This paper argues that legal theorists should give up the pursuit of determining the mode of law's existence - whether in the form of rules, as in HLA Hart, or in the form of norms, as in Hans Kelsen. Attempting to determine the mode of law's existence results in two mistakes: first, it presupposes the possibility of content-determination (of rules or norms), resulting in a more (Kelsen) or less (Hart) stringent reference theory of meaning; second, it presupposes unproblematic access to (...) a sphere of brute reality upon which the existence of rules or norms is said to supervene. Both mistakes are illustrated by reference to a reading of Hans Kelsen's Pure Theory of Law and HLA Hart's The Concept of Law. Two alternatives for legal theory are offered: first, meta-analysis, as exemplified in the paper, whereby a theorist considers the puzzles and difficulties of taking a certain theoretical aim (in this paper, that of determining the mode of law's existence) and talking about it in specific ways (in this paper, using existence talk); and second, an ontology-free legal theory the task of which is to pursue the improvement of the role that legal work plays in the protection of the moral quality of the lives of individuals and communities. The foundations of an ontology-free legal theory are illustrated by reference to the pragmatic pluralism of Hilary Putnam's approach to ethics in his Ethics without Ontology. (shrink)

This paper argues that we need to go beyond norms and normativity in the study of social life. The main purpose of the paper is to offer concepts and resources for a study of familiarity and estrangement, which, it is argued, is better placed to remind us, as we constantly need to be reminded, of one the most difficult things about living together, namely, how we understand the world of another person and with what attitude we approach all that which (...) is unfamiliar to us. (shrink)

This paper offers an account of two political traditions. The first tradition is that of allegiance to abstract principles and procedures; the second is that of responsiveness to the needs of persons and communities. The first two parts of the paper describe some of the basic features of each tradition, while also paying attention to the problems and difficulties within them. The third part of the paper shows how we can see the same tension, i.e., between allegiance and responsiveness, at (...) play in the practice of public philosophy. The paper argues for the importance of maintaining a tension between the two traditions. Ultimately, the paper calls for more attention to be paid to the relationship between, on the one hand, how we understand law and pursue justice, and, on the other, how we practice public philosophy. (shrink)

This paper argues that the development of ethical education in law schools ought not to be restricted to the use of textual resources. In the first part of the paper, the continuing dominance of text as the object of analysis in legal theory, legal scholarship and legal practice is illustrated. The dangerous implications of this continuing dominance on the capacity to see and recognise the great variety and depth of suffering and vulnerability is also discussed. It is argued that recourse (...) ought to be had to those traditions of moral philosophy that emphasise the importance of cultivating vision as a form of moral discipline - a discipline, in turn, that can benefit a great deal from the use of non-textual resources, and in particular, from both the appreciation of and involvement in the visual and movement-based arts. In the second part of the paper the treatment of ethical education in the recent Carnegie Foundation for the Advancement of Teaching Report on Educating Lawyers is discussed. It is argued that we ought not to subsume the development of ethical education under the canopy of professionalism - a canopy already saturated with text, both in the form of the substantive and procedural law that is expected to be applied, and in the form of the evaluation of professional conduct in accordance with the relevant professional code. Finally, in the third part of the paper, a number of policy recommendations are made. Ultimately, the paper calls for an ethical education that combines both textual and non-textual resources. It is only via such a combination that law schools can provide sufficient opportunities for the range of ethical experiences that are required in order to enhance the effective development of the ethical imagination in law students. (shrink)

This paper offers some resources for the development of moral sensitivity in law schools and law firms. It does so, first, on the basis of a picture of legal life, which draws on the embodied-connectionist strand in cognitive science. Legal life requires role-differentiated behaviour, and immersion in these roles, and associated tasks, has the consequence that persons are oriented to notice only certain things rather than others (where those things will sometimes be morally relevant things to notice). Further, the lawyer-client (...) relationship is one characterised by the exercise of dominance, control and manipulation (by the lawyer) of a client dependent on the exercise of the lawyer's expertise. Moral education in law schools and law firms must help alleviate the problematic effects of these features of legal life on the moral sensitivity of persons. It can do so by the education of attention and encounter. Both terms are discussed and, by drawing on the Beyond Text in Legal Education project at the University of Edinburgh, associated pedagogical activities are described. Finally, the activities proposed, and their policy implications, are considered by reference to the wider concerns of both tertiary and professional legal education. (shrink)

This paper argues against two extreme attitudes to the history of a discipline: on the one hand, ignorance and dismissiveness; and on the other hand, canonisation. The ever-present challenge is to find a balance between these two extremes. The paper attempts to walk the middle way by offering an alternative history of theories of law. It does so by revealing the basic characteristics of theories of law that tend towards either the explanatory paradigm of discourse or of tradition. Discourse -oriented (...) theories tend to give explanatory priority to autonomous systems or orders of already articulated rules or norms. They also tend to conceptualise behaviour from the first person ex ante perspective, and tend to require explicit deliberation, even at the level of social conventions. The political value behind these theories tends to be the imposition of social order from above and the constraint of the power of officials by the rule of law. Tradition-oriented theories tend to give explanatory priority to the long-term activities of persons interacting in certain distinct contexts. They tend to conceptualise behaviour as consisting of embodied, though not completely unreflective, learning, resulting in the formation of certain skills and propensities. They also tend to focus on the transmission of social knowledge via the involvement of persons in certain contexts of interaction. The political value behind these theories is that of responsiveness and attention to the needs of the disadvantaged. The paper does not set out to evaluate the strengths or weaknesses of either explanatory paradigm. Rather, the aim is to offer an alternative history of the discipline of jurisprudence, with the hope that it encourages the construction of other such histories, thereby opening up possibilities for finding new insights in the works of the past. If, as it is argued, the formation of a jurisprudential orientation is at least partly dependent on how a legal theorist understands the history of jurisprudence, then offering alternative ways of seeing that history also carries with it the potential for renewing the discipline. (shrink)

Every description contains within it a qualifier that allows us to avoid the problem of descriptive regress, and thus allows us to use the description for various purposes. Descriptive regress occurs because no one description can be understood without referring to further descriptions, which themselves require unpacking by reference to further descriptions ad infinitum. There are no fundamental descriptions no descriptions that attain and keep some privileged ontological status. The qualifier works by invoking the normal circumstances in which the description (...) obtains. It is impossible to foresee and describe in advance all the circumstances that would not be normal and that would reveal to us when the description could not obtain. It is our common sense the sense we develop as members of communities, and a sense sometimes narrowed and specialized in certain forms of life of what set of normal circumstances are implied into the description that allows us to use descriptions for various purposes (e.g. for describing circumstances in which some normative consequence should follow if the description obtains). This theory of descriptions is particularly relevant to the analysis of the role of descriptions of behavior and behavioral concepts in law. Law, in order to enable the regulation and evaluation of human behavior, cannot do without behavioral foundations criteria for evaluation of behavior are always based on certain descriptions of behavior and behavioral concepts. The theory of descriptions developed explains how descriptions of behavior function, namely, their utility relies on the legal community's common sense of the qualifiers attaching to descriptions of behavior. But that theory also has a reformative agenda: we should not think that any one description or any one behavioral concept such as that of intentionality can do all the work for us, in every area of the law, and in respect of every single social phenomenon. We need, in other words, to rethink the criteria for the evaluation of behavior on the basis of this theory of descriptions: i.e. on both the power and the limitations of descriptions of behavior. (shrink)

This paper argues that in focusing on the problem of whether, and if so how, rules of law exist, legal theory endangers its capacity to both account for and evaluate how law accompanies a community in its adaptation to emerging social problems. Two classical works of legal theory are analysed, Hans Kelsen's Pure Theory of Law and HLA Hart's The Concept of Law, with a view to revealing the weaknesses of a legal theoretical approach aimed at describing the conditions under (...) which norms or rules exist as laws. An alternative is offered in the name of the concept of qualifiers. This concept is elaborated upon by reference to the work of GEM Anscombe, Bernard Jackson and Geoffrey Samuel, and an attempt is made to show how the concept of qualifiers can refocus the emphasis of legal theory on the more or less successful use of legal language by members of a legal community for the purposes of proposing legal solutions to social problems. Ultimately, the concept of qualifiers offers not only a different way of thinking about legal language, but also a different way of thinking about the limited role of language in theorising about any sort of phenomenon, including law. (shrink)

The aim of this paper is to illustrate, in some detail, the phenomenon of chess expertise and the making of errors by chess experts. In doing so, this paper also aims to reveal the close relationship between expertise and error making in chess. Finally, the paper aims to show how understanding that integral relationship can assist in the creation of pedagogical methods that can minimize error making, while also maximizing expertise. The analysis may provide some assistance in the development of (...) our understanding of expert epistemologies amongst the professions, and for reflection about the appropriateness of current pedagogical methods utilized in the education of those professions. (shrink)

This paper argues against the continuing domination, within legal theory, of the ambition to determine the mode of law's existence and our access to it. It illustrates the problems with such an approach via a close reading of George Pavlakos' recent work, Our Knowledge of the Law (2007). It seeks to replace the dominance of that ambition with the ethics of legal theory, i.e., the avoidance of both theoretical insularity and theoretical imperialism. Theoretical insularity ensues when we come to think (...) that any one of our theoretical pictures (of law, legal systems and legal work) provides us with access to that which exists, or how we really are, thereby missing the utility of other theoretical pictures. We come to see the utility of other theoretical pictures when we subject them to the scrutiny of practical contexts, but in doing so, we should not be tempted to think that any one theoretical picture can come to govern what we ought to do in any specific practical context (should we do so, we fall foul of theoretical imperialism). (shrink)

This paper argues that jurisprudential inquiries can be profitably analysed as oriented towards either the explanatory paradigm of discourse or the explanatory paradigm of tradition. The first part of the paper offers a map of the discipline of jurisprudence in accordance with the above two different explanatory orientations. It does so at two levels: 1) ontological ; and 2) epistemological. In the second part the paper, the tension and interaction between the explanatory paradigms of discourse and tradition in the work (...) of five different theorists is considered: 1) Elizabeth Mertz's anthropological linguistics; 2) Nicola Lacey's revision of the relationship between analytical jurisprudence and descriptive sociology; 3) Roger Cotterrell's call for a sociology of legal ideas; 4) Neil MacCormick's concept of law as institutionalised normative order; and 5) Patrick Glenn's notion of a legal tradition. Finally, in the third part, the paper addresses certain implications of the analysis of jurisprudential inquiries by reference to the above two explanatory orientations for comparative and international legal scholarship. The two explanatory orientations are offered as one of many paradigms thanks to which one can recognise the limitations of any one picture of law or legal work. At the metaphilosophical level, the analysis of the paper indicates that there are three options available to jurisprudence, i.e., 1) seek to provide a picture of law or legal work on the basis of one explanatory orientation; 2) maintain pluralism about concepts of law or legal work given their limitations in light of their explanatory orientations; or 3) attempt to combine the elements of both explanatory paradigms in a unified account. The paper argues that insofar as jurisprudence seeks to provide normative resources for responses to certain challenges in the public sphere, it ought to go for option two, namely, for maintaining pluralism about concepts of law and legal work. (shrink)

This paper offers a personal reflection on the value of legal scholarship. It is set in the context of the contemporary literature on the state of contemporary legal scholarship. The paper argues that the state of contemporary legal scholarship is too often evaluated on the exclusive basis of the style and content of legal scholarly works. The challenge that this paper seeks to meet is to provide a broader and richer platform upon which legal scholarship can and should be evaluated. (...) That challenge is met by offering a brief account of the five responsibilities of legal scholarship (reading, writing, teaching, collegiality, and engagement). These five responsibilities are designed to provide a framework for imagining the institutional life of a legal scholar. The paper argues that it is that full life, rather than merely the scholarly output, that should necessarily be included in any assessment of the state of contemporary legal scholarship. (shrink)

This paper argues that the contemporary treatment within moral, political and legal philosophy of the issue of the effective and proper constraint (and, ultimately, also, direction) of power suffers from an absence of engagement with the following question: what picture of behavior - of those in power - should we adopt in order to consider how it might be constrained and directed? It is argued that the absence of engagement with this question can be explained by the dominance of the (...) rationalization of behavior, and the concomitant methodology of scrutinizing the role of rules in excerpts of short-term reasoning. The paper offers an overview of sources that can assist in providing an alternative picture of behavior. The paper is organized into three parts: the first considers the long-term development of perceptual and kinetic know-how; the second examines the social, institutional and community-based location of that know-how; and the third considers how the sources of the first two parts can help us in the necessary transition from an over-emphasis on legal language, to an emphasis on legal work. Combining all the elements together, legal work is defined as the institutional emergence of perceptual and kinetic know-how that necessarily accompanies the constraint - amassing and guidance - giving use of legal language. The emphasis on this picture of legal work can provide us with the tools that will not only allow us to design institutions and the resources used by legal officials to constrain the power exercised by them more effectively, but it will also allow us to consider what moral capacities we would like legal work to be informed by, and, equally, what kind moral institutional ways of life we might strive for. Those moral capacities and moral institutional ways of life, in turn, will have to be supplemented by a theory of social justice, the appropriate beginning of which is an understanding of how we can learn to see the great variety and pervasiveness of suffering and vulnerability. Only once we understand how we come to see suffering and vulnerability, can we consider how it will be appropriate to respond to it, i.e. to respond by considering what moral capacities are required to be exercised by officials, and how we might design our institutions so that they enhance moral institutional ways of life. (shrink)

This paper argues that the contemporary practice of moral philosophy (particularly in the examples it relies on) and the contemporary practice of legal education both tend to ignore, dismiss or exclude that which is here called 'moral experience.' Moral experience is here defined (non-exhaustively) to be: 1) that which helps us face up to, instead of hide away from, our mortality and fallibility; 2) that which helps us experience radical uncertainty about who we are, where we have been, and where (...) we will be, and about what has happened, is happening and will happen; 3) that which helps us experience the insight that we are not in control of all that which influences us; 4) that which helps us experience the infinite (for us) complexity of others and the world; 5) that which helps us to notice hitherto-invisible (to us) forms of suffering and vulnerability; and 6) that which helps us to widen the scope of, or sometimes change, that which we find valuable and care about. Moral experience is not designed to replace traditions of moral inquiry (such as virtue ethics or utilitarianism), and it is not designed to help us meet the demands of moral life. Rather, it is designed to help us avoid underestimating the demands of moral life. Following a discussion of moral experience in the first part of the paper, the second part turns to offer some activities and resources thanks to which law schools can enable moral experience for both their students and their staff. In doing so, the second part of the paper draws on research undertaken as part of the AHRC Beyond Text in Legal Education project at the School of Law, University of Edinburgh. It also draws on the author's own research as part of a pedagogical project entitled Unnatural Exercises. (shrink)

This paper examines the status and role of modes of explanation of behavior in contemporary legal theory. It does so by reference to the criticism made by Sundram Soosay of the dominance of the conscious and deliberative mode of explanation in the work of Joseph Raz, H.L.A. Hart and Ronald Dworkin. Soosay's criticism is discussed and evaluated by reference to a reading of these three theorists. I argue for a pluralist and pragmatic approach to modes of explanations of behavior, as (...) opposed to one that conceives of representations of behavior as capable of offering true and verifiable descriptions of human nature. I illustrate the value of such pluralism and pragmatism by reference to Institutions of Law, the most recent work by Neil MacCormick. Ultimately, I call for a closer engagement by legal theorists with the issues taken up by the philosophy of the social sciences, and in particular, on its treatment of the question of the status and role of modes of explanation of behavior for the purpose of proposing social scientific hypotheses. (shrink)

Some accounts of social life give explanatory emphasis to normative requirements themselves. This paper resists such a tendency. It is argued that when normative requirements themselves are given explanatory priority the concept of social normativity tends to be situated between these requirements on the one hand, and the practice of evaluating conduct in accordance with those requirements. Normativity so situated is then required to bridge the justificatory gap between the two. It is further illustrated how such an explanatory structure is (...) designed to avoid questions concerning the legitimacy of the exercise of power. Making room for the silence of social normativity involves paying theoretical attention to the time before the first instance of a problematisation of a certain way of doing, which is thereafter commonly described, under the benefit of hindsight, as a deviation from a rule that was implicit all along, and merely made explicit. Instead of believing or assuming that we are able to achieve mastery and control over the practices we engage in, we ought to recognise, instead, that persons are always and already, inevitably and necessarily, emotionally involved in certain common or joint objects that are, at any one time, invisible to them. Given the pervasiveness, tenacity and, sometimes, violence of the silence of social normativity, the vital question becomes: how can we educate future generations such that they are both capable and willing to reflect on the consequences of their practices? (shrink)

This paper argues that we ought to conceive of normativity as a matter of the exercise of fallible abilities that make a fragile pact with the future. To conceive normativity in this fashion we also need to change our image and practice of thinking, i.e., we need to endorse thoughtfulness, which consists in the ability and willingness to widen the scope (or, sometimes, change) that which we find insightful. This approach to normativity, and this image and practice of thinking, is (...) at odds with the dominant contemporary approach to normativity, which, it is argued here, is characterised by an attempt to play god, i.e., to create and play in artificial, fantasy worlds where we can know and master all there is to know, such that we can read off, or determine in advance, the appropriateness or correctness of future actions (or events, beliefs, etc). As long as we continue to play gods in our approach to normativity, we will continue to hide away from our limitations, including, most importantly, our fallibility, animality and mortality. When we hide away from our limitations in this way we radically underestimate the demands of moral and political life. (shrink)

This paper argues that changes in philosophical practice will be most revolutionary not in the exercise of creativity and innovation in the content and substance of philosophical arguments - although these are not only important but also, to some extent, necessary for the survival of philosophy - but rather, in changes made: 1) to the philosophical environment and its tools; 2) to the kinds of bodies developed and expressed in those environments and in the course of using those tools; or (...) 3) to the styles, manners and mechanics of philosophical thinking. The introduction of these changes is what we should expect from the exercise of the imagination. To expect anything less would be to place in danger the ethical and political significance of thoughtfulness, not only in the context of the practice of philosophy, but also more broadly for the ethical and political health of the global community. (shrink)

This paper introduces the notion of responsiveness and the role it might play in moral, political and legal philosophy. The paper has four parts. The first considers the meaning of the call for making room for responsiveness, and discusses three potential bearers of responsiveness: 1) individuals; 2) institutions; and 3) practices. The second part of the paper discusses three possible objects of responsiveness (i.e., three possible answers to the question, "responsiveness to what?"): 1) the experience of moral emotions; 2) the (...) perception of values; and 3) thicker concepts, such as needs, suffering, vulnerability and dignity. The third part of the paper considers the inter-appropriateness of bearers and objects of responsiveness, i.e., it considers the relationship between the theoretical project of making room for responsiveness and the theoretical project of answering the "what" question. Finally, the fourth part briefly addresses an assumption made in the first part of the paper, namely, that there always and already exist constraints - an assumption that allows the philosophy of responsiveneness to avoid either presupposing a state of nature or aiming at an ideal theory (e.g., of the good life or of just institutions). Apart from attempting to analyse the structure of the notion of responsiveness and what it may be capable of offering moral, political and legal philosophy, the paper argues that a philosophy of responsiveness can also help us imagine a responsive philosophy. (shrink)

Understanding the nature of social normativity is important for contemporary analytical legal philosophy. For one, such an account may help articulate the form of the social conventions that are said to be at the foundations of the rule of recognition. This paper argues that accounts of the nature of social normativity ought not to be based on the idea that social life is governed or regulated by norms. Rather, accounts of social normativity ought to be centred on the notion of (...) how persons learn (and unlearn) what they come to anticipate. The first part of the paper offers some illustrations of such an account. The second part of the paper shows how social normativity so conceived can avoid some of the problems that bedevil the currently dominant view (or assumption) that social life is regulated or governed by norms. These problems include, first, difficulties associated with how much deliberative reflection and awareness to demand from participants in social life (accounts of social normativity are often said to be unrealistic or hyper-committal for demanding too much of both, which is not a criticism that can be made of the account offered here); and second, difficulties caused by assuming or positing that there can be a fact of the matter, unmediated by the evaluation or judgement of persons, as to whether or not some action is correct or incorrect on the basis that it merely conforms (or not, as the case may be) to some norm or set of norms (which is not an assumption made or a position endorsed by the account offered here). The paper does not aim to provide a comprehensive statement of the alternative view of social normativity. Rather, it seeks merely to introduce it and to suggest some of the ways in which it improves on the currently dominant view. (shrink)

This paper argues that what is at stake in the debate over the nature of social normativity is the understanding of the significance of the tension between repetition and change. The first and second parts of the paper offer illustrations of the pervasiveness and tenacity of reinforcement, as well as the rarity, but also urgent need for, openness. The paper also argues that the most dominant reason as to why the above-mentioned tension has received little attention in the literature is (...) because of the focus on the analysis of the nature and status of orders, which are assumed or are posited to regulate or govern social life. The paper argues that when we resist reification of normative orders and see these orders, instead, as projections that enable human beings to achieve certain aims, we open the door to understanding the above-mentioned tension and its significance. Further, when we see normative orders as projections, we can also understand that normative requirements are all capable of being distinguished only in degree, and not in kind. In other words, what we ordinarily think of as the normal and the normative form a continuum ranging from, on the one hand, that which we would be surprised or enraged to see as being doubted or undermined, to, on the other hand, that which is the subject of much debate and disagreement. (shrink)

This paper argues against a conception of normativity that relies too heavily on the notions of guidance and compliance. Both guidance and compliance are argued to be myths, used, by observers, to legitimise their evaluation of persons, conceived of as participants, in game models. The aim of this critique is three-fold: first, to make us more aware of the role of the observer and the act of observation; second, to assist us in acknowledging the inescapable fragility of our practices of (...) making sense of and evaluating others; and thirdly, to help us to see the need for an account of the social life of normativity, i.e., of paying attention to the different dynamics of obligation, legitimation, justification, authority etc, in different kinds of relationships. (shrink)

This paper argues that the concerns and methodology of the recently completed Report of the International Law Commission (ILC) over the fragmentation of international law presuppose a particular way of understanding legal language which tends to separate the understanding of rules from their factual adaptability to certain recurring social problems faced within specific institutional contexts. The paper argues that separating rules from their factual adaptability focuses the analysis on surface coherence - coherence at the level of abstract terms and phrases. (...) It is the argument of this paper that this presupposition is not warranted, and that the understanding of rules cannot be thus separated. An alternative model of the understanding of legal language is developed on the basis of the work of Bernard Jackson and Geoffrey Samuel. This is further supplemented by the approach to the study of institutional contexts in the recent work of Robert Summers and John Bell. Together, these resources can lead to the analysis of the deep coherence of the international legal order, that being one that prioritizes not the unity of that order, but its responsiveness. The ideal of responsive law is elaborated upon by reference to the work of Philip Selznick and Philippe Nonet. Finally, a different agenda for the ILC is offered on the basis of the methodology of deep coherence. The upshot is that the paper calls for a reorientation of international legal theory, away from concerns about 'the law itself' and towards an engagement with the responsiveness of legal work performed in international legal institutions. (shrink)

This paper argues for the adoption of pluralist pragmatism about concepts of law. The first part of the paper introduces the argument by reference to the debate over conceptual prescriptivism in the contemporary literature on the methodology of legal theory. The second part of the paper offers a method for recognising pluralism in traditions of jurisprudential inquiry: it does so on the basis of the use of modes of objectification that can be said to underwrite the construction of concepts of (...) law. A number of examples of such modes are offered, with the focus thereafter being on two such modes: on the one hand, the explanatory paradigm of reason; and on the other hand, the explanatory paradigm of cause. A map of traditions of jurisprudential inquiry is sketched on the basis of these two modes. The third part of the paper goes on to show how combining the prescriptive resources that follow from the two traditions of jurisprudential inquiry classified in such a manner makes our response to certain practical context more robust. The four practical contexts are: the exercise of judicial behaviour; the structure of international law; legal education; and, legal scholarship. It is only by adopting the pluralist pragmatism espoused by the ethics of legal theory that we can avoid theoretical insularity (the belief that any one theoretical picture is capable of corresponding truthfully to the world) and theoretical imperialism (the belief that any one theoretical picture can be used as a foundation for a prescriptive agenda). (shrink)

This paper analyses two methods commonly used to understand legal language: deontic logic and the analysis of concepts taken as fundamental for any one or more areas of the law (sometimes called the philosophical foundations of law project). In doing so I introduce what I call the phenomenon of linguistic regress, and I do so in order to show why and how these methods necessarily fail as theories of legal language. I argue, in short, that any form of content-determination of (...) concepts or norms fails as a method for understanding legal language because of the phenomenon of linguistic regress. Given the failure of these two methods, I argue that legal theorists should instead adopt an approach that focuses on explaining the community-based use of commonly-recurring terms and phrases found in legal language - a use, furthermore, that is most commonly exercised by legal experts (of varying degrees of skills), operating in different and interacting contexts of expertise (judicial, legislative and scholarly), and more broadly, as members of a legal community not impervious to influence from other kinds of communities. (shrink)

This paper offers a discussion, with examples and illustrations from both academia and the arts, of thoughtfulness, i.e., roughly, the ability and willingness to widen the scope of (or, sometimes, change) that which one finds insightful and that which one finds valuable. The paper argues that the exercise of thoughtfulness can help us avoid underestimating the demands of moral and political life. It does so because, unlike other approaches to the good (individual or communal), it does not neglect to acknowledge (...) the openness of the future, i.e., the sense in which we cannot foresee who and what will demand our care and concern. Following a general discussion of thoughtfulness, the paper turns to consider implications for the image and practice of moral and political philosophy. (shrink)

The first part of this paper provides a general theory of moral climates, which incorporates the following three elements: first, the values and limitations of that picture of moral behaviour focused on rules, rule-following and rationality; second, that picture of moral behaviour focused on institutionally-embedded activity; and third, that picture of moral behaviour that urges us to come face to face with our own limitations, i.e., our own ways of orienting ourselves to objects of value, such that we do not (...) neglect the vigilance required in order to see and recognise the great variety and depth of suffering and vulnerability. The moral climate of any particular social environment can be evaluated from the perspective of these three elements. The second part of the paper applies this general theory of moral climates to that of international economic institutions. It is argued that, despite their importance, both human rights discourse and institutional features designed to increase participation from developing countries in decision- and policy-making, are of limited use, partly because of their inherent limitations, and partly because of the emergence of international economic institutions in the context of an already heavily de-politicised and autonomous economic sphere. The necessary transformation of international economic institutions ought not to neglect the continuing domination of the orientation of those institutions towards the value of efficiency, to which all other values tend to be made subordinate. The paper proposes not only vigilance about the limitations of current and proposed normative languages and institutional features, but also urges the consideration of a Community Forum scheme, which is designed to bring to light and thereafter communicate, via the participation of international experts and artists, some of the particularities of suffering and vulnerability within specific communities. Finally, the paper illustrates the need for greater awareness of the particularities of suffering and vulnerability by considering the continuing problem of access to public goods and services amongst the poor in Nigeria. (shrink)

This paper examines the problem of normativity in contemporary legal theory, paying particular attention to the relationship between the conception of the problem and related explanations of behaviour. The first part of the paper shows how the problem of normativity, conceived of as a matter of determining how legal norms function as reasons for action, is linked to an explanation of behaviour that is posited or assumed to be capable of being guided by reasons. More importantly for the purposes of (...) the paper, the first part also shows the problem of normativity plays a certain function thanks to which a theorist can, e.g., evaluate lawmaking and adjudication practices ; scrutinise the reasonabless of norms ; critically examine the circumstances under which law is authoritative ; or make distinctions between certain kinds of phenomena that influence conduct. The second part of the paper offers the sketch of an alternative relationship between a conception of the problem of normativity and an explanation of behaviour. The general aim of the paper is to endorse an engagement with the works of others that pays attention to the relationship between problems and explanations, and to the implications of any one way of drawing that relationship for images and practices of theorising. (shrink)

This paper argues that concepts of legality in legal theory can be profitably understood as being underwritten by modes of spatio-temporal objectification. In the first part of the paper, a scheme of such modes is provided, and a map of jurisprudential inquiries is thereby offered. In the second part of the paper, two concepts of legality - underwritten by two different modes of spatio-temporal objectification - are analysed. The analysis shows how both concepts of legality lead to different sets of (...) prescriptive resources as to the evaluation and design of legal systems. Finally, it is argued that the response of legal theory to practical challenges within the public sphere cannot afford to be based on any one concept of legality. Rather, we need to be pluralists about concepts of legality, recognising the limitations of any one such concept - represented, in this paper, by way of spatio-temporal objectification that underwrites those concepts. A crisis in legal theory cannot be claimed on the basis of any alleged lack of correspondence between any one concept of legality and reality. On the contrary, a crisis will ensue to the extent that legal theory becomes dominated by theoretical imperialism, namely, by the belief that any one concept of legality is capable of capturing the world as it is, and, therefore, also capable of standing as a foundation for a prescriptive agenda. The vice of theoretical imperialism induces anxiety over the identity of a discipline, and leads to a quelling of the very theoretical diversity that is required for an ethical response to the specific complexity of the public sphere. (shrink)

This paper argues that the primary task of legal theory should be to pursue the responsiveness of a legal system to the moral life of a community. However, the pursuit of such an aim cannot appeal merely or even dominantly to the short-term motivational structures of individuals - as is dominantly the case in contemporary legal theory. What is required, instead, is appeal to long-term learning structures. This paper introduces the notion of long-term learning structures by reference to the work (...) of John Dewey. It supplements Dewey's account by reference to two further principles of moral education: first, developing the recognition of vulnerability, and second, fostering respect for difference. Having provided an account of moral education, the paper goes on to consider its relationship to the pursuit of a socially just legal system. The paper does so primarily by reference to the work of Philip Selznick and Roger Cotterrell, calling in essence for the revival of pedagogically-informed communitarian jurisprudence. (shrink)

Training can influence behavioral performance and lead to brain reorganization. In particular, training in one modality, for example, auditory, can improve performance in another modality, for example, visual. Previous research suggests that one of the mechanisms behind this phenomenon could be the cross-modal recruitment of the sensory areas, for example, the auditory cortex. Studying expert musicians offers a chance to explore this process. Rhythm is an aspect of music that can be presented in various modalities. We designed an fMRI experiment (...) in which professional pianists and non-musicians discriminated between two sequences of rhythms presented auditorily or visually. Behavioral results showed that musicians performed in both visual and auditory rhythmic tasks better than non-musicians. We found no significant between-group differences in fMRI activations within the auditory cortex. However, we observed that musicians had increased activation in the right Inferior Parietal Lobe when compared to non-musicians. We conclude that the musicians’ superior visual rhythm discrimination is not related to cross-modal recruitment of the auditory cortex; instead, it could be related to activation in higher-level, multimodal areas in the cortex. (shrink)

This paper considers the similarities between Adam Smith's device of the impartial spectator and the use of perspectival devices in common law reasoning. The paper adopts a reading of Smith's device as one involving the exercise of imaginative sympathy by an ordinarily virtuous, and culturally and historically situated, spectator who does not have a stake in the outcome of the scene being evaluated. The point here is to show that the impartial spectator is 1) a device of common, ordinary virtue (...) – both in the sense of being located in a culture at a specific point in time, and in the sense of possessing only moderate, achievable virtues ; and 2) a device that enables a focus on a situation, which requires imaginative work, emotional engagement and careful, particularised description. Having so modelled Smith's device, the paper shows the similarities between it and the use of perspectival devices in common law reasoning, specifically here via the ‘right-thinking member of society' test in defamation law. (shrink)

The paper presented here illustrates the issue of philosophy within the contemporary practice of American medicine. Four forms of relationship between both disciplines will be discussed: philosophy and medicine, philosophy within medicine, medical philosophy, and philosophy of medicine. The aim of the paper is to illustrate the specificity of the proposed forms of relationship, i.e. the contrast between the autonomous approach of the both disciplines and the realistic philosophy of medicine promoted by Edmund D. Pellegrin, which closely links the issue (...) of the nature and theory of medicine with the undertaking of philosophical reflection. The issue of the topicality of Edmund D. Pellegrin's philosophy of medicine in the context of the current challenges of American health care will also be discussed. (shrink)

The presented article illustrates David DeGrazia’s bioethical standpoint regarding the theoretical and the practical problem of memory in the context of the personal identity of a patient suffering from Alzheimer's disease. The first part of the article is a presentation of the theoretical problem of memory in the context of numerical and narrative identity being the center of the metaphysical theory of the human person. The second part of the article presents a practical memory problem in the bioethical case of (...) a patient diagnosed with early stages of Alzheimer’s disease. The American bioethicist and philosopher David DeGrazia proposes that the theoretical solutions regarding the identity of the human person find their practical application in bioethics in resolving moral dilemmas in the health care. The final part of the article focuses on criticizing the possibilities of practical applications of theoretical solutions on the subject of the human person in the bioethical position of David DeGrazia. (shrink)

This essay examines the use of fictions in the reasoning of the House of Lords and United Kingdom Supreme Court in the context of two recent lines of authority on English tort law. First, the essay explores the relevance of counter-factual scenarios to liability in the tort of false imprisonment, in the light of the Supreme Court decisions in Lumba and Kambadzi. The second series of decisions is on causation in negligence claims arising from asbestos exposure. These cases have revealed (...) fundamental, ongoing judicial disagreement about the nature and extent of the exceptions made to general principles. The cases are also shown to lend force to Del Mar’s argument about the diachronicity of legal fictions. Overall, it is argued that such fictions play an important role in common law reasoning. (shrink)