Is the nature of law to be formal procedure or to embody substantive value? This work deals with the traditional conflict in legal philosophy between positivistic and anti-positivistic theories of law. It examines the conflict with respect to seven central issues in legal philosophy--law as a reason for action, law and authority, the internal point of view to law, the acceptance of law, discretion and principle, interpretation and semantics, and law and the common good. This work argues that although this (...) conflict cannot be resolved, the true nature of law is revealed--not obscured--by this perennial situation. (shrink)

The article is a review of A.P. Simester, ed., Appraising Strict Liability. We strongly recommend the book for the sophistication of the contributors’ analyses, and the contribution the book makes to clarifying the normative issues at stake in strict liability legal regimes. The review focuses on the more philosophical essays in the book. The specific issues from the book identified in the review are: the rights-based character of the prohibition on conviction without moral fault; the importance of the principle of (...) proportionality; due diligence defences; the instrumental worth of strict liability in relation to quasi-criminal regulation; the faultiness of genuinely creating risks. (shrink)

Legal theory for the purposes of this essay is the theory of mundane law—that is, our law. The legal system of a modern Western democracy is the phenomenon legal theory is trying to represent perspicuously. Such a legal system may be characterized prephilosophically as an institutionalized normative system. The associated institutions include legislatures, courts, police forces, civil services, royal families, and the like. The associated norms are of three kinds—norms directly enjoining, permitting or proscribing behaviour on the part of the (...) norm-subjectss; norms for facilitating the creation of social arrangements between norm-subjects; norms for the creation, variation, administration, application and enforcement of norms of the first two kinds. (shrink)

It is something of a commonplace of Butlerian interpretation that the main interest and achievements of Butler's moral philosophy are in normative ethics, and not metaethics. He wishes to bring moral enlightenment to citizens and not, to philosophers, epistemological enlightenment. Nonetheless for that he makes a number of remarks which, if we were collecting for some bizarre purpose metaethical forms of words, we would note down and include in our collection. Thus he makes some progress towards the development of a (...) moral epistemology, a theory of moral judgment. My purpose here is to assess those steps, and to see how far the structure which results can be called a theory. I have the impression that much of the reluctance among scholars to allow that Butler does have a theory of moral judgment is caused by the metaethical blinkers that they themselves wear; what is in fact the beginnings of an unfashionable and unconventional theory is seen as unsophisticated confusion. But I shall not overdo praise of Butler. I shall suggest that Aristotle does a somewhat better job of developing this type of theory. (shrink)

Roger A. Shiner; VII*—Wittgenstein and the Foundations of Knowledge, Proceedings of the Aristotelian Society, Volume 78, Issue 1, 1 June 1978, Pages 103–124, ht.

A deferred prosecution agreement, or DPA, allows a corporation, instead of proceeding to trial on a criminal charge, to settle matters with the state by acknowledging the facts on which any charge would be based, pay a reduced fine, and agree to change the way they conduct business. Critics of DPAs have suggested that, because the defendant corporation must pay a fine and submit to structural reform without having been found guilty at trial, DPAs violate the Presumption of Innocence. This (...) paper argues that they do not. The paper appeals to the role of civic trust in a liberal political community. The obligations a corporation assumes in a DPA can be framed as a reasonable retributive response to a breach by that corporation of the community’s laws, and an appropriate reassurance by that corporation to the community that such breaches will not reoccur. This framing is sufficient to deny that DPAs violate the Presumption of Innocence. (shrink)

This chapter contains sections titled: Externalist Accounts Internalist Accounts Descriptivist Accounts Naturalized Jurisprudence Conclusion References.

In lieu of an abstract, here is a brief excerpt of the content:Self-Predication and the "Third Man" Argument ROGER A. SHINER 1.1. IN COMMPm'mO on the 'Third Man' Argument (TMA), Proclus z produces the following line of thought. He argues that. if the relation of resemblance between Form and particular were symmetrical, the argument in question would be valid; the relation is not, however, symmetrical. Where a Form and particular are both alike, have the quality of likeness, the (...) likeness of that which is derived is not the same as the likeness of that from which it is derived, just because of the former's derivatory nature. Consequently, ~k tt~v ala01]x~ bttotoi3c0at ~re[vot~ (sc. xo~ ~Semv), abx~ 8~ xo6~ot~ oSr~xt, 'the sensible particulars resemble the Forms, but they are not in the same relation of resemblance to the particulars' (ibid., 913.29-30). That is to say, the bare relation of similarity may be symmetrical, but the relation of a similar copy to a similar original is not; the copy is 'a copy of' the original, but the original/s not 'a copy of' the copy. This way of defending the Theory of Forms against the TMA I shall for purposes of identification call the 'Ontological Defence'. It lays stress on the ontological difference between Form and particular in order to avoid the fatal implication that the relation between them is symmetrical. If we use the language of predication, the point is as follows: the TMA is valid, if the Forms have a given term predicated of them severally in exactly the same sense as it is predicated of their respective dependent particulars. This, however, is not the case, for the quality in virtue of which a given term is predicated of a given Form differs in ontological status from the quality in virtue of which that term is predicated of that Form's dependent particulars. Thus we see that underlying the Ontological x I am grateful for helpful comments on an earlier version of this paper to Professor Gilbert Ryle, Professor John F. Malcolm and two anonymous readers for this Journal. Since this paper went to press, the following relevant articles have appeared: G. Vlastos, "'Self Predication' in Plato's Later Period," Philosophical Review, LXXVIII (1969), 74-78, and "Plato's 'Third Man' Argument (Parm. 132al-b2): Text and Logic," Philosophical Quarterly, XIX (1969), 289-301; K. W. Rankin, "The Duplicity of Plato's Third Man," Mind, LXXVIII (1969), 178-197; T. O. Smith, "'The Theory of Forms, Relations and Infinite Regress," Dialogue, VIII (1969), 116-123. 2 Proelus, In Platonis Parmenidem, ed. V. Cousin, Paris, 1864; 912.27 ft. [3711 372 HISTORY OF PHILOSOPHY Defence is the following assumption--the fact that the Forms are self-predicating only causes problems for the Theory of Forms, if a given Form F and its corresponding particulars, a set of f things, have 'F' predicated of them univocally, are F in precisely the same sense. My thesis in this paper is that this latter assumption is false, it is, rather, quite sufficient for the Self-Predication Assumption (SPA) to be vicious, if 'F' is predicated of both Form and particular not equivocally. This is not the same as 'univocally', and furthermore it is not possible that Plato could have thought of the predication of a term of both Form and particular as equivocal, the only alternative left to him to escape the TMA. The SPA, therefore, is required for the Theory of Forms to make sense, and leads to an ineradicable defect in that Theory. 1.2. One minor terminological point must be noted before we proceed. There are two versions of the TMA in the Parmenides; the first runs from 131eS-132b2, and the second from 132c11-133a7. The second of these explicitly employs the language of copy-resemblance, 7mpdS~tytm ('paradigm'), 6lxoio)tta ('likeness'), ~tKao0~vat ('resemble') as an explication of ~t~0e~tq ('participation'): the first employs the lan~.,uage of cttx6 ~ xai3xa.., eIvat ('that by which things are...'), which, as Plato has already indicated (Phaedo 100d6-8), is deliberatety noncommittal as to the relation between Forms and particulars. I shall refer to the first argument as TMA(1) and the second... (shrink)

Corporate behaviour is often regulated through the criminal law by means of reverse onus offences. Such offences are alleged to involve violations of the Presumption of Innocence. Such allegations almost always assume natural persons as defendants. The arguments supporting reverse onus offences are typically instrumental, to do with the importance of the social goals promoted and the ease of proof. The Presumption of Innocence is taken to be an autonomy right of natural persons and so not subject to being sidelined (...) for reasons of law enforcement expediency. Corporations, however, are not natural persons: they have no autonomy right not to be treated as means. It may well be, then, that reverse onus offences are justified in the case of corporate defendants. I argue that the Presumption is not violated by such offences in the case of corporate defendants. I develop a broad concept of the criminal justice system as an allocative system, and argue that reverse onus offences properly allocate the burden of proof for corporations. Specifically, I argue that the normative demand for legal innocence is sufficiently met by the availability of a due diligence defence; that the responsibility of corporations when prohibited harms occur is properly a form of outcome-responsibility; and that taking into account issues of reciprocity, legitimacy and power reverse onus offences justly allocate the burden of proof in the case of corporate defendants. (shrink)

Tom Stoppard is justly praised by many for what are perceived as his technical skills as a dramatist—his wit, his seriousness, his mastery of parody and pastiche, his impressive control of dramatic structure. Stoppard earns his place as a giant of modern drama from these qualities. They, however, are not what concern me here. His plays are also in various ways riddled with philosophy. My purpose in this paper is to examine the claim that he is a philosopher's dramatist, rather (...) than a dramatist's dramatist or an ordinary thinking man's dramatist. I am not concerned with how far Stoppard himself as a matter of biographical fact may wish to make this claim, although Stoppard has made no secret of his fascination with Philosophy. I make the claim myself in order both to offer an interpretation of certain dramatic texts and to raise certain questions about philosophical method. I hope to show that to understand certain ways in which Stoppard's plays are philosophical is to appreciate something profound about the way in which philosophy and drama are akin—that is, I hope to make critical and philosophical points, not historical or biographical points. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Roger A. Shiner GETTING TO KNOW YOU IN pursuits OF happiness, Stanley Cavell attempts to establish the existence of a previously unrecognized genre of film — "comedies of remarriage " — which both includes and is defined by such movies as Adam's Rib, Bringing Up Baby, and TL· Philadelphia Story. l By "marriage" and "remarriage " is meant a certain kind of enduring emotional intimacy with which (...) we as adult men and women will be involved, an intimacy which is an integral part of the human form of life and whose relationship to an institutionally supported legal status in our culture is not one of identity. The same is true for the concept of "divorce" in this context. Using some of Cavell's interpretive ideas as a starting point, I shall seek to present the genre of remarriage as a figure for the profoundest relationships of epistemology and metaphysics — the relationship of the knower to the world which is known and the relationship of the individual to die other individuals widi whom society is shared. Specifically, divorce and remarriage as part of human life are to be seen as figures for separation and kinship, avoidance and acknowledgement in the philosophical sense of those terms.2 My discussion proceeds on several levels. There is film criticism, which attempts to find significance in certain movies. There is an examination of values, which presents a certain view ofmarriage as a human relationship. There is some metaphysics, which addresses certain traditional philosophical problems in a nontraditional way. And finally there is metaphilosophy, which attempts to present a different way ofhow to ask, and how to acknowledge as being answered, the great questions of philosophy. Only the latter two projects could be described as "philosophical" in a conventional sense. Yet, as Arthur Danto has rightly remarked,3 Cavell in Pursuits ofHappiness seems to be trying to suggest that to blur deliberately the distinction between criticism and philosophy is to show something 80 Roger A. Shiner81 important about philosophy (and thus criticism as well). If this essay in some small way is thought to show something similar, I shall be pleased. Cavell begins his chapter on It Happened One Night with some ruminations on Locke, Hume, Kant, and the idea of the limitations of human reason. Kant undertakes to show, Cavell claims (PH, pp. 75-76), that our position as human knowers is both better and worse than the Empiricists suggest. It is worse, because even if we pressed human knowledge to its Kantian limits, we would know more but not enough to fulfill the philosopher 's dream. It is better, because the very facts that are limitations of human knowledge are also the necessary conditions ofknowledge as such and to know those conditions clearly is enormously to increase human knowledge. The link between the limitations ofhuman knowledge and the comedies of remarriage is forged by the thought (CR, p. 74) that the capacity to relate oneself to the world by knowledge and the capacity to relate oneselfto others by marriage are both constitutive ofhuman society. Human community is based in part on the fact that there are limitations as to what each of us as individual knowers can know. We need each other's knowledge. If one of us were per impossibile to transcend the limitations of human knowledge, he would know, as it were, what God knows and thus have the power that God has. But the existence of these limitations reveals something deep about human knowledge, something which traditional theory of knowledge rejects, namely that it is human. Human knowledge is limited, but it is genuine. It rests on no surer a foundation than human community, but human beings are a community. We need each other, but we are there for each other. Community, and therefore knowledge, does not need to be achieved: it exists.4 Similarly, the conventions in society limiting the capacity to relate oneselfto others by marriage (one at a time, and only under protest not one forever) reveal something deep about the nature of marriage. The mutuality of the intimacy ofmarriage is possible only in conjunction with the exclusiveness of marriage. Only by turning away from all others can the taking into... (shrink)

The remarks that critics make about works of art are various in character. Some of them are strictly interpretative—for instance, The Lord of the Rings may be claimed to be an allegorical representation of the Gospel Story; the slow movement of a symphony may be said to express a period of calm after a revolution; a painting may be said to depict the horrors of war. Some may be biographical—that the play was written in 1654, that the poem was written (...) while the poet was in love, that the sculpture was commissioned by the Canada Council. Some may be autobiographical—that the 7th has always been one's favourite Beethoven symphony, that one identifies with Joe in Room at the Top, that Medea was the first tragedy one saw performed in the original Greek. Some are ‘descriptive’ in the philosopher's sense, ‘matters of fact’—that the narrator is a senior civil servant, that the painting is all in pastel colours, that the conductor has not played all the repetitions. Some invoke formal structural principles—that the doors are in classical proportions, that the work's catastrophe is deferred to the finale, that the poem is in iambic pentameters. Some are concerned with the exposition of technique—that the spaciousness is suggested by the use of open fifths, that speed is portrayed by making the moving object sharper than anything else in the picture, that the effect of a sculpture is achieved by the use of metallurgically distinct materials. I wish to concentrate on a type of remark found frequently in art criticism, which defies reduction to any of the kinds mentioned above. The following are typical instances:That picture will not, at the first glance, deceive as a piece of actual sunlight; but this is because there is more in it than the sunlight, because under the glazing veil of vaulted fire which lights the vessel on her last path, there is a blue deep, desolate hollow of darkness, out of which you can hear the voice of the night wind, and the dull boom of the disturbed sea; because the cold deadly shadows of twilight are gathering through every sunbeam, and moment by moment as you look, you will fancy some new film and faintness of the night has risen over the vastness of the departing form. (shrink)

H. L. A. Hart’s The Concept of Law (Hart 1994) contains many passages that have become iconic for legal theory. This essay focuses on Chapter 7, sections 1 and 2, and Hart’s comments about judicial discretion in the context of Ronald Dworkin’s well-known attack on the idea of judicial discretion in his essay “The Model of Rules”. Specifically, the paper undertakes three projects. The first project is to defend the importance of the fundamental picture that Hart presents in Concept, Chapter (...) 7 of Common-Law judicial rule-making. Hart represents such rule-making as a balance of certainty and flexibility, and he is correct to do that. The second project is to argue that Dworkin’s attack on the positivist model of common-law judicial rule-making as an exercise of “strong discretion” fails. The idea, central to the meaning of “strong discretion” that courts are not “not bound by standards set by the authority in question” cannot be established. The third is to argue that Hart is his own worst enemy. The language, metaphors and images he uses to present his account of common-law judicial rule-making open the way to Dworkin’s critique. They also reveal Hart, if the language, metaphors and images are taken seriously, to be precisely the kind of formalist or deductivist about adjudication that he is ostensibly in Concept Chapter 7 criticising.Resumen:El concepto de derecho (1994) de H. L. A. Hart, contiene muchos pasajes que se han convertido en íconos de la teoría jurídica. Este artículo se concentra en el capítulo 7, sección 1 y 2, y en los comentarios que realizara Hart sobre la discreción judicial en el contexto de la bien conocida crítica de Dworkin a esta misma idea en su ensayo “El modelo de las normas”. Específicamente, el artículo emprende tres proyectos. El primero de ellos consiste en defender la importancia del esquema fundamental que ofrece Hart en el capítulo 7 de su obra, esto es, la creación judicial de normas en el Common Law. Hart representa tal creación de normas como un balance de certeza y flexibilidad; y él está en lo correcto al presentarlo de tal modo. El segundo proyecto consiste en argumentar que la crítica de Dworkin al modelo positivista de la creación judicial de normas en el Common Law, como un ejercicio de “discreción fuerte”, no está sustentada. La idea —central para el significado de “discreción fuerte”— de que los tribunales no están “sujetos a criterios establecidos por la autoridad en cuestión” no puede ser establecida. El tercer proyecto consiste en argumentar que Hart es su peor enemigo. El lenguaje, las metáforas e imágenes que emplea para exponer su teoría de la creación judicial de normas en el Common Law abre la puerta a la crítica dworkiniana. Si tomamos en serio el lenguaje, las metáforas y las imágenes, encontraremos a un Hart del tipo formalista o deductivista sobre la adjudicación, justo como el que él mismo está abiertamente cuestionando en el capítulo 7 de El concepto. (shrink)

It is something of a commonplace of Butlerian interpretation that the main interest and achievements of Butler's moral philosophy are in normative ethics, and not metaethics. He wishes to bring moral enlightenment to citizens and not, to philosophers, epistemological enlightenment. Nonetheless for that he makes a number of remarks which, if we were collecting for some bizarre purpose metaethical forms of words, we would note down and include in our collection. Thus he makes some progress towards the development of a (...) moral epistemology, a theory of moral judgment. My purpose here is to assess those steps, and to see how far the structure which results can be called a theory. I have the impression that much of the reluctance among scholars to allow that Butler does have a theory of moral judgment is caused by the metaethical blinkers that they themselves wear; what is in fact the beginnings of an unfashionable and unconventional theory is seen as unsophisticated confusion. But I shall not overdo praise of Butler. I shall suggest that Aristotle does a somewhat better job of developing this type of theory. (shrink)

Abstract.Legal philosophy must consider the way in which laws function as reasons for action. “Simple positivism” considers laws as merely reasons in the balance of reasons. Joseph Raz, as a representative of “sophisticated positivism,” argues that laws are exclusionary reasons for action, not merely reasons in the balance of reasons. This paper discusses Raz's arguments for his view. The Functional Argument provides no more reason for positivism than against it. The Phenomenological Argument is best supported by an account of how (...) character traits function in explaining behaviour. But then the distinction between exclusionary reasons and expressive reasons is obliterated. Legal positivism cannot absorb laws as expressive reasons for action. Raz's positivism implies the correctness of an anti‐positivistic legal theory. (shrink)

Legal theory for the purposes of this essay is the theory of mundane law—that is, our law. The legal system of a modern Western democracy is the phenomenon legal theory is trying to represent perspicuously. Such a legal system may be characterized prephilosophically as an institutionalized normative system. The associated institutions include legislatures, courts, police forces, civil services, royal families, and the like. The associated norms are of three kinds—norms directly enjoining, permitting or proscribing behaviour on the part of the (...) norm-subjectss; norms for facilitating the creation of social arrangements between norm-subjects; norms for the creation, variation, administration, application and enforcement of norms of the first two kinds. (shrink)

RADICAL THEOLOGIANS RIGHTLY SEE THAT THE EXISTENCE OF GOD IS NOT AN EMPIRICAL THESIS, BUT THEIR RESULTANT REINTERPRETATION OF MIRACLES IS UNRECOGNIZABLE TO ORTHODOX THEOLOGY. IS THIS A SYMPTOM OF A MORE PROFOUND PHILOSOPHICAL DIFFICULTY? JOHN WISDOM HAS SHOWN THAT QUESTIONS OF FACT MAY NOT NEED FURTHER EMPIRICAL ENQUIRY BUT STILL NEED SOLUTION AND STILL BE ABLE TO BE RATIONALLY PURSUED. IS THEN THE LESSON TO BE LEARNED FROM RADICAL THEORIES OF THE MIRACULOUS THAT MIRACLES CAN BE EVIDENCE IN PATTERNS? (...) I ARGUE NOT EVEN THIS IS POSSIBLE. FAITH, RELIGIOUS OR SECULAR, IS REQUIRED ALSO TO SEE A MIRACLE IN A PATTERN OR TO SEE NONE. THE BELIEVER AND NON-BELIEVER ARE PLAYING CHECKERS WITH THEIR PIECES ON DIFFERENT COLORED SQUARES. (shrink)

The paper describes at length and then discusses critically Frederick Schauer's analysis of rules in his recent book Playing By the RuZes. For most of the book Schauer discusses rules in general, and only at the end talks about legal rules in particular. The chief message of Schauer's analysis is that rules permit, and even constitute, a particular kind of decision‐making, one that quite deliberately insulates the decision‐taker from considerations of what would be in the circumstances the best justified decision (...) to take. Rules are thus for Schauer devices for the allocation of decision‐making power: The effect of A delegating to B the power to decide by a set of rules devised by A is that A retains much control over B 's decision‐making. Schauer canvasses the claims of what he calls “presumptive positivism” to be a theory of law which embodies such a view of legal rules. In his criticism, the author compares Schauer's view with Joseph Raz's notion of legal rules as exclusionary reasons. The author then compares “presumptive positivism” with some other recent versions of positivism and the idea of rules as devices for the allocation of power with theories of law in the Critical Legal Studies movement. (shrink)