Preface to a Symposium on Vagueness and Law at Columbia University Law School on September 24 and 25, 1999. The purpose of the seminar was to provide an opportunity for philosophers of law, philosophers of language, and philosophers of logic to discuss problems about vagueness that are currently under debate in all three areas.

Philosophical Foundations of Precedent offers a broad, deep, and diverse range of philosophical investigations of the role of precedent in law, adjudication, and morality. The forty chapters present the work of a large and inclusive group of authors which comprises of well-established leaders in the discipline and new voices in legal philosophy. The magnitude of the resulting project is extraordinary, presenting a diverse array of innovative and creative philosophical investigations of the practice of adhering to past decisions, in law and (...) allied fields of practical reasoning. And by the same token, the contributions elucidate the reasons that courts and other decision-makers may have for departing from what has been done before. The phenomena under investigation include the law and practice of common law and civil jurisdictions around the world. In addition to its fundamental relevance to common law jurisdictions, this work will be of broad and significant interest to theoretically minded audiences in continental Europe, Latin America, and Asia because it involves an extensive study of practices of precedent in civil law systems as well as common law systems. (shrink)

John Finnis says that central cases of the concepts of social theory (such as the concept of law) fully instantiate certain characteristic values (which are instantiated in more-or-less watered-down ways in peripheral cases). Yet the instances of some such concepts (such as the concepts of slavery, of tyranny, and of murder) do not instantiate any value. I propose a solution to this puzzle: the central cases of such concepts focally instantiate certain ills. The central case of a concept essential to (...) social theory may excel in some specific good or in some specific ill, or in neither, or in both. What about law? The central cases of a legal system, or of a law, involve goods that Finnis ascribes to them; I argue that the central cases also involve certain ills. That is the irony of law. Law secures essential goods for a community, and also (and, in fact, by the same token) it incurs certain ills that are necessarily involved in its specific techniques for securing those goods. (shrink)

Even to disagree, we need to understand each other. If I reject what you say without understanding you, we will only have the illusion of a disagreement. You will be asserting one thing and I will be denying another. Even to disagree, we need some agreement.

Vagueness in law can lead to indeterminacies in legal rights and obligations. This book responds to the challenges that those indeterminacies pose to theories of law and adjudication.

The author argues that philosophers' attempts to use philosophy of language to solve problems of jurisprudence have often failed- the most dramatic failure being that of Jeremy Bentham. H.L.A.Hart made some related mistakes in his creative use of philosophy of language, yet his focus on language still yields some very significant insights for jurisprudence: the context principle (that the correct application of linguistic expressions typically depends on context in ways that are important for jurisprudence), the diversity principle (that grounds of (...) correct application of legal language may be diverse), and the importance of vagueness. (shrink)

In fact, law is necessarily very vague. So if vagueness is a problem for legal theory, it is a serious problem. The problem has to do with the ideal of the rule of law and with the very idea of law: if vague standards provide no guidance in some cases, how can the life of a community be ruled by law? The problem has long concerned philosophers of law; the papers at this symposium address it afresh by asking what legal (...) theory may have to learn from (or contribute to) work on vagueness in philosophy of language and philosophy of logic. Here I will not try to state the implications of vagueness for philosophy of law; I will try to set the stage by showing that vagueness is both an important and an unavoidable feature of law. (shrink)

To be realistic –to face up to the unvarnished facts– a philosophy of human affairs needs the idea of misinterpretation in its tool kit. Sometimes there is conclusive reason to adopt one interpreta...

What can a philosophical analysis of the concept of interpretation contribute to legal theory? In his recent book,Interpretation and Legal Theory, Andrei Marmor proposes a complex and ambitious analysis as groundwork for his positivist assault on “interpretive” theories of law and of language. I argue (i) that the crucial element in Marmor's analysis of interpretation is his treatment of Ludwig Wittgenstein's remarks on following rules, and (ii) that a less ambitious analysis of interpretation than Marmor's can take better advantage of (...) those insights about rules. I explore some implications of such an analysis for the role of interpretation in legal reasoning. (shrink)

The author argues that vagueness in law is typically extravagant, in the sense that it is possible for two competent users of the language, who understand the facts of each case, to take such different views that there is not even any overlap between the cases that each disputant would identify as borderline. Extravagant vagueness is a necessary feature of legal systems. Some philosophers of law and philosophers of language claim that bivalence is a property of statements in the domains (...) that concern them (the domain of law in the former case, the whole domain of meaningful discourse in the latter). The author argues that the bivalence claim should be rejected. In philosophy of law, the motivation underlying the bivalence claim is an urge to assert the principle that the law must be capable of standing against arbitrary use of political power. The challenge – once the bivalence claim is rejected – is to articulate the law's opposition to arbitrariness in a way that is compatible with the possibility of indeterminacy in the application of vague laws. (shrink)

People can be autonomous, if they are subject to authority. In particular, they can be autonomous if they are subject to the authority of law. I defend the first claim through a study of Joseph Raz's compelling account of authority; I claim that his work leads to the conclusion that autonomous judgment is needed to determine the jurisdiction of an authority, and to interpret its directives. I defend the second claim by arguing that law does not claim unlimited jurisdiction, and (...) need not claim unlimited scope for its directives. But the requirements of the rule of law create a standing risk that the law will not adequately recognize the autonomy of its subjects, because of its artificial techniques for controlling its own jurisdiction and for controlling the scope of its own directives. (shrink)

Where the law protects human rights, the executive branch of government does well if it complies with the law, and goes wrong if it does not comply. And then you may think that the paradigmatic fun...

No community fully achieves the ideal of the rule of law. Puzzles about the content of the ideal seem to make it necessarily unattainable (and, therefore, an incoherent ideal). Legal systems necessarily contain vague laws. They typically allow for change in the law, they typically provide for unreviewable official decisions, and they never regulate every aspect of the life of a community. It may seem that the ideal can never be achieved because of these features of legal practice. But I (...) ask what counts as a ‘deficit’ in the rule of law, and I argue that none of these features of legal practice necessarily amounts to a deficit. I conclude that communities fail to achieve the rule of law only because of official infidelity to law, and the failure of lawmakers to pursue the ideal (or their decision not to pursue it). The rule of law is not necessarily unattainable. (shrink)

Widespread, deep controversy as to the content of the law of a community is compatible with the view that the law is a system of rules. I defend that view through a critique of Ronald Dworkin's discussion of Riggs v. Palmer 22 N.E. 188. Dworkin raised an important challenge for jurisprudence: to account for the fact that legal rights and duties are frequently controversial. I offer an explanation of the possibility of deep disagreement about the application of social rules, which (...) reconciles controversy as to the content of the law, with the model of a legal system as a system of rules. And I discuss the implications for understanding the role of judicial discretion in law. (shrink)

The use of vague language in law has important implications for legal theory. Legal philosophers have occasionally grappled with those implications, but they have not come to grips with the characteristic phenomenon of vagueness: the sorites paradox. I discuss the paradox, and claim that it poses problems for some legal theorists (David Lyons, Hans Kelsen, and, especially, Ronald Dworkin). I propose that a good account of vagueness will have three consequences for legal theory: (i) Theories that deny that vagueness in (...) formulations of the law leads to discretion in adjudication (including Dworkin's) cannot accommodate “higher-order” vagueness, (ii) A legal theory should accept that the law is partly indeterminate when it can be stated in vague language, (iii) However, the traditional formulation of the indeterminacy claim, that a vague statement is “neither true nor false” in a borderline case, is misconceived and should be abandoned. (shrink)

A state is sovereign if it has complete power within a political community, and complete independence. It may seem that the idea of sovereignty is objectionable because of two moral principles, or incoherent because of a paradox. The paradox is that a sovereign state must be capable of binding itself and must also be incapable of binding itself. The moral principles are that no state can justly exercise complete power internally, or complete independence (since complete independence would imply freedom from (...) norms of ius cogens, and from interference with mass atrocities by the state). Through an analogy with human autonomy, I argue that the paradox is only apparent, and that the moral principles are compatible with state sovereignty. So the idea of sovereignty is a coherent idea, and sovereignty, rightly understood, is a valuable feature of states in international law. Sovereignty is to be understood as internal power and external freedom that are complete for the purposes of a good state. (shrink)

It can be compatible with justice and the rule of law for a court to impose new legal liabilities retrospectively on a defendant. But judges do not need to distinguish between imposing a new liability, and giving effect to a liability that the defendant had at the time of the events in dispute. The distinction is to be drawn by asking which of the court's reasons for decision the institutions of the legal system had already committed the courts to act (...) upon, before the time of decision. I explain these conclusions through an assessment of the last episode in the debate between H.L.A.Hart and Ronald Dworkin. (shrink)

Moral premises are required in sound reasoning to the conclusion that a community does or does not (more or less) attain the rule of law. Those moral premises include, for example, the principle that judges should act with comity toward executive agencies. A failure in that moral requirement of comity is a failure to attain the rule of law. Because the ideal of the rule of law necessarily has a moral content, there is a necessary connection between law and morality– (...) albeit a modest connection that is compatible with deep moral defects in the law. (shrink)

Vagueness in law leads to indeterminacies in legal rights and obligations in many cases. The book defends that claim and explains its implications for legal theory. Vague language is the book's focus, but vagueness is not merely a linguistic feature of law. Law is necessarily vague. That fact seems to threaten the coherence of the ideal of the rule of law. The book defends a new, coherent articulation of that ideal.

In fundamental rights adjudication, should judges defer to the judgment of other decision makers? How can they defer, without betraying the respect that judges ought to accord those rights? How can they refuse to defer, without betraying the respect that judges ought to accord to other decision makers? I argue that only principles of comity justify deference, and their reach is limited. Comity never forbids the judges to take and to act upon a different view of fundamental rights from that (...) of another decision maker. I elaborate this view by reference to the decision of the House of Lords in Adan and Aitseguer [2001] 1 All ER 593. (shrink)

I approach the identification of the principles of legal interpretation through a discussion of an important but largely forgotten strand in our legal heritage: the idea (and at some points in English law, the rule) that the interpretation of legislation is to be done by the law maker. The idea that authentic interpretation is interpretation by the law maker united the Roman Emperors Constantine and Justinian with Bracton, Aquinas, King James I of England, Hobbes, and Bentham. Already in the early (...) 17th century, a new modern approach was emerging in England. The modern approach separates the interpretive power from the legislative power, and allocates the interpretive power to an independent court. I will argue that there are some cogent, general considerations in favour of the modern approach. But it is worth identifying the elements of good sense that made it seem that the interpretive power ought to be reserved for the law maker. And it is worth identifying the drawbacks in the modern approach; they are relevant to the complex question of how judges ought to interpret. (shrink)

Argues that some important problems in the theory of legal interpretation can be resolved with three techniques that John Finnis used in Natural Law and Natural Rights to address a methodological problem in jurisprudence: (1) The analogy principle: The application of a word such as “friendship” or “law” is not based on a set of features shared by each instance, but is based on similarities of a variety of kinds, seen by the people who use the words as justifying the (...) extension of the word. (2) The paradigm (or central case) principle: You cannot understand a word like “friendship” or “law” without seeing what counts as a good instance of friendship or law. (3) The context principle: What counts as a good instance depends on the context in which the word is to be used, and on the concerns and purposes which justify the use of the word. (shrink)

I address four questions that arise out of Nigel Simmonds's book, Law as a Moral Idea : Is politics a moral idea too? Is there any such thing as law making? Is there a right answer to every legal dispute? What justifies a judicial decision? To each question I propose an answer that shares much with Simmonds's views, but diverges. Simmonds is right to call law a 'moral idea', and that implies a connection between law and a moral ideal; in (...) my view, the connection is compatible with a necessary connection between law and the morally non-ideal. (shrink)

This book comprises essays in law and legal theory celebrating the life and work of Jim Harris. The topics addressed reflect the wide range of Harris's work, and the depth of his influence on legal studies. They include the nature of law and legal reasoning, rival theories of property rights and their impact on practical questions before the courts; the nature of precedent in legal argument; and the evolving concept of human rights and its place in legal discourse.

In English law, there are various ways in which contracts can be invalid or unenforceable because they are immoral — and yet English lawyers know that many contracts are conclusively binding. The first two sources of legal gaps that Joseph Raz identifies do not seem surprising. Vagueness in the sources of law leads to gaps in borderline cases, and there is a gap if the law includes inconsistent rules, with no way of deciding which is effective. In those situations it (...) seems right to say that the law does not tell people where they stand, so that people may need a court to make a decision. But if Raz is right about the third source of gaps, then judges have discretion whenever the law appeals to moral considerations. This chapter discusses the sources thesis, moral considerations, judicial discretion, the social morality of judges, and contract law. (shrink)

We are delighted to present four articles that had their inception in a conference at Universidad Carlos III in Madrid in June 2016 on the question, ‘What aspects of justice should not be the law’s...

Suppose that you are wandering across the tundra, and you find an infant, all alone, in the snow. She is incapable of discourse, and yet she has the same human rights as anyone who is capable of discourse. Those rights do not depend on the practices or conventions of your people, or hers. Human discourse and human conventions play no role in human rights. I elaborate these claims through a critique of J.W. Harris’s groundbreaking analytical account of human rights. I (...) conclude that some welfare rights are paradigms of human rights, while rights of freedom of expression, privacy, and assembly, and rights to vote, and rights to independent tribunals are not human rights at all, except in a distantly metaphorical sense. Moreover, human rights can be explained with no reference at all to state authorities (though state authorities may have various special roles in observing and promoting some of them). (shrink)

Are there human rights to a good such as social welfare, which depends on circumstances, and on the needs of a putative right-holder? Is justice constituted by rights? Does it take belief in God to understand the grounds of human rights? The essay responds to Nicholas Wolterstorff’s answers to these questions.

The meaning of a word is given by a customary rule for its use. I defend that claim and explain its implications by a comparison with customary rules in law. I address two problems about customary rules: first, how can the mere facts of social practice yield a norm? Secondly, how can we explain disagreement about the requirements of a custom, if those requirements are determined by the shared practice of the participants in a community? These problems can be resolved (...) in a way that illuminates customary rules, and helps to explain the relation between the meaning of a word and the customary rule for its use. The meaning of a word is the usefulness that it has because of the customary rule for its use. (shrink)

Knowledge and its Limits presents a systematic new conception of knowledge as a kind of mental stage sensitive to the knower's environment. It makes a major contribution to the debate between externalist and internalist philosophies of mind, and breaks radically with the epistemological tradition of analyzing knowledge in terms of true belief. The theory casts new light on such philosophical problems as scepticism, evidence, probability and assertion, realism and anti-realism, and the limits of what can be known. The arguments are (...) illustrated by rigorous models based on epistemic logic and probability theory. The result is a new way of doing epistemology and a notable contribution to the philosophy of mind. (shrink)

Inner speech is commonly understood as the conscious experience of a voice within the mind. One recurrent theme in the scientific literature is that the phenomenon involves a representation of overt speech, for example, a representation of phonetic properties that result from a copy of speech instructions that were ultimately suppressed. I propose a larger picture that involves some embodied objects and their misperception. I call it “the Body Error Theory,” or BET for short. BET is a form of illusionism, (...) but the particular version I favor is a cross-modal illusion. Newly described here, my hypothesis is that the experience of inner speech arises from a mix of interoception and audition. Specifically, there is the detection of slight but well-confirmed activities in the speech musculature that occur during inner speech, which helps to transform representations of normal but quiet nonverbal sounds that inevitably occur during inner speech, from breathing to background noise, into a mistaken perception of inner speech. Simply put, activities in the speech musculature mix with sounds to create the appearance of speech sounds, which thus explains the “voice within the mind.” I also show how BET’s cross-modal system fits with standard information processing accounts for speech monitoring and how it accommodates the central insights of leading theories of inner speech. In addition, I show how BET is supported by data from experience-sampling surveys and how it can be empirically tested against its rivals. (shrink)

This is not your psychoanalyst's unconscious.

Knepper criticizes existing efforts in the philosophy of religion for being out of step with, and therefore useless to, the academic study of religion, then forwards a new program for philosophy of religion that is in step with, and therefore useful to, the academic study of religion.

According to the Fragmentation Analysis, epistemic akrasia is a state of conflict between beliefs formed by the linguistic and non-linguistic belief-formation systems, and epistemic akrasia is irrational because it is a state of conflict between beliefs so formed. I argue that there are cases of higher-order epistemic akrasia, where both beliefs are formed by the linguistic belief-formation system. Because the Fragmentation Analysis cannot accommodate this possibility, the Fragmentation Analysis is incorrect. I consider three objections to the possibility of higher-order epistemic (...) akrasia. Along the way, I offer a revision of the Fragmentation Analysis that can allow for the possibility of higher-order akrasia while avoiding the problems I point out for the original view. (shrink)

Second-order logic and modal logic are both, separately, major topics of philosophical discussion. Although both have been criticized by Quine and others, increasingly many philosophers find their strictures uncompelling, and regard both branches of logic as valuable resources for the articulation and investigation of significant issues in logical metaphysics and elsewhere. One might therefore expect some combination of the two sorts of logic to constitute a natural and more comprehensive background logic for metaphysics. So it is somewhat surprising to find (...) that philosophical discussion of secondorder modal logic is almost totally absent, despite the pioneering contribution of Barcan. (shrink)

In this global introduction to philosophy of religion you begin not with a single tradition, but with religious philosophies from East Asia, South Asia, West Africa, and Native North America, alongside the classical Abrahamic and modern European traditions. Matching this diversity of traditions, chapters are organized around questions that acknowledge there is no single understanding of any god or ultimate reality. Instead you approach six different traditions of philosophizing about religion by asking questions about the journeys of both the self (...) and the cosmos such as "What is my path?" and "Where did the cosmos come from?" Accompanied by introductory materials and an extensive glossary, each chapter includes learning objectives, questions for discussion, and suggested primary and secondary sources. The categories of religion and philosophy are interrogated throughout. Equipped with study tools and universal questions about the self and the cosmos, Philosophies of Religion: A Global and Critical Introduction shows you how to philosophize about religions around the world. (shrink)

On method, discursive logics, and epistemology -- Questions of medieval discursive practice -- From the middle ages to the (w)hole of Utopia -- Kepler, his Dream, and the analysis and pattern of thought -- Campanella and Bacon: concerning structures of mind -- The masculine birth of time -- Cyrano and the experimental discourse -- The myth of sun and moon -- The difficulty of writing -- Crusoe rights his story -- Gulliver's critique of Euclid -- Emergence, consolidation, and dominance of (...) a discourse. (shrink)

Skeptical theism is a family of responses to the evidential problem of evil. What unifies this family is two general claims. First, that even if God were to exist, we shouldn’t expect to see God’s reasons for permitting the suffering we observe. Second, the previous claim entails the failure of a variety of arguments from evil against the existence of God. In this essay, we identify three particular articulations of skeptical theism—three different ways of “filling in” those two claims—and describes (...) their role in responding to evidential arguments of evil due to William Rowe and Paul Draper. But skeptical theism has been subject to a variety of criticisms, several of which raise interesting issues and puzzles not just in philosophy of religion but other areas of philosophy as well. Consequently, we discuss some of these criticisms, partly with an eye to bringing out the connections between skeptical theism and current topics in mainstream philosophy. Finally, we conclude by situating skeptical theism within our own distinctive methodology for evaluating world views, what we call “worldview theory versioning.”. (shrink)

The paper explores the main competing interpretations of Aristotle's view of the relation between happiness and external goods in the Nicomachean Ethics. On the basis of a careful analysis of what Aristotle says in the Nicomachean Ethics (and other works such as the Eudemian Ethics, Politics, Rhetoric, etc.) it is argued that it is likely that Aristotle takes at least some external goods to be actual constituents of happiness provided that (1) they are accompanied by virtuous activity and (2) the (...) agent enjoying and using those external goods does so in ways compatible with the continuous aim of acting virtuously. (shrink)