To answer the question of what difference the philosophy of history makes to the philosophy of law this paper begins by calling attention to the way that Ronald Dworkin's interpretive theory of law is supposed to upend legal positivism. My analysis shows how divergent theories about what law and the basis of legal authority is are supported by divergent points of view about what concepts are, how they operate within social practices, and how we might best give account of (...) such meanings. Such issues are widely debated in the philosophy of history but are often overlooked in jurisprudential circles. When the legal positivist approach to meanings is contrasted with Dworkin's interpretivism it is clear that what is needed is an alternative to both, in the form of what we might call "historical meanings" and "historical interpretation". While Dworkin's interpretivism gets it right that legal positivism is an inadequate philosophy of law to the extent that it is committed to a "criterial semantics" view of concepts, this paper argues that post-positivism in the philosophy of law need not entail a normative jurisprudence, as Dworkin would have it. (shrink)
Introduction: making the invisible visible -- The nobility of the material -- Research at war -- The guilded age of research -- The doctor as whistle-blower -- New rules for the laboratory -- Bedside ethics -- The doctor as stranger -- Life through death -- Commissioning ethics -- No one to trust -- New rules for the bedside -- Epilogue: The price of success.
Beyond geometry : Leibniz and the science of law -- The force of law : will -- Leibniz's systema iuris -- From the gesetzbuch to the landrecht : the ALR and the triumph of legality -- The rule of law : the Crown Prince lectures and the grounding of legality in order and security -- From reason to history : Savigny's system and the rise of social legal science -- The Bürgerliches Gesetzbuch (BGB) of 1900 : positive legal science (...) and the end of justice. (shrink)
"An American psychologist, Daniel N. Robinson, traces the development of the insanity plea...[He offers] an assured historical survey." Roy Porter, The Times [UK] "Wild Beasts and Idle Humours is truly unique. It synthesizes material that I do not believe has ever been considered in this context, and links up the historical past with contemporaneous values and politics. Robinson effortlessly weaves religious history, literary history, medical history, and political history, and demonstrates how the insanity defense cannot be (...) fully understood without consideration of all these sources." Michael L. Perlin, New York Law School "Daniel N. Robinson has written a graceful history of insanity and the law stretching from Homer to Hinckley. He attempts no final theory as to how the law should cope with the insane; he seeks, rather, to use the shifting notions of when madness exculpates criminal activity to illuminate the core self-perceptions of the cultures developing ever-evolving resolutions of the problem...[T]he grandeur of the theme...commands attention and respect." --Neal Johnston, The Nation . (shrink)
Introduction : beyond the "degree zero" of law after modernity -- Autonomous law or redundant law? : the elusive nature of legal theory -- Law as system : the missing multidimensionality of law -- Reconfiguring the legal landscape : the sojourn of legal pluralism -- The injustice of law after modernity -- Law, justice and injustice -- Legal justice I : "maimed justice" and the rule of law -- Legal justice II : reclaiming the rule of law from its "dark (...) side" : critical legal justice -- The enigma of human rights -- Critical legal justice and beyond : cosmopolitanism -- Beyond cosmopolitanism : the murky world of governance and global "justice" -- Conclusion : law and justice after modernity. (shrink)
The article describes the history of Mykolas Romeris University periodical science journal “Jurisprudence”. The principal characteristics describing “Jurisprudence” as well as the content of the journal are discussed in the article. The “Jurisprudence” of today is a modern tribune that helps the scientists of Mykolas Romeris University and other educational institutions as well as the scientists of foreign countries to present to the society the findings of various scientific works in the sphere of research of fundamental (...) and applicable legal science. The journal has been officially granted the status of prestigious publication that embodies the acknowledgement of the publications for the authors of the articles published in the journal while claiming for the scientific degree or pedagogical title. The publications of this journal are reflected in the notorious international data bases. During the past twenty years, 132 tomes of “Jurisprudence”, that overwhelms more than 2100 printer’s sheets, have been published. Approximately 1900 scientific articles in Lithuanian, English, German, French, Polish and Russian have been published. The genuine popularity and the social utility of the substance published in the journal is apparent not as much from the edition of the traditional paper version of the journal as from the data, showing the numbers of users downloading the electronic version of the articles of the journal that mostly reach the four-figure numbers, sometimes extending to five or six thousand. Some attention in the article is paid to discuss the primal problematics of legal science reflected in the pages of “Jurisprudence” as well as to describe the contribution of the authors of the articles. The content of the journal allows us to ascertain the variety of publications announced, as they overwhelm practically all the classical branches of legal science. The journal analyses the conceptual matters as well as solves the specific problems dictated by practice. Most of the articles published in the journal are oriented to the primal legal problems of a particular period, raise and analyse problematical questions relevant to both science and practice as well as correspond to the novelties of legal regulation in Lithuania. (shrink)
Emergence of the modern science of international law is usually attributed to Grotius and other somewhat heroic ‘founders of international law.’ This book offers a more worldly explanation why it was developed mostly by German writers ...
David Hume’s legal theory has normally been interpreted as bearing close affinities to the English common law theory of jurisprudence. I argue that this is not accurate. For Hume, it is the nature and functioning of a country’s legal system, not the provenance of that system, that provides the foundation of its authority. He judges government by its ability to protect property in a reliable and equitable way. His positions on the role of equity in the law, on artificial (...) reason and the esoteric nature of the law, and on the role of judges in the legal system are all at odds with those of the common lawyers. (shrink)
Combining the methods of the modern philosopher with those of the historian of ideas, Knud Haakonssen presents an interpretation of the philosophy of law which Adam Smith developed out of - and partly in response to - David Hume's theory of justice. While acknowledging that the influences on Smith were many and various, Dr Haakonssen suggests that the decisive philosophical one was Hume's analysis of justice in A Treatise of Human Nature and the second Enquiry. He therefore begins with a (...) thorough investigation of Hume, from which he goes on to show the philosophical originality of Smith's new form of natural jurisprudence. At the same time, he provides an over all reading of Smith's social and political thought, demonstrating clearly the exact links between the moral theory of The Theory of Moral Sentiments, the Lectures on Jurisprudence, and the sociohistorical theory of The Wealth of Nations. This is the first full analysis of Adam Smith's jurisprudence; it emphasizes its normative and critical function, and relates this to the psychological, sociological, and histroical aspects which hitherto have attracted most attention. Dr Haakonssen is critical of both purely descriptivist and utilitarian interpretations of Smith's moral and political philosophy, and demonstrates the implausibility of regarding Smith's view of history as pseudo-economic or 'materialist'. (shrink)
Each of the essays included in this volume illuminates an aspect of law, reflecting an unorthodox perception of jurisprudence which combines interests in philosophy, legal theory, criminology, legal history, political and constitutional theory and the history of ideas. This work will broaden the jurisprudential scope of practitioners' professional concerns, but help academics enhance their knowledge of the wealth of information for their own studies.
Michael Oakeshott has long been recognized as one of the most important political philosophers of the twentieth century, but until now no single volume has been able to examine all the facets of his wide-ranging philosophy with sufficient depth, expertise, and authority. The essays collected here cover all aspects of Oakeshott’s thought, from his theory of knowledge and philosophies of history, religion, art, and education to his reflections on morality, politics, and law. The volume provides an authoritative and synoptic (...) guide to one of the most important philosophers of the twentieth century. (shrink)
For much of the history of the western legal order, the question of jurisdiction - the question of the power and authority of law - has been the first question of law. This book investigates the difference that jurisdiction continues to make to the ordering of normative existence. It also follows the speculation that without an account of jurisdiction, jurisprudence would be left speechless, left with no power to address the conditions of attachment to legal and political order. (...) The starting point of this book lies with the claim that a sharper focus can be given to normative legal ordering through questions of jurisdiction than can be through those of moral responsibility or social action. This is so because jurisdiction articulates both the potentiality of law and the conditions of its exercise. It provides the idiom of response to the fact that there is law and to the fact that law institutes, judges and addresses a form of life. From this viewpoint the contributors to this book examine the institution of human rights, the new global and national orders of sovereign power and of trade and information, the judgment and government of death and desire, and the address of colonial and post-colonial legal idioms. In doing this the contributors also provide for the elaboration of questions of jurisdiction as part of the resources and repertoires of jurisprudence. This book provides a point of entry to an emergent genre of writing within doctrinal, historical and critical jurisprudence that has returned to questions of jurisdiction to think again about juridical order and change. In so doing, it also points to questions that must be asked for there to be any interdisciplinary study that addresses law. (shrink)
The foundations of law. The digest title, De diversis regulis iuris antiqui, and the general principles of law, by P. Stein. Equity in Chinese customary law, by W. Y. Tsao. Prolegomena to the theory and history of Jewish law, by H. Cohn. Juridical evolution and equity, by J.P. Brutau. Reflections on the sources of the law, by P. Lepaulle. The true nature and province of jurisprudence from the viewpoint of Indian philosophy, by M.J. Sethna. On the functions and (...) aims of the state, by G. Del Veccchio.--Concepts of jurisprudence. Legal language and reality, by K. Olivecrona. The logic of the reasonable as differentiated from the logic of the rational (human reason in the making and the interpretation of the law) by L. Recaséns-Siches. Some refections on status and freedom, by W.G. Friedmann. Law and power and their correlation, by M. Reale. The notion of canonical auctoritas with respect to statute, custom and usage, by B.F. Brown. Two theories of "the institution," by J. Stone. (shrink)
Legal orientalism -- Making legal and unlegal subjects in history -- Telling stories about corporations and kinship -- Canton is not Boston -- The District of China is not the District of Columbia -- Colonialism without colonies.
Andrew Tooke's 1691 English translation of Samuel Pufendorf's De officio hominis et civis, published as The Whole Duty of Man According to the Law of Nature, brought Pufendorf's manual fo statist natural law into English politics at a moment of temporary equilibrium in the unfinished contest between Crown and Parliament for the rights and powers of sovereignty. Drawing on the authors' re-edition of The Whole Duty of Man, this article describes and analyses a telling instance of how--by translation--the core political (...) terms and concepts of the German natural jurist's 'absolutist' formulary were reshaped for reception in the different political culture of late seventeenth-century England. (shrink)
I examine the consistency of Kant's notion of moral progress as found in his philosophy of history. To many commentators, Kant's very idea of moral development has seemed inconsistent with basic tenets of his critical philosophy. This idea has seemed incompatible with his claims that the moral law is unconditionally and universally valid, that moral agency is noumenal and atemporal, and that all humans are equally free. Against these charges, I argue not only that Kant's notion of moral development (...) is consistent, but also that the assumption of the possibility of moral progress is indispensible for Kant's moral theory. (shrink)
The aim of this paper is to argue that Kant's philosophy of biology has crucial implications for our understanding of his philosophy of history, and that overlooking these implications leads to a fundamental misconstruction of his views. More precisely, I will show that Kant's philosophy of history is modelled on his philosophy of biology due to the fact that the development of the human species shares a number of peculiar features with the functioning of organisms, these features entailing (...) important methodological characteristics. From this main claim will follow three further claims: (1) Kant's teleological view of history is not simply based on ethical considerations that have to do with the moral progress of the human species; rather, it stems from his conception of teleology as developed in his philosophy of biology. (2) Kant's philosophy of history allows for the practice of scientific history. In this sense, Kant's view of history is not merely teleological but involves a mechanical (and thus empirical) element. (3) Just as teleology is useful for furthering mechanical accounts of biological phenomena, teleological history is useful for scientific history. (shrink)
What are the relationships between philosophy and the history of philosophy, the history of science and the philosophy of science? This selection of essays by Lorenz Krüger (1932-1994) presents exemplary studies on the philosophy of John Locke and Immanuel Kant, on the history of physics and on the scope and limitations of scientific explanation, and a realistic understanding of science and truth. In his treatment of leading currents in 20th century philosophy, Krüger presents new and original arguments (...) for a deeper understanding of the continuity and dynamics of the development of scientific theory. These result in significant consequences for the claim of the sciences that they understand reality in a rational manner. The case studies are complemented by fundamental thoughts on the relationship between philosophy, science, and their common history. (shrink)
Analytic philosophers are often said to be indifferent or even hostile to the history of philosophy--that is, not to the idea of history of philosophy as such, but as a species of the genus philosophy rather than history. It is argued that such an attitude is actually inconsistent with commonplace positions within the philosophies of mind that are typical within analytic philosophy.
I show the sense in which the concept of history as a human science affects our theory of the natural sciences and, therefore, our theory of the unity of the physical and human sciences. The argument proceeds by way of reviewing the effect of the Darwinian contribution regarding teleologism and of post-Darwinian paleonanthropology on the transformation of the primate members of Homo sapiens into societies of historied selves. The strategy provides a novel way of recovering the unity of the (...) sciences: by construing the physical sciences themselves as human sciences - and, therefore, as themselves historied. (shrink)
Abstract In this essay I trace the role of history in the philosophy of art from the early twentieth century to the present, beginning with the rejection of history by formalists like Clive Bell. I then attempt to show how the arguments of people like Morris Weitz and Arthur Danto led to a re-appreciation of history by philosophers of art such as Richard Wollheim, Jerrold Levinson, Robert Stecker and others.
To date, no satisfactory account of the connection between natural-scientific and historical explanation has been given, and philosophers seem to have largely given up on the problem. This paper is an attempt to resolve this old issue and to sort out and clarify some areas of historical explanation by developing and applying a method that will be called “pragmatic explication” involving the construction of definitions that are justified on pragmatic grounds. Explanations in general can be divided into “dynamic” and “static” (...) explanations, which are those that essentially require relations across time and those that do not, respectively. The problem of assimilating historical explanations concerns dynamic explanation, so a general analysis of dynamic explanation that captures both the structure of natural-scientific and historical explanation is offered. This is done in three stages: In the first stage, pragmatic explication is introduced and compared to other philosophical methods of explication. In the second stage pragmatic explication is used to tie together a series of definitions that are introduced in order to establish an account of explanation. This involves an investigation of the conditions that play the role in historiography that laws and statistical regularities play in the natural sciences. The essay argues that in the natural sciences, as well as in history, the model of explanation presented represents the aims and overarching structure of actual causal explanations offered in those disciplines. In the third stage the system arrived at in the preceding stage is filled in with conditions available to and relevant for historical inquiry. Further, the nature and treatment of causes in history and everyday life are explored and related to the system being proposed. This in turn makes room for a view connecting aspects of historical explanation and what we generally take to be causal relations. (shrink)
Ronald Dworkin describes an approach to how courts should decide cases that he associates with Judge Richard Posner as a Chicago School of anti-theoretical, no-nonsense jurisprudence. Since Professor Dworkin takes his own view of adjudication to be diametrically opposed to that of the Chicago School, it might seem fair, then, to describe Dworkin's own theory as an instance of pro-theoretical, nonsense jurisprudence. That characterization is not one, needless to say, that Professor Dworkin welcomes. Dworkin describes his preferred approach (...) to jurisprudential questions, to be sure, as theoretical, in opposition to what he calls the practical orientation of the Chicago School. But while there is a real dispute between Dworkin and Posner, it is not one illuminated by the contrast between theory and practice. It is, rather a dispute about the kind of theory that is relevant and illuminating when it comes to law and adjudication. And the fault line marked by this dispute is profound indeed, one that extends far beyond Dworkin and Posner and has a venerable and ancient history. I shall describe it, instead, as a dispute between Moralists and Realists, between those whose starting point is a theory of how things (morally) ought to be versus those who begin with a theory of how things really are. The Lecture endeavors to show that our contemporaries, Ronald Dworkin and Richard Posner, are reenacting a version of the dispute between the paradigmatic philosophical moralist Plato and the paradigmatic historical realist Thucydides. (shrink)
Although first published in 1969, the methodological views advanced in Quentin Skinner's “Meaning and Understanding in the History of Ideas” remain relevant today. In his article Skinner suggests that it would be inappropriate to even attempt to write the history of any idea or concept. In support of this view, Skinner advances two arguments, one derived from the philosophy of the later Wittgenstein and the other from that of J. L. Austin. In this paper I focus on the (...) first of these arguments. I claim that the conclusion which Skinner draws from this particular argument does not necessarily follow and that an alternative assessment of the methodological significance of Wittgenstein's philosophy for historians of ideas is possible. On this alternative view, far from ruling out conceptual history, an appeal to the view of meaning set out in Wittgenstein's Philosophical Investigations leads to a quite different conclusion, namely that the writing of such a history is arguably a necessary precondition for the elucidation of the meaning of a number of the core concepts in the canon of the history of political thought. Skinner's views have changed somewhat since 1969. Indeed, from the mid 1970s onwards he came to relax the strict opposition to the idea of conceptual history to which he was then committed. The paper concludes by noting that this evolution in Skinner's thinking has made him much more sympathetic than anybody reading “Meaning and Understanding in the History of Ideas” would have imagined to the research project of the Begriffgeschichte School of conceptual history. (shrink)
One of the most influential and significant developments in the philosophy of language over the last thirty years has been the rise of externalist conceptions of content. This essay aims to explore the implications of a form of externalism, largely derived from the work of Donald Davidson, for thinking about history, and in so doing to suggest one way in which contemporary philosophy of language may engage with contemporary philosophy of history. Much of the discussion focuses on the (...) elaboration of the externalism that is at issue, along with the holistic approach to content with which it is connected. It will be argued that such holistic externalism is itself thoroughly in keeping with the very character of historical inquiry itself, and can be seen to provide an underpinning to certain contemporary developments in historical thinking. (shrink)
Contemporary caution against anachronism in intellectual history, and the currently momentous theoretical emphasis on subjectivity in the philosophy of mind, are two prevailing conditions that set puzzling constraints for studies in the history of philosophical psychology. The former urges against assuming ideas, motives, and concepts that are alien to the historical intellectual setting under study, and combined with the latter suggests caution in relying on our intuitions regarding subjectivity due to the historically contingent characterizations it has attained in (...) contemporary philosophy of mind. In the face of these conditions, our paper raises a question of what we call non-textual (as opposed to contextual) standards of interpretation of historical texts, and proceeds to explore subjectivity as such a standard. Non-textual standards are defined as (heuristic) postulations of features of the world or our experience of it that we must suppose to be immune to historical variation in order to understand a historical text. Although the postulation of such standards is often so obvious that the fact of our doing so is not noticed at all, we argue that the problems in certain special cases, such as that of subjectivity, force us to pay attention to the methodological questions involved. Taking into account both recent methodological discussion and the problems inherent in two de facto denials of the relevance of subjectivity for historical theories, we argue that there are good grounds for the adoption of subjectivity as a non-textual standard for historical work in philosophical psychology. (shrink)
Philosophers' reflections on history have been dominated for decades by two themes: representation and memory. On both of these accounts, historical inquiry is divided by a certain gap from what it seeks to find or wants to know, and its activity is seen by philosophers as that of bridging this gap. Against this background, the concept of experience, in spite of its apparent rootedness in the present, can be revived as a means of thinking about our connection to the (...) past. After examining variants on the concept of experience, with special attention to its temporality, I argue in this essay that experience can be said to furnish a connection to the past that underlies both memory and representation. (shrink)
Abstract Contrary to most modern interpretations, in the early modern period, history was an indispensable resource for many philosophers. The different uses of history by Bacon, Gassendi, Locke, and Hume are explored to establish the role of history as a resource in early-modern philosophy.
In this paper I argue that, in at least two cases - his discussions of the temporal precedence o f polytheism over monotheism and of the origins of civil society - we see Hume consigning to historical development certain aspects of reason which, as a comparison with Locke will show, have sometimes been held to be uniform. In the first of these cases Hume has recourse to claims about the general historical development of human thought. In the second case, the (...) origin of the civil institution of justice and government is not linked directly to external circumstances and the principles of human nature, as it is in contractarian theories, but makes a detour through the historical acquisition of certain concepts. Because Hume's position does not conform in any simple sense to Dugald Stewart's 'incontrovertible logical maxim' that the capacities of the human mind have been the same in all ages, Stewart's account of the method of conjectural history is, in any simple sense, inadequate as a description of Hume's practice. (shrink)
Among many important claims, Allen Wood in Kant's Ethical ought proposes that Kant's philosophy of history can be grasped as a "naturalist" approach, grounding human nature in biology. I suggest some reservations. First, I question Kant's conception of biology as (a still emergent) science. Second, I question Kant's extension of his notion of "natural predisposition" to reason and freedom. Third, I question the naturalism of Kant's philosophy of history by suggesting the excessive role providence must play in Kant's (...) account. The upshot is to find Kant's philosophy of history one of the less persuasive elements in his system of thought, despite Wood's energetic effort at a contemporary reconstruction. (shrink)
This article analyzes how the relationship between philosophy and history has been conceived within the study of political thought, and how different ways of conceiving this relationship in turn have affected the definition of the subject matter as well as the choice of methods within this field. My main argument is that the ways in which we conceive this relationship is dependent on the assumptions we make about the ontological status of concepts and their meaning. I start by discussing (...) the widespread view that philosophy and history ought to be viewed as distinct if not incompatible ways of studying political thought, and then go on to describe the view that philosophical and historical approaches should be conceived of as identical or inseparable. I end this article by suggesting that these approaches rather should be viewed as mutually constitutive for the benefit of a more coherent study of political thought. (shrink)