This book addresses three major questions about law and legal systems: (1) What are the defining and organizing forms of legal institutions, legal rules, interpretive methodologies, and other legal phenomena? (2) How does frontal and systematic focus on these forms advance understanding of such phenomena? (3) What credit should the functions of forms have when such phenomena serve policy and related purposes, rule of law values, and fundamental political values such as democracy, liberty, and justice? This is the first book (...) that seeks to offer general answers to these questions and thus gives form in the law its due. The answers not only provide articulate conversancy with the subject but also reveal insights into the nature of law itself, the oldest and foremost problem in legal theory and allied subjects. (shrink)

The author presents a relatively formal theory of the rule of law which includes three basic components: conceptual, institutional and axiological. He then emphasizes the differences between a formal and a substantive theory of the rule of law and highlights the advantages and limits of the former. Finally, the author indicates the importance of this type of theory, namely the values it implies such as predictability, justified reliance, autonomous choice, minimization of disputes and legitimacy.**.

Truth is a fundamental objective of adjudicative processes; ideally, substantive as distinct from formal legal truth. But problems of evidence, for example, may frustrate finding of substantive truth; other values may lead to exclusions of probative evidence, e.g., for the sake of fairness. Jury nullification and jury equity. Limits of time, and definitiveness of decision, require allocation of burden of proof. Degree of truth-formality is variable within a system and across systems.

... four most important American legal theorists of the last hundred years. Of the others, Oliver Wendell Holmes Jr., Roscoe Pound, and Karl N. Llewellyn, ...

Truth is a fundamental objective of adjudicative processes; ideally, ‘substantive’ as distinct from ‘formal legal’ truth. But problems of evidence, for example, may frustrate finding of substantive truth; other values may lead to exclusions of probative evidence, e.g., for the sake of fairness. ‘Jury nullification’ and ‘jury equity’. Limits of time, and definitiveness of decision, require allocation of burden of proof. Degree of truth-formality is variable within a system and across systems.

Robert S. Summers is a distinguished legal theorist whose work has had significant influence in Europe as well as the United States. The study of form and substance in law, the theme of this collection, marks many of his most distinctive contributions to law and legal philosophy over four decades.

.The author summarizes the essential elements of a general theory he is developing which he calls “The Formal Character of Law.” He explains that law's formal character is a potentially major branch of legal theory that is still relatively unexplored. In his view, it is possible to identify formal attributes in legal rules, other basic legal constructs such as interpretive method, the principles of stare decisis, legal reasons, and legislative and adjudicative processes, and a legal system viewed as a whole. (...) For example, a legal rule has, in varying degrees, such formal attributes as generality, definiteness, and simplicity. Such attributes are formal in the sense that they apply to or accommodate highly variable content and do not prescribe or proscribe content. Of course, legal phenomena have other characteristics besides their formality. The author's main technique for developing his theory is to address a common set of questions to the varied formal attributes of , , and above. Among other things, the answers to these questions further explicate how law is formal, demonstrate that law is not merely a means of serving problem‐specific policy but also serves formal values , treats the relations between form and content—specially how good form begets good content and bad form bad content, explores the design and implementation of appropriate formality—its “anatomy and physiology,” and analyses the “pathology” of legal form including not only the “formalistic” , but also the “sub‐stantivistic,” and shows how the overall theory is important both jurisprudentially and in practical ways. (shrink)

Introduction Ihe name of George Lewis first became known to me when I began to listen to traditional jazz bands, primarily Ken Colyer's, in England in the ...

Notes on Criticism in Legal Philosophy ROBERT S. SUMMERS I. INTRODUCTION Legal philosophers criticize and evaluate as well as originate and expound. ...

. The author aims at defining the borderlines of the concept “rule of law.” This has been often inflated to encompass several dimensions of an ideal legal order. The author on the contrary believes that the “rule of law” ought to be a “thin” ideal. As a matter of fact, when the “rule of law” signifies almost any dimension of an ideal legal order, it comes to stand for nothing essential in particular. Deflation is then advocated for the rehabilitation of (...) the normative content of the “rule of law.” This means that the “rule of law” should be defined as a concept covering only some well delimited dimensions of an ideal legal order. (shrink)

The author aims at defining the borderlines of the concept “rule of law.” This has been often inflated to encompass several dimensions of an ideal legal order. The author on the contrary believes that the “rule of law” ought to be a “thin” ideal. As a matter of fact, when the “rule of law” signifies almost any dimension of an ideal legal order, it comes to stand for nothing essential in particular. Deflation is then advocated for the rehabilitation of the (...) normative content of the “rule of law.” This means that the “rule of law” should be defined as a concept covering only some well delimited dimensions of an ideal legal order. (shrink)

The author explains that there is scope for a general theory about the nature and place of form in the fundamentals of law. Form organizes the institutions, rules and other varieties of law, and the system as a whole. All such constructs have non‐formal elements, too, but form unifies each construct and provides its criteria of identity. Appropriate form makes a system of law possible. It also tends to beget good content in the law. It is indispensable to the basic (...) needs of a legal system, and when such an end is organizational, as with democracy, liberty, and the rule of law, form is end as well as means. (shrink)

The four theses of this paper are: that an appropriate organizational form is used to design, define, and organize a functional unit of a legal system, that the functional units of a legal system, contrary to the emphasis in Hart and Kelsen, consist of far more than rules, and include institutions, interpretive and other methodologies, sanctions and remedies, and more, that frontal and systematic study of the forms of these units is a major avenue for advancing understanding of them as (...) duly organized wholes, and, that such study reveals that much credit is due these forms, along with complementary material or other components of the units, for values realized through law. (shrink)

A striking example is presented of a newly observed phenomenon in the ice‐covered Arctic Ocean that appears to be a consequence of changes in the physical forcing. In summer 2011, a massive phytoplankton bloom was observed north of the Bering Strait, between Russia and the United States, underneath pack ice that was a meter thick—in conditions previously thought to be inconducive for harboring such blooms. It is demonstrated that the changing ice cover, in concert with the resulting heat exchange between (...) the atmosphere and ocean, likely led to this paradigm shift at the base of the food chain by altering the supply of nutrients and sunlight. Such early‐season under‐ice blooms have the potential to profoundly alter the Arctic food web. (shrink)

In separate reviews of The Copernican Question published in the Summer 2012 issue of this journal, Noel Swerdlow and John Heilbron find little that meets their approval while failing to provide readers with a full and accurate summary of the book’s major claims and arguments.* The reviewers engage in an exercise in deconstructive surgery, essentially breaking down and reconstituting the work into separate studies. Swerdlow, who devotes most of his twenty-five page treatment to chapter 3 (with brief side-glances at the (...) introduction, chapters 1, 8, and 11), leaves the impression that my book is almost entirely about Copernicus. Heilbron, who confines himself mostly to what I have to say about Galileo, identifies a .. (shrink)

Ca. 40 published papers from a summer institute in the German Democratic Republic in 1988.

The essays in this book treat important aspects of most of the major themes in contemporary philosophy of law and legal theory. All reveal the distinctive authenticity of the author's work, for he is not only a reputable legal theorist but an internationally known scholar of private law, and for many years chair of the Bielefelder Kreis, an international group of legal theorists who have jointly authored major works comparing methodologies of statutory interpretation and precedent.

Research suggests that the explicit reasoning we offer to ourselves and to others is often rationalization, that we act instead on instincts, inclinations, stereotypes, emotions, neurobiology, habits, reactions, evolutionary pressures, unexamined principles, or justifications other than the ones we think we’re acting on, then we tell a post hoc story to justify our actions. This is troubling for views of moral progress according to which moral progress proceeds from our engagement with our own and others’ reasons. I consider an account (...) of rationalization, based on Robert Audi’s, to make clear that rationalization, unlike simple lying, can be sincere. Because it can be sincere, and because we also have a desire to be consistent with ourselves, I argue that rationalization sets us up for becoming better people over time, and that a similar case can be made to explain how moral progress among groups of people can proceed via rationalization. (shrink)

Research suggests that the explicit reasoning we offer to ourselves and to others is often rationalization, that we act instead on instincts, inclinations, stereotypes, emotions, neurobiology, habits, reactions, evolutionary pressures, unexamined principles, or justifications other than the ones we think we’re acting on, then we tell a post hoc story to justify our actions. This is troubling for views of moral progress according to which moral progress proceeds from our engagement with our own and others’ reasons. I consider an account (...) of rationalization, based on Robert Audi’s, to make clear that rationalization, unlike simple lying, can be sincere. Because it can be sincere, and because we also have a desire to be consistent with ourselves, I argue that rationalization sets us up for becoming better people over time, and that a similar case can be made to explain how moral progress among groups of people can proceed via rationalization. (shrink)

In late September 1838, Darwin read Malthus's Essay on Population, which left him with “a theory by which to work.”115 Yet he waited some twenty years to publish his discovery in the Origin of Species. Those interested in the fine grain of Darwin's development have been curious about this delay. One recent explanation has his hand stayed by fear of reaction to the materialist implications of linking man with animals. “Darwin sensed,” according to Howard Gruber, “that some would object to (...) seeing rudiments of human mentality in animals, while others would recoil at the idea of remnants of animality in man.”116 With this link closed, Darwin hung the materialist chain around his own neck, where it rested most uncomfortably. Stephen Gould, supporting Gruber's argument, finds evidence for this reconstruction in Darwin's M and N notebooks, whichinclude many statements showing that he espoused but feared to expose something he perceived as far more heretical than evolution itself: philosophical materialism-the postulate that matter is the stuff of all existence and that all mental and spiritual phenomena are its by-products. No notion could be more upsetting to the deepest traditions of Western thought than the statement that mind-however complex and powerful-is simply a product of brain.117The proferred hypothesis suggests, then, that Darwin was acutely sensible of the social consequences of equating men with animals and therefore mind with brian, and that he thus shied from publically revealing his views until the intellectual climate became more tolerant.The history I have examined makes this hypothesis implausible. Even if Darwin warily explored the implications of his emerging theory in his notebooks, his subsequent study of Fleming, Wells, Brougham, and Kirby should have quieted any trepidation. If these natural theologians did not flinch at seeing human reason prefigured in the mind of a worm, should Darwin have? Moreover, he recognized in his M notebook that the thesis of evolutionary continuity between men and animals did not require an explicit avowal of his conviction that brain was the agent of thought.118 And in any case, his materialism was of a rather benign sort; at least he so expressed it in an annotation in Abercrombie's Inquiries concerning the Intellectual Powers (1838): “By materialism I mean, merely the intimate connection of thought with form of brain — like kind of attraction with nature of element.”119 This belief would have held little terror for British intellectuals, who were quite familiar — some even comfortable-with Locke's anti-Cartesian argument that there was nothing contradictory in supposing God could make matter to think.120 Finally, even if the intellectual atmosphere of early nineteenth-century Britain were inhospitable to Darwin's brand of materialism, there is little reason to believe he breathed a different air at mid-century while preparing his manuscript.That Darwin should not have feared suspicions of materialism, of course, does not mean that he did not. But I think there were other, more persistent sources of anxiety that kept him from rushing to publish: namely, the several conceptual obstacles he had to overcome if his theory of evolution by natural selection were to be made scientifically acceptable. Prominent among these were the problems surrounding his changing notions of instinct.The inertia of his older ideas about instinct at first made it hard for Darwin to gauge how far the theory of natural selection might be applied to behavior. By the early 1840s he finally felt ready to meet the challenge of the natural theologians by providing a naturalistic explanation for the wonderful instincts of animals. In his “Essays” of 1842 and 1844 one sort of instinct is, however, not considered-that of neuter insects. Yet Darwin seems to have appreciated the difficulties such instincts entailed at least by 1843, when he read Kirby and Spence. He simply required time to work out a solution to a problem he initially perceived as “fatal to my whole theory.” Even while writing the “Species Book” in the summer of 1857, he was still juggling several possible solutions compatible with natural selection. It was only a short time before he actually turned to work on the Origin of Species that he appears to have settled on a single explanation for the difficulties posed by the instincts of worker bees and ants. The force of his theory of community selection snapped the last critical support of the creationist hypothesis and, conveniently enough, also fractured the generalized Lamarckian account of the evolution of behavior. These results were worth waiting for. (shrink)

The reductive nature of Kincaid's undertaking comes into sharper focus when we compare his kind of critical inquiry with that, say, of [Sheldon] Sacks or [Ralph] Rader. Kincaid concludes where they begin. For Sacks, the identification of some type, such as satire, is what initiates the critical process. What then remains is to move beyond type, which exists at the highest level of generality, to form and finally to those detailed analyses which will account for the peculiar powers of unique (...) works. His types, as he says, are "only elementary distinctions," and he adds that "at some point in an adequate criticism of a single literary work, we will inevitably be discussing those variations which distinguish a particular literary work from all other literary works of its class, even if that class has been defined according to the most subtle and intricate combination of variables possible."1 Similarly for Rader, our intuitions about formal principles and intentions are but first steps in critical inquiry. "My theory, " he says, "attempts not to establish 'general laws' . . . but to render explicit the structural features of our tacit experiences of literature in a way that will allow us to bring all its implications to bear simultaneously upon our explanation of any particular literary work."2 Such procedures as these, which are designed to give us particular knowledge, are ruled out by Kincaid's program, the most specific formal principle of which is something quite general: the competition among narrative patterns. There is finally, then, very little knowledge to be shared, for our inquiries will always arrive at the same conclusion. Although readers, in his view, can intend one thing rather than another, writers cannot, and this assumption that agents are somehow set apart from the other members of the species means, I suspect, that Kincaid is right about one thing: his effort to mediate does indeed place him in a "no-man's land." · 1. Sheldon Sacks, Fiction and the Shape of Belief , pp. 25-26 n.· 2. Rader, "Explaining Our Literary Understanding," Critical Inquiry 1 : 905. Robert Denham, editor of Northrop Frye: An Enumerative Bibliography and the forthcoming Northrop Frye on Culture and Literature , is associate professor and chairman of the department of English at Emory and Henry College. In this essay Robert Denham replies to James R. Kincaid's "Coherent Readers, Incoherent Texts" Critical inquiry, Summer 1977. (shrink)

This book completes the Clarendon Aristotle Series edition of the Politics. One might assume that, since David Keyt’s contribution is the last of the four on the Politics, when Aristotle scholars agreed to write these volumes, he was fourth in line and so got stuck with Politics V–VI. Surely, one might think, few would choose Politics V–VI over Politics I–II, with its fascinating discussions of the fundamental nature of the polis, the infamous chapters on slavery, and the critique of the (...) communism of Plato’s Republic; or over Politics VII–VIII, which contains Aristotle’s presentation of the best political system; or even over Politics III–IV, with its important classification and discussion of the different types of political systems. But in fact, Keyt had been thinking about writing a commentary on Politics V–VI for some time: “The idea of writing a commentary on Aristotle’s study of faction and constitutional change was formed in the late 1960s during the period of political unrest in the United States connected with the Vietnam War. In the summer of 1971 I discussed the possibility of doing this volume in the Clarendon Aristotle Series with John Ackrill”. We can be happy that Keyt and Ackrill returned, over two decades later, to the idea of such a commentary, because the result is an excellent addition to the Clarendon Aristotle Series. (shrink)

Abstract Although the concept of “groundedness/autochthony“ ( Bodenständigkeit ) in Heidegger's writings receives far less scholarly attention than, for example, that of “releasement“ ( Gelassenheit ), a careful examination of the famous “ Gelassenheit “ speech of 1955 demonstrates that, in fact, Bodenständigkeit is the core concept around which everything else turns. Moreover, in the “ Gelassenheit “ speech and the writings on Hebel that follow, Heidegger understands Bodenständigkeit to be, fundamentally, something made possible by language in its particularities of (...) tradition and locale. Thus, there is an intriguing continuity of meaning between that concept and the concept as it was used phenomenologically in his writings from the summer 1924 course up to Sein und Zeit. (shrink)

Ever since Ph. Kohlmann in his Teubner edition of the Thebaid asserted that he had used cod. Parisinus 13046, one of the MSS. formerly of St. Germain des Prés, this MS. has been known by reputation to his successors and other students of Statian textual problems, and, designed by the letter S, it is alluded to and cited in the edition of Garrod and in the newer Teubner of Klotz, which appeared in 1908. The two later editors confessed that they (...) themselves had not examined the MS., but were relying upon the information accessible in Kohlmann's edition. Doubts having been cast from more than one source upon Kohlmann's accuracy and the soundness of his reports, while at the same time the importance of S as a member of the ω group was emphasized by Mr. Garrod and Dr. Klotz in spite of the incomplete evidence at their disposal, it seemed worth while to the writer to examine the MS. for himself and to make a thorough collation of it. This has been done in the summer of 1932. (shrink)

Introduction -- Prelude: from gesture to virtual agency -- Foundations for a theory of agency -- Virtual environmental forces and gestural energies: actants as agential -- Virtual embodiment: from actants to virtual human agents -- Virtual identity and actorial continuity -- Interlude I: from embodiment to subjectivity -- Staging virtual subjectivity -- Virtual subjectivity and aesthetically warranted emotions -- Staging virtual narrative agency -- Performing agency -- An integrative agential interpretation of Chopin's Ballade in F minor, op. 52 -- Interlude (...) II: hearing agency: a complex cognitive task -- Other perspectives on virtual agency -- Postlude. (shrink)