less dominant in modernity than it was in ancient Greece and Rome, when philosophers of all stripes kept returning to Socrates as a model for living. The idea of philosophy as an art of living has survived in the works of such major modern authors as Montaigne, Nietzsche, and Foucault. Each of (...) these writers has used philosophical discussion as a means of establishing what a person is and how a worthwhile life is to be lived. In this wide-ranging, brilliantly written account, Alexander Nehamas provides an incisive reevaluation of Socrates' place in the Western philosophical tradition and shows the importance of Socrates for Montaigne, Nietzsche, and Foucault. Why does each of these philosophers—each fundamentally concerned with his own originality—return to Socrates as a model? The answer lies in the irony that characterizes the Socrates we know from the Platonic dialogues. Socratic irony creates a mask that prevents a view of what lies behind. How Socrates led the life he did, what enabled or inspired him, is never made evident. No tenets are proposed. Socrates remains a silent and ambiguous character, forcing readers to come to their own conclusions about the art of life. This, Nehamas shows, is what allowed Montaigne, Nietzsche, and Foucault to return to Socrates as a model without thereby compelling them to imitate him. This highly readable, erudite study argues for the importance of the tradition within Western philosophy that is best described as "the art of living" and casts Montaigne, Nietzsche, and Foucault as the three major modern representatives of this tradition. Full of original ideas and challenging associations, this work will offer new ways of thinking about the philosophers Nehamas discusses and about the discipline of philosophy itself. (shrink)