This paper distinguishes five key interpretations of the argument presented by Wittgenstein in Philosophical Investigations I, §258. I also argue that on none of these five interpretations is the argument cogent. The paper is primarily concerned with the most popular interpretation of the argument: that which that makes it rest upon the principle that one can be said to follow a rule only if there exists a 'useable criterion of successful performance' (Pears) or 'operational standard of correctness' (Glock) for its (...) correct application. This principle, I suggest, is untrue. The private language argument upon which it rests therefore fails. (shrink)
This book discusses one of the central problems in the philosophy of law--the question of legal determinacy. Is the law a seamless web or are there gaps? Bix argues that the major re-thinking of the common and "common sense" views about law that have been proposed by various recent legal theories is unnecessary. He offers a reconsideration of the role of language in the law, and the way ideas about language have been used and misused in recent legal (...) theory. He explores in depth the relationship to legal theory of Hart's influential idea of "open texture," Dworkin's interpretative approach to law, and Wittgenstein's philosophy. (shrink)
Machine generated contents note: -- 1. The Value of Vagueness, Timothy Endicott -- 2. Vagueness and the Guidance of Action, Jeremy Waldron -- 3. What Vagueness and Inconsistency tell us about Interpretation, Scott Soames -- 4. Textualism and the Discovery of Rights, John Perry -- 5. The Intentionalism of Textualism, Stephen Neale -- 6. Can the Law Imply More than It Says? On some pragmatic aspects of Strategic Speech, Andrei Marmor -- 7. Modeling Legal Rules, Richard Holton -- 8. Trying (...) to Kill the Dead: De Dicto and De Re Intention in Attempted Crimes, Gideon Yaffe -- 9. Philosophy of Language and the Law of Contracts, Gideon Rosen -- 10. Language and Law: Who's in Charge?, Mark Greenberg -- 11. Meaning and Impact, Nicos Stavropoulos. (shrink)
Unit I. Fundamental characteristics of the common law. The source of law -- The jury -- The adversary system of trial -- Retroactivity: a return to stare decisis -- Unit II. The courts and their jurisdiction. Court systems in the United States -- Court system in England -- Unit III. Constitutional law. Judicial review -- Equal protection -- Freedom of speech -- Appendix I. Constitution of the United States -- Appendix II. Table of Supreme Court cases -- Appendix III. Common (...) case citations. (shrink)
This paper constitutes a critical exploration of the functional features underpinning the unconscious of institutional attachment—namely an attachment which is understood in terms of the subject-infant’s love for his institutional parent-power holder, and the indefinite need for a subject to remain within its infantile condition under the parenthood of the State. We venture beyond the Paternal metaphor and move towards the neglected metaphor of the Mother, so focal in the individual process of identification, assumption of language and the permanent (...) attachment to the space of prohibition and Law. A new position in Language is defined. To understand how the psychic space of the infant is artfully subjugated in the making of the Western culture and domination of the Western system of legal interpretation, an enquiry into the legal emblematic history of representations is necessary to map the process through which the subject learns its legal self and relationship with otherness through what Pierre Legendre coined as the Occidental Mirror and the triangular logic of reflexivity. A final enquiry interrogates the way the legal institution places itself in the position of the specular image that captivates the subject-infant within a procreated legal order, a law-giving and law abiding life starting from the laws of the familial structure reinforced by the role of the parents and by analogy, by the State assuming that role in the institutional life of the ad infinitum infant. (shrink)
First words on silence -- The secret of literary silence -- Law, "life/living," language -- Between Derrida and Agamben -- The wild child : politics and ethics of the name -- The wild child and scientific names -- HumAnimal acts : potentiality or movement as rest.
First words on silence -- The secret of literary silence -- Law, "life/living," language -- Between Derrida and Agamben -- The wild child : politics and ethics of the name -- The wild child and scientific names -- HumAnimal acts : potentiality or movement as rest.
The Grammar of Criminal Law is a 3-volume work that addresses the field of international and comparative criminal law, with its primary focus on the issues of international concern, ranging from genocide, to domestic efforts to combat terrorism, to torture, and to other international crimes. The first volume is devoted to foundational issues. The Grammar of Criminal Law is unique in its systematic emphasis on the relationship between language and legal theory; there is no comparable comparative study of legal (...)language. Written in the spirit of Fletcher's classic Rethinking Criminal Law, this work is essential reading in the field of international and comparative law. (shrink)
This book explores two basic questions regarding constitutional theory. First, in view of a commitment to democratic self-rule and widespread disagreement on questions of value, how is the creation of a legitimate constitutional regime possible? Second, what must be true about a constitution if the regime that it supports is to retain its claim to legitimacy? Howard Schweber shows that the answers to these questions appear in a theory of constitutional language that combines democratic theory with constitutional philosophy. The (...) creation of a legitimate constitutional regime depends on a shared commitment to a particular and specialized form of language. Out of this simple observation, Schweber develops arguments about the characteristics of constitutional language, the necessary differences between constitutional language and the language of ordinary law or morality, as well as the authority of officials such as judges to engage in constitutional review of laws. (shrink)
Our world is full of fictional devices that let people feel better about their situation - through deception and self-deception. The legal realist, Felix Cohen, argued that law and legal reasoning is full of similarly dubious labels and bad reasoning, though of a special kind. He argued that judges, lawyers and legal commentators allow linguistic inventions and conventions to distort their thinking. Like the ancient peoples who built idols out of stone and wood and then asked them for assistance and (...) guidance, Cohen argued that within the legal world people tend to create legal concepts and then think that these concepts do or should determine how social disputes must be The philosopher Ludwig Wittgenstein similarly spoke of the way we fool ourselves, when we use a noun for some matter, and then assume that, because nouns usually name objects, here as well there must be some entity that exists out in the world, whose nature can be discovered. Our grammar misleads us. This article explores some of the ways, particularly in contract law and family law, that we have been led astray by our legal language. Because we only rarely have an Oliver Wendell Holmes, Jr., or a Felix Cohen to keep us in line, we need to learn to do the important work ourselves. The great danger is the way that inaccurate language can so easily change our substantive views about what is natural or what is right. If transparency is difficult in legal language, much of the fault may lie with lawyers and judges who want to make their conclusions sound more reasonable, less controversial, and more appealing: so we call it "consent" and "waiver" and "meeting of the minds" and "best interests of the child," when it is in fact something quite different. And at least in the common law systems the process of reasoning and law-making is tied strongly to the past. The new case has to fit into the categories and concepts that we created for a prior case - fitting cases that came up hundreds of years before, in a different society, with different technology, facing a different set of problems. So judges often end up stretching the meaning of concepts, or using legal fictions to bridge the old rule with the new equities. We may never entirely escape the tendency of our own language to mislead us, but clarity in thought and analysis is something towards which we should struggle constantly, and with determination. (shrink)
Abstract This essay argues that Pufendorf conceived the principles of natural law against the rationalism and innatism of the 17th century, and that Condillac similarly formulated a conception of the human origin of language, both of them thus securing open and human foundations for the two primal institutions of law and language, and also making all citizens free agents in the ordering of communal living.
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 article explores the manner in which politico-legal language makes use of metaphors of violence and destruction in order to describe state/legal functions and actions. It argues that although such use of a militaristic hyperbole is generally regarded as normal and appropriate, it is in fact harmful in the way that it presents complex and specific problems as being simple and abstract. From a semiotic point of view, and using the work of Roland Barthes, law is regarded as a (...) system of signs and ‘combative’ legal language can be seen as ideological manipulation through the technique of so-called second-level signification (myth). Although it is conceded that law, similar to all other interpretive systems, cannot avoid the use of metaphoric language, it is argued that we should resist regarding legal language as neutral and ‘natural’ and that we should rather retain the memory of legal concepts and categories as historical, man-made, and therefore always open to revision. (shrink)
Many scholars assume a connection between the evolution of language and that of distinctively human group-level morality. Unfortunately, such thinkers frequently downplay a central implication of modern Darwinian theory, which precludes the possibility of innate psychological mechanisms evolving to benefit the group at the expense of the individual. Group level moral regulation is indeed central to public life in all known human communities. The production of speech acts would be impossible without this. The challenge, therefore, is to explain on (...) a Darwinian basis how life could have become subject to the rule of law. Only then will we have an appropriate social framework in which to contextualize our models of how language may have evolved. (shrink)
The volume presents a set of invited papers based on analyses of legal discourse drawn from a number of international contexts where often the English language ...
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.
This paper discusses the difference between the factual and the legal, both as to terms and as to statements, on the analogy of the methodologists' distinction of the observational and the theoretical. No absolute distinction exists, and pure `brute facts' do not exist in law because of the socialisation of physical world and juridification of the social world.; also, the effect of evidentiary constraints. Law/fact distinction depends on `applicability rules'. The problem of `mixed terms' is partly a matter of judicial (...) pragmatics, partly to do with the character of applicability rules, and their extensiveness. Semantic realism versus semantic instrumentalism in respect of legal terms -- the latter preferred. Tendency to abstract terms in advanced legal orders. (shrink)
This article reflects on the received view of the rupture which constitutes the beginning of a critical, ethical, political and legal opening, the understanding of which inhabits the cry of, and response to, injustice. It takes the very critique that feeds into, and is distorted by, practical reasoning, as its point of departure. Grasping this rupture as the complementary relation between deconstruction and radical alterity, would entail unreflectively accepting a certain kind of truthfulness—truthfulness as [in]correctness, manifesting in a relationship that (...) involves rootless and controlling movement of making and unmaking of world. In closely reading Wittgenstein and Heidegger on the level of seeing, showing and saying, truthfulness is shown to contain an essential tension between, on the one hand, the Socratic, metaphysically-bound notion of beingness, correctness and meaning-steering and, on the other hand, the pre-Socratic notion of unconcealment (a-lethia), which, pointing even earlier than pre-Socratics into aboriginality, involves attentive letting of gliding in the inexpressible saying of language. While steering is about generating new possibilities of expressibility, gliding is about poetic dwelling, or enduring inexpressibility as a constitutive part of saying. Although aletheia is taken to be the key influence on rootless post-foundational thinking, it is argued that unconcealment involves letting and enduring the presencing inexpressibility of place and home-coming, that is, worlding-rootedness; thus showing Heidegger’s originary politics as the district of the uncanny to be about worlding that attentively lets the presencing inexpressibility of earth be as place. In reading Heidegger’s views on humanism, beginning and language, the argument links inexpressibility—essentially and historically—to the grasping of the belongingness together of world, earth and place, viewing this belongingness as key to both the saying of art and of mortals dwelling together temporally, spatially, materially in a manner always strange to, and nearer than, the steering/controlling of beingness, time, space and place that the very gesture and emergence of critique is captive of and is not capable of attuning to and capturing. Art always estranges the metaphysical cycle of correctness which preserves pain and suffering—a cycle that inhabits a double bind of responding to violence and injustice generated by the violence of metaphysics with metaphysical violence and justice. In showing essential strife within truthfulness itself, Heidegger points to even greater and earlier problematic than the pre-Socratics—to the painful core of inexpressibility between the ontology of steering time, spaces and material—steering places—and the gliding temporality, spatiality and materiality of ontology of place. (shrink)
To assess the utility of appeals to natural law as a way of projecting ethical claims across ideological and cultural boundaries, three examples of such appeals in just war theory are critically analyzed and evaluated: those of contemporary international lawyers Myres McDougal and Florentino Feliciano, theological ethicist Paul Ramsey, and Franciscus de Victoria, a sixteenth-century Spanish theorist whose recasting of Christian just war thought gave rise to secular international law. The conclusion is that natural-law appeals today can no longer (...) depend on their own self-evidence, but must be attempts to uncover commonality as to what is natural. (shrink)
The Court of Justice of the European Union (CJEU) and the way in which it works can be seen as a microcosm of how a multilingual, multicultural supranationalisation process and legal order can be constructed—the Court is a microcosm of the EU as a whole and in particular of EU law. The multilingual jurisprudence produced by the CJEU is necessarily shaped by the dynamics within that institution and by the ‘cultural compromises’ at play in the production process. The resultant texts, (...) which make up that jurisprudence, are hybrid in nature and inherently approximate. On the one hand, that approximation can lead to discrepancies between language versions of the Court’s case law and thus jeopardise the uniform application of EU law. On the other hand, that approximation and hybridity define EU law as a distinct, supranational legal order. This paper analyses the operation of the CJEU and considers whether a linguistic cultural compromise exists within that institution which exercises a formative influence on the character of its ‘output’—i.e. its jurisprudence—and what that may mean for our understanding of the development of EU law. (shrink)
This essay examines the capacity of language (‘word’) to convey what there is (‘world’). It draws on philosophical thought, which it seeks to apply to law while making specific reference to comparative legal studies, that is, to the investigation of law that is foreign to its interpreter.
This paper proposes a semiotic theory of norms—what I term normative semiotics. The paper’s central contention is that social norms are a language. Moreover, it is a language that we instinctively learn to speak. Normative behaviour is a mode of communication, the intelligibility of which allows us to establish cooperative relationships with others. Normative behaviour communicates an actor’s potential as a cooperative partner. Compliance with a norm is an act of communication: compliance signals cooperativeness; noncompliance signals uncooperativeness. An (...) evolutionary model is proposed to explain how this comes about: evolution has generated an instinctual proficiency in working with these signals much like a language—a proficiency that manifests in an emotional context. We see these social rules as possessing a certain ‘rightness’ in normative terms. This adaptive trait is what we call internalization. Internalization enhances the individual’s ability to speak this code. Because these signals communicate who is and who is not a reliable co-operator, sending and receiving cooperation signals is crucial to individual survival. Individuals who internalized the entire process and thus became more adept at speaking the language were at an advantage. Law seeks to shape the language of norms by maintaining the collective standards of society; as such, understanding how and why this normative language emerges is critical to understanding a core function of law. (shrink)
I discuss the ubiquity of power law distributions in language organisation (and elsewhere), and argue against Millerâs (The mating mind: How sexual choice shaped the evolution of human nature, William Heinemann, London, 2000) argument that large vocabulary size is a consequence of sexual selection. Instead I argue that power law distributions are evidence that languages are best modelled as dynamical systems but raise some issues for models of iterated language learning.
Fodor and Pylyshyn's critique of connectionism has posed a challenge to connectionists: Adequately explain such nomological regularities as systematicity and productivity without postulating a "language of thought" (LOT). Some connectionists like Smolensky took the challenge very seriously, and attempted to meet it by developing models that were supposed to be non-classical. At the core of these attempts lies the claim that connectionist models can provide a representational system with a combinatorial syntax and processes sensitive to syntactic structure. They are (...) not implementation models because, it is claimed, the way they obtain syntax and structure sensitivity is not "concatenative," hence "radically different" from the way classicists handle them. In this paper, I offer an analysis of what it is to physically satisfy/realize a formal system. In this context, I examine the minimal truth-conditions of LOT Hypothesis. From my analysis it will follow that concatenative realization of formal systems is irrelevant to LOTH since the very notion of LOT is indifferent to such an implementation level issue as concatenation. I will conclude that to the extent to which they can explain the law-like cognitive regularities, a certain class of connectionist models proposed as radical alternatives to the classical LOT paradigm will in fact turn out to be LOT models, even though new and potentially very exciting ones. (shrink)
Two recurrent arguments levelled against the view that enduring objects survive change are examined within the framework of the B-theory of time: the argument from Leibniz's Law and the argument from Instantiation of Incompatible Properties. Both arguments are shown to be question-begging and hence unsuccessful.
Do citizens have an obligation to obey the law? This book differs from standard approaches by shifting from the language of obedience (orders) to that of deference (normative judgments). The popular view that law claims authority but does not have it is here reversed on both counts: Law does not claim authority but has it. Though the focus is on political obligation, the author approaches that issue indirectly by first developing a more general account of when deference is due (...) to the view of others. Two standard practices that political theorists often consider in exploring the question of political obligation - fair-play and promise-keeping - can themselves be seen as examples of a duty of deference. In this respect the book defends a more general theory of ethics whose scope extends beyond the question of political obligation to questions of duty in the case of law, promises, fair play and friendship. (shrink)
Neither the English courts nor the National Health Service (NHS) have been immune to the modern mantra of patient choice. This article examines whether beneath the rhetoric any form of real choice is endorsed either in law or in NHS policy. I explore the case law on ‘consent’, look at choice within the NHS and highlight the dilemmas that a mismatch of language and practice poses for clinicians. Given the variance in interpretation and lack of consistency for the individual (...) patient I argue for a semantic change that obviates the use of ‘choice’, focussing instead on the options for treatment that are available and accessible, with due acknowledgement of individual patient preferences, without raising unfettered and false expectations. (shrink)
Recently, a number of Anglo-American philosophers of very different sorts--pragmatists, metaphysicians, philosophers of language, philosophers of law, moral philosophers--have taken a reflective rather than merely recreational interest in literature. Does this literary turn mean that philosophy is coming to an end or merely down to earth? In this collection of essays, one of the most insightful of contemporary literary theorists investigates the intersection of literature and philosophy, analyzing the emerging preferences for practice over theory, particulars over universals, events over (...) structures, inhabitants over spectators, an ethics of responsibility over a morality of rules, and a desire for intimacy with the world instead of simply a disengaged knowledge of it. (shrink)
Language suggestive of natural law ethics, similar to the Catholic understanding of ethical foundations, is prevalent in a number of disciplines. But it does not always issue in a full-blooded commitment to objective ethics, being undermined by relativist ethical currents. In law and politics, there is a robust conception of "human rights", but it has become somewhat detached from both the worth of persons in themselves and from duties. In education, talk of "values" imports ethical considerations but hints at (...) a subjectivist view of them. In the psychology and sociology of drug use, ethically thin concepts of "harm minimisation" and "selfimage" dominate discussion and distract attention from the virtue of temperance and the training of character. A more forceful assertion of an ethics based on the worth of persons in these cases would be most desirable. Arguments against objectivity in the fundamentals may be replied to by examining the parallel between ethics and the discipline whose objectivity has been least challenged by relativist arguments, mathematics. (shrink)
Peter Morton provides in these pages a fundamental critique of the assumptions of positivist jurisprudence and also puts forth an attack on the foundationalism of contemporary legal philosophy. His prime concern is to distinguish between the different fields of law--penal, civil, and public--taking as his starting point a careful analysis of those institutions in a democracy wherein legal language and norms are in fact generated. Offering an original, coherent, and systematic exposition of law in today's society, Morton sheds new (...) light on legal practices and relations by way of a comparison with an ideal type of legal system. (shrink)
Cognitive science is transforming our understanding of the mind. New discoveries are changing how we comprehend not just language, but thought itself. Yet, surprisingly little of the new learning has penetrated discussions and analysis of the most important social institution affecting our lives-the law. Drawing on work in philosophy, psychology, anthropology, linguistics, and literary theory, Steven L. Winter has created nothing less than a tour de force of interdisciplinary (...) analysis. A Clearing in the Forest rests on the simple notion that the better we understand the workings of the mind, the better we will understand all its products-especially law. Legal studies today focus on analytic skills and grand normative theories. But, to understand how real-world, legal actors reason and decide, we need a different set of tools. Cognitive science provides those tools, opening a window on the imaginative, yet orderly mental processes that animate thinking and decisionmaking among lawyers, judges, and lay persons alike. Recent findings about how humans actually categorize and reason make it possible to explain legal reasoning in new, more cogent, more productive ways. A Clearing in the Forest is a compelling meditation on both how the law works and what it all means. In uncovering the irrepressibly imaginative, creative quality of human reason, Winter shows how what we are learning about the mind changes not only our understanding of law, but ultimately of ourselves. He charts a unique course to understanding the world we inhabit, showing us the way to the clearing in the forest. (shrink)
The Concept of Law is the most important and original work of legal philosophy written this century. First published in 1961, it is considered the masterpiece of H.L.A. Hart's enormous contribution to the study of jurisprudence and legal philosophy. Its elegant language and balanced arguments have sparked wide debate and unprecedented growth in the quantity and quality of scholarship in this area--much of it devoted to attacking or defending Hart's theories. Principal among Hart's critics is renowned lawyer and political (...) philosopher Ronald Dworkin who in the 1970s and 80s mounted a series of challenges to Hart's Concept of Law. It seemed that Hart let these challenges go unanswered until, after his death in 1992, his answer to Dworkin's criticism was discovered among his papers. In this valuable and long-awaited new edition Hart presents an Epilogue in which he answers Dworkin and some of his other most influential critics including Fuller and Finnis. Written with the same clarity and candor for which the first edition is famous, the Epilogue offers a sharper interpretation of Hart's own views, rebuffs the arguments of critics like Dworkin, and powerfully asserts that they have based their criticisms on a faulty understanding of Hart's work. Hart demonstrates that Dworkin's views are in fact strikingly similar to his own. In a final analysis, Hart's response leaves Dworkin's criticisms considerably weakened and his positions largely in question. Containing Hart's final and powerful response to Dworkin in addition to the revised text of the original Concept of Law, this thought-provoking and persuasively argued volume is essential reading for lawyers and philosophers throughout the world. (shrink)
The cogito ergo sum of Descartes is one of the best-known--and simplest--of all philosophical formulations, but ever since it was first propounded it has defied any formal accounting of its validity. How is it that so simple and important an argument has caused such difficulty and such philosophical controversy? In this pioneering work, Jerrold Katz argues that the problem with the cogito lies where it is least suspected--in a deficiency in the theory of language and logic that Cartesian scholars (...) have brought to the study of the cogito. Katz contends that the laws of traditional logic have distorted Descartes's reasoning so that it no longer fits either Descartes's own account of the cogito in his writings or the role he assigns it in his project. Katz proposes that the cogito can be understood as an example of "analytic entailment," a concept in the philosophy of language whereby a statement can be a formally valid inference without depending on a law of logic. Developing and defending his thesis, he shows us that by grappling with an historical philosophical problem it is possible to make an original contribution to the advance of contemporary philosopy. (shrink)
Rules are a central component of such diverse enterprises as law, morality, language, games, religion, etiquette, and family governance, but there is often confusion about what a rule is, and what rules do. Offering a comprehensive philosophical analysis of these questions, this book challenges much of the existing legal, jurisprudential, and philosophical literature, by seeing a significant role for rules, an equally significant role for their stricter operation, and making the case for rules as devices for the allocation of (...) power among decision-makers. (shrink)
The origins of these essays -- Introduction -- Presupposition -- A projection problem for speaker presupposition -- Language and linguistic competence -- Linguistics and psychology -- Semantics and psychology -- Semantics and semantic competence -- The necessity argument -- Truth, meaning, and understanding -- Truth and meaning in perspective -- Semantics and pragmatics -- Naming and asserting -- The gap between meaning and assertion : why what we literally say often differs from what our words literally mean -- Drawing (...) the line between meaning and implicaturem and relating both to assertion -- Descriptions -- Incomplete definite descriptions -- Donnellan's referential/attributive distinction -- Why incomplete descriptions don't refute Russell's theory of descriptions -- Meaning and use : lessons for legal interpretation -- Interpreting legal texts : what is and what is not special about the law. (shrink)
Can there be a non-reductivist, source-based explanation of the use of normative language in statements describing the law and legal situations? This problem was formulated by Joseph Raz, who also claimed to have solved it. According to his well-known doctrine of ‘detached’ statements, normative legal statements can be informatively made by speakers who merely adopt, without necessarily sharing, the point of view of someone who accepts that legal norms are justified and ought to be followed. In this paper I (...) defend two theses. I argue, first, that the notion of a detached statement cannot be made to work, and that Raz’s problem is thus not thereby solved. But the problem itself, I also suggest, is a false one. (shrink)
This paper asks whether the criminal law can have any legitimate concern with obscene language. At most, such a concern could be justified by the need to protect auditors from offense, since it is not plausible to think of exposure to dirty words as harmful or inherently immoral. A distinction is drawn between bare utterance and instant offense, on the one hand, and offensive nuisance and harassment, on the other. Only when obscene language is used to harass can (...) it properly be made criminal. Finally, I criticize in some detail judicial reasoning in the case of F.C.C. v. Pacifica Foundation, and conclude that obscene language on the public media is not properly subject to governmental regulation, whether- by criminal law or otherwise. *** DIRECT SUPPORT *** A9102008 00002. (shrink)
Two Kinds of Vagueness When signing up for insurance benefits at my job, I was asked, “Do you have children, and if so are they young enough to be included on your policy?” I replied that I had two children, both of whom were over 21. The benefits officer responded, “That’s too vague. In some circumstances children of covered employees are eligible for benefits up to their 26th birthday. I need their ages to determine whether they can be included on (...) your policy.” She was right; my remark was too vague. The information it provided was insufficiently specific to advance our common conversational purpose. However, it was not vague, or at any rate not too vague, in the sense in which philosophical logicians and philosophers of language study vagueness. Vague predicates – like ‘old’, ‘bald’, ‘rich’, and ‘red’ – are those for which there are “borderline cases” separating things to which the predicate clearly applies from those to which it clearly does not. When o is a borderline case for a predicate P, there is, in some sense, “no saying” whether or not the proposition expressed by That/he/she/it is P (said demonstrating o) is true. According to some theories of vagueness, the proposition is undefined for truth, or untruth, and so can’t correctly be characterized either way. According to others, it is true or false -- even though it is impossible, in principle, to know which. On still other theories, it is only partially true (or true to some degree). For present purposes we needn’t worry about which of these theories is correct, or which is most illuminating in discussions of the law. The present point is simpler. The problem with my remark to the benefits officer – the sense in which it was too vague – is not a matter of its susceptibility to borderline cases. What I stated, on December 10, 2009, was that my two children were both over 21 years old then. That statement is true if and only if both were born on or before.... (shrink)
Roy Sorensen has argued that vagueness in the law cannot be justified by appeal to the value of power-delegation, and thereby threatens to take away one of the main reasons for thinking that vagueness can be valuable to law. Delegation of power to officials is justified, he thinks, only if these officials are in a better position to discover whether a particular x is F, a condition not satisfied in cases of vagueness. I argue that Sorensen’s argument is unsound: delegation (...) of power can be valuable even if the delegates are not in a better position to answer that question. (shrink)
Some argue that law is the discipline which has mixed most prominently with bioethics, and that bioethicists can be seduced by the law and by legal procedures. While there is a great consensus that law has influenced bioethics in significant and important ways, certainly much more than it influenced other "law and..." disciplines, scholars dispute as to the exact role which the law plays in bioethics, the goals it purports to achieve and the implications of its relationship with the discipline (...) of bioethics. This Article aims to explore the relationship between law and bioethics and calls for a careful evaluation of the law's contributions to bioethics. Specifically, it will be argued that while the law contributed extensively to the development of bioethics it introduced a language and a way of thinking that are not necessarily appropriate to handle and resolve bioethical issues, and which, in significant portion of cases, was irrelevant and had little impact on decision-making and behavioral patterns of patients. Moreover, law's interference with and shape of bioethical issues resulted in serious threats to some of the major characteristic of such issues and brought about to other societal concerns which the law did not consider seriously. The article will conclude that it is now time to re-evaluate the direction in which bioethics should take in the next years, specifically whether it should continue to integrate with law or other disciplines, or alternatively become a more autonomous and independent discipline. (shrink)
The Leibniz Center for Law is involved in the project Digitale Uitwisseling Ruimtelijke Plannen [DURP (http://www.vrom.nl/durp); digital exchange of spatial plans] which develops a XML-based digital exchange format for spatial regulations. Involvement in the DURP project offers new possibilities to study a legal area that hasn’t yet been studied to the extent it deserves in the field of Computer Science & Law. We studied and criticised the work of the DURP project and the Dutch Ministry of internal affairs on metadata (...) for regulatory documents, and made an inventory of issues related to legal knowledge representation that it felt were not sufficiently covered by current initiatives in the Geographic Information Systems (GIS) field. This inventory was an input to the DURP standardisation effort. In a second phase of the project we extended the METALex XML schema (cf. Boer et al. 2002; Boer et al. 2003) for ‚regular’ legal sources that we developed in the past for geospatial regulatory information, in order to support exchange of spatial regulations, including the associated geospatial information in the form of maps. We developed a prototype application and demonstrated how the spatial planning information in GML can be combined with XML with only minimal changes, using the Web Ontology Language (OWL). This paper describes our experiences. (shrink)
We offer a theory regarding the symbolism of the human body in legal discourse. The theory blends legal theory, the neuroscience of empathy, and biosemiotics, a branch of semiotics that combines semiotics with theoretical biology. Our theory posits that this symbolism of the body is not solely a metaphor or semiotic sign of how law is cognitively structured in the mind. We propose that it also signifies neurobiological mechanisms of social emotion in the brain that are involved in the social (...) and moral decision-making and behavior that law generally seeks to govern. Specifically, we hypothesize that the symbol of a collective human body in the language of law signifies neural mechanisms of pain empathy which generate a virtual, neurally simulated, emotional sense of sharing the feelings or pain of others and of thereby being one-in-body with or virtually equal to them. We speculate that this may be the neural basis of what is signified in legal and political theory as the “body politic” or “sense of equality,” because neuroscience and psychiatry further suggest that such pain empathy may provide the natural, emotional motivation to think and act in a rights-based manner. We conclude that misunderstanding of these neural mechanisms of pain empathy and related misinterpretation of this corporeal symbolism for the same may have long resulted in legal discourse that misinterprets the function of “pain” in the law and misinterprets the associated positive law, specifically the law regarding individual, equality-based rights and criminal justice, in particular, punishment theory. (shrink)
Legal codes, such as the Uniform Commercial Code (UCC) examined in this article, are good points of entry for AI and ontology work because of their more straightforward adaptability to relationship linking and rules-based encoding. However, approaches relying on encoding solely on formal code structure are incomplete, missing the rich experience of practitioner expertise that identifies key relationships and decision criteria often supplied by experienced practitioners and process experts from various disciplines (e.g., sociology, political economics, logistics, operations research). This research (...) focuses on the UCC because it transcends the limitations of a formal code, functioning essentially as a composite. AI work can benefit from real-world codes like the UCC, which are essentially formal codes enlightened from a more realistic experience-base from centuries of development in international commercial transactions settings. This paper then describes our initial work in converting an expert system on the U.S. law governing the sale of goods from Article II of the Uniform Commercial Code (UCC), into a knowledge-based system using the Web Ontology Language OWL. (shrink)
Estudio en el que se intenta exponer y definir los diferentes tipos del lenguaje como el jurídico, el teológico y el ascético-místico en Miftāḥ al-sa‘āda [Llave de la felicidad] de Ibn al-‘Arīf. Tipos que son analizados pormenorizadamente, para concluir con la influencia del lenguaje sufí de Ibn al-‘Arīf en la obra de Ibn ‘Arabī, apoyándonos tanto en consideraciones de índole semántica como mística.
To be presented at an International Conference on Law, Language, and Interpretation, at the University of Akureyri, Akureyri, Iceland, April 1-2, 2007.
In this article, I argue that - despite the absence of any clear influence of one theory on the other - the legal theories of Dworkin and Hegel share several similar and, at times, unique positions that join them together within a distinctive school of legal theory, sharing a middle position between natural law and legal positivism. In addition, each theory can help the other in addressing certain internal difficulties. By recognizing both Hegel and Dworkin as proponents of a position (...) lying in between natural law and legal positivist jurisprudence, we can gain clarity in why their general legal theories seem to fit uncomfortably, if indeed they can be said to fit at all, within so many different camps - while fitting comfortably in no particular camp - as well as highlight what has been overlooked. (shrink)
We all know that much in our thought and language, as well as much in the law, is vague. We are also reasonably good at recognizing cases of vagueness, even though most of us would be hard pressed to say exactly what vagueness is. In recent decades, there has been a flowering of work in the philosophy of logic and language attempting to do just that. Much of this work focuses on what it is for a word or (...) phrase to be vague. The aim of this effort is to clarify what it is for a claim, question, command, or promise expressed using such a term to be vague, as well as what it is to reason with such terms. Different logico-linguistic theories have different conceptions of the scope of putative laws of classical logic, including bivalence (which states that every declarative sentence or proposition is either true or false) and excluded middle (which asserts all instances of A or ~A). In addition to this work in philosophical logic, recent decades have seen a growing interest in vagueness among legal scholars and philosophers of law. Here the focus is not so much on what legal vagueness is, which is generally assumed to be readily recognizable. Rather, it is on the extent and sources of vagueness in the law, the implications of vagueness for interpretation and adjudication, the systemic effects of vagueness, and the function – i.e. important positive value – of vagueness in certain areas of the law, as opposed to its disutility in others.1 To date, these two investigations of vagueness – in philosophical logic and the philosophy of law – have been largely independent of one another. This independence gives rise to a natural line of questioning. Can work in one domain contribute to work in.. (shrink)
Do we conduct our conscious propositional thinking in natural language? Or is such language only peripherally related to human conscious thought-processes? In this paper I shall present a partial defence of the former view, by arguing that the only real alternative is eliminativism about conscious propositional thinking. Following some introductory remarks, I shall state the argument for this conclusion, and show how that conclusion can be true. Thereafter I shall defend each of the three main premises in turn.
EVERY speaker of a language knows a bewildering variety of linguistic facts, and will come to know many more. It is knowledge that connects sound and meaning. Questions about the nature of this knowledge cannot be separated from fundamental questions about the nature of language. The conception of language we should adopt depends on the part it plays in explaining our knowledge of language. This chapter explores options in accounting for language, and our knowledge of (...)language, and defends the view that individuals’ languages are constituted by the standing knowledge they carry from one speech situation to another. (shrink)
Metaethics is the study of metaphysics, epistemology, the philosophy of mind, and the philosophy of language, insofar as they relate to the subject matter of moral or, more broadly, normative discourse – the subject matter of what is good, bad, right or wrong, just, reasonable, rational, what we must or ought to do, or otherwise. But out of these four ‘core’ areas of philosophy, it is plausibly the philosophy of language that is most central to metaethics – and (...) not simply because ‘metaethics’ was for a long time construed more narrowly as a name for the study of moral language. The philosophy of language is central to metaethics because both the advantages of and the open problems facing different metaethical theories differ sharply over the answers those theories give to central questions in the philosophy of language. In fact, among the open problems over which such theories differ, are included particularly further problems in the philosophy of language. This article briefly surveys a range of broad categories of views in metaethics and both catalogues some of the principal issues faced by each in the philosophy of language, as well as how those arise out of their answers to more basic questions in the philosophy of language. I make no claim to completeness, only to raising a variety of important issues. (shrink)
A spectre is haunting legal positivists – and perhaps jurisprudes more generally – the spectre of the normativity of law. Whatever else law is, it is sometimes said, it is normative, and so whatever else a philosophical account of law accounts for, it should account for the normativity of law[1]. But law is at least partially a social matter, its content at least partially determined by social practices. And how can something social and descriptive in this down-to-earth kind of way (...) be normative?[2] This is presumably a problem for any theory of law, but it is especially acute for legal positivism, according to which (roughly speaking) all there is to facts about legality are such descriptive social facts. If this is so, the thought goes, the task of accommodating the law’s normativity immediately becomes both more daunting, and more urgent[3]. Unfortunately, though, it is entirely unclear what the problem of the normativity of law is supposed to be. Indeed, I suspect that there is no one problem here, as different people seem to have in mind different problems when they use this unhelpful phrase[4]. At least one family of issues people seem to have in mind when they talk about the normativity of law is a host of issues pertaining to the reason-giving force of the law. The law, it is sometimes said, gives reasons for action, and a theory of law should accommodate this obvious fact. But even when we focus just on questions regarding the reason-giving force of the law (and from now on I will restrict myself to just those, leaving other things people may have in mind when they talk about the normativity of law for another occasion), it is still not clear what the problem is. Indeed, my main purpose in this paper is to make some progress in understanding the relevant question here. And my conclusion is going to be somewhat skeptical: Once we are clear on what reason-giving in general consists in, and on what reason-giving powers the law actually has, there is not much by way of a problem here that needs to be solved, not a deep and interesting phenomenon here that theories of law need to accommodate, and that therefore places adequacy constraints on plausible theories of the nature of law.. (shrink)
Jerry Fodor's argument for an innate language of thought continues to be a hurdle for researchers arguing that natural languages provide us with richer conceptual systems than our innate cognitive resources. I argue that because the logical/formal terms of natural languages are given a usetheory of meaning, unlike predicates, logical/formal terms might be learned without a mediating internal representation. In that case, our innate representational system might have less logical structure than a natural language, making it possible that (...) we augment our innate representational system and improve our ability to think by learning a natural language. (shrink)
Tort law depends on three key concepts: causation, responsibility, and fault. However, I argue that the three key concepts are neither necessary, nor sufficient, for tort.
Because its business is to resolve disputed issues, the law very often calls on those fields of science where the pressure of commercial interests is most severe. Because the legal system aspires to handle disputes promptly, the scientific questions to which it seeks answers will often be those for which all the evidence is not yet in. Because of its case-specificity, the legal system often demands answers of a kind science is not well-equipped to supply; and, for related reasons, constitutes (...) virtually the entire market for certain fields of forensic science and for certain psychiatric specialties. Because of its adversarial character, the law tends to draw in scientists who are more willing than most to give an opinion on less-than-overwhelming evidence; and the more often such a witness testifies, the more unbudgeably confident he may become in his opinion. Legal rules can make it impossible to bring potentially useful scientific information to light, and the legal penchant for “indicia” and the like can transform scientific subtleties into legal shibboleths. And because of its concern for precedent, and the desideratum of finality, the law sometimes lags behind scientific advances. (shrink)
Abstract: This paper responds to the question posed in the announcement of the conference at Brooklyn Law School at which it was presented: if and how [the inquiry into the reliability of proffered scientific testimony mandated by Daubert] relates to 'truth,' and whose view of the truth should prevail. The first step is to sketch the legal history leading up to Daubert, and to explore some of the difficulties Daubert brought in its wake; the next, to develop an account of (...) truth in the sciences that combines a full acknowledgment of the fallibility and incompleteness of the scientific enterprise with a robustly objective conception of truth - which helps us understand why the legal system often gets less than the best out of science; and finally, exploring the concept of legal truth, to show how false scientific clams sometimes get entrenched as legally reliable. (shrink)
Focused on five prominent scholars of international law, and casting light on the related institutions which frequently engaged them, the present book provides insight into chief currents of international law during the last decades of the twentieth century. Spanning the gap, in some degree, between Anglo-American and continental approaches to international law, the volume consists of short intellectual portraits, combined with interviews, of selected specialists in international law. The interviews were conducted by the editor, Antonio Cassese, between 1993 and 1995 (...) though the present volume was published only last year. -/- Cassese, an Italian jurist and international lawyer, was Professor of International Law at the University of Florence (1975-2008) and specialized in public international law. Among other posts held, he was the first President of the International Criminal Tribunal for the former Yugoslavia, the first President of the Special Tribunal for Lebanon and chaired the UN Inter-national Inquiry into Crimes in Darfur. He authored International Law (2005), a comprehensive commentary on the subject (which makes a fine companion volume to the present book). He was also editor in chief of the Oxford Companion to International Criminal Justice (2009) and founded the Journal of International Criminal Justice. His work has been credited as providing a chief impetus in the revival of international criminal law from its post-Nuremberg hiatus. -/- Cassese seeks to bring out the central ideas associated with each of his five selected scholarly jurist-professors, focusing on international law and international relations; and he aims to place each of the five scholars within the context of their own intellectual and philosophical back-grounds - and their views of the development of the international community. The interviews were based on Cassese’s “basic questionnaire,” which is reproduced in the opening pages of the volume (pp.xvii-xix). Overall, the book provides an engaging, though intricate, perspective on contemporary developments in international law combined with discussion of its roots in the post-WWII era and in legal philosophies. (shrink)
This paper argues that the founding fathers of the tradition of Scottish Enlightenment natural jurisprudence, Gersholm Carmichael (1672–1729) and Francis Hutcheson (1694–1746), articulated a view of rights that is pertinent to the contemporary dominance of the language of rights. Maintaining a metaphysical foundation for rights while drawing upon the early-modern Protestant natural law tradition, their conception of rights is more significantly indebted to the pre-modern scholastic natural law tradition than often realized. This is illustrated by exploring some of the (...) background to their respective theories of rights, detailing the precise reasoning that Carmichael and Hutcheson brought to bear upon their conception of rights, and then exploring their application of their understanding of rights to the question of property. (shrink)
Linguistics is important. An understanding of linguistic principles is as essential to the layperson as it is to the language scholar. Using concrete examples from politics, law, and education, this book shows how people misconceive language every day and what the consequences of misconceptions can be. Since the meanings of words are often fuzzy at best, this volume argues for a flexible approach to meaning and definitions, and demonstrates how this approach can help us understand many conflicts. It (...) is an alternative way of viewing and doing sociolinguistics. Language Misconceived: Arguing for Applied Cognitive Sociolinguistics offers many specific suggestions and guidelines for approaching a linguistic project. The ideas expressed in this book have been class tested for several years. Students enthusiastically appreciate the connections drawn between linguistics and real-life problems. The goal is to help students of sociolinguistics avoid pitfalls that may inhibit research. Language Misconceived: Arguing for Applied Cognitive Sociolinguistics is intended primarily for graduate and Ph.D. students of linguistics, especially those interested in applying linguistics to fields like politics, law, and education. It may also be recommended to seasoned linguists as well as researchers in communication, sociology, psychology, and education. (shrink)
This paper discusses some paradoxical propositions in Chinese tradition, especially the School of Names. It not only explains what Chinese philosophers mean by these propositions and why there are such paradoxes in Chinese philosophy, but also makes an attempt to formulate these paradoxical propositions in the language of symbolic logic. Meanwhile, the paper makes a comparison between Chinese views about contradiction and Aristotle?s law ot non?contradiction and explores the relation between them. It comes to the conclusion that once the (...) difference between Chinese concept of contraries and Aristotle?s is made clear, inconsistency between Chinese paradoxial propositions and Aristotle?s. law of non-contradiction disappears. (shrink)
Abstract: Laws of computer science are prescriptive in nature but can have descriptive analogs in the physical sciences. Here, we describe a law of conservation of information in network programming, and various laws of computational motion (invariants) for programming in general, along with their pedagogical utility. Invariants specify constraints on objects in abstract computational worlds, so we describe language and data abstraction employed by software developers and compare them to Floridi's concept of levels of abstraction. We also consider Floridi's (...) structural account of reality and its fit for describing abstract computational worlds. Being abstract, such worlds are products of programmers' creative imaginations, so any "laws" in these worlds are easily broken. The worlds of computational objects need laws in the form of self-prescribed invariants, but the suspension of these laws might be creative acts. Bending the rules of abstract reality facilitates algorithm design, as we demonstrate through the example of search trees. (shrink)
The empirical nature of our understanding of language is explored. I first show that there are several important and different distinctions between tacit and accessible awareness. I then present empirical evidence concerning our understanding of language. The data suggests that our awareness of sentence-meanings is sometimes merely tacit according to one of these distinctions, but is accessible according to another. I present and defend an interpretation of this mixed view. The present project is shown to impact on several (...) diverse areas, including inferential role semantics and holism, the nature of learning, and the role of linguistics in the law. (shrink)
This paper considers Roberto Unger's views on legal reasoning. His account is defended against two misplaced attacks. The first critique is by Emilios Christodoulidis. Using the language of systems theory, Christodoulidis contends that Unger's programme of democratic experimentalism cannot be achieved through law, as the constitutive structure of the legal system is immune to politics. Christodoulidis accuses Unger of attempting to reduce law to politics. It will be argued, however, that Unger does no such thing. The second attack holds (...) that Unger's criticisms of objectivism apply to his own democratic vision and that, as a result, he cannot promote this vision without self-contradiction. Again, it will be argued that this criticism rests on a misunderstanding of Unger's views. The paper concludes with a tentative objection to the substantive proposals of Unger's work, suggesting that they ought to be replaced by a pluralist account of value. (shrink)
In this article we discuss the notion of a linguistic universal, and possible sources of such invariant properties of natural languages. In the first part, we explore the conceptual issues that arise. In the second part of the paper, we focus on the explanatory potential of horizontal evolution. We particularly focus on two case studies, concerning Zipf’s Law and universal properties of color terms, respectively. We show how computer simulations can be employed to study the large scale, emergent, consequences of (...) psychologically and psychologically motivated assumptions about the working of horizontal language transmission. (shrink)
It is sometimes argued that if PDP networks can be trained to make correct judgements of grammaticality we have an existence proof that there is enough information in the stimulus to permit learning grammar by inductive means alone. This seems inconsistent superficially with Gold's theorem and at a deeper level with the fact that networks are designed on the basis of assumptions about the domain of the function to be learned. To clarify the issue I consider what we should learn (...) from Gold's theorem, then go on to inquire into what it means to say that knowledge is domain specific. I first try sharpening the intuitive notion of domain specific knowledge by reviewing the alleged difference between processing limitatons due to shartage of resources vs shortages of knowledge. After rejecting different formulations of this idea, I suggest that a model is language specific if it transparently refer to entities and facts about language as opposed to entities and facts of more general mathematical domains. This is a useful but not necessary condition. I then suggest that a theory is domain specific if it belongs to a model family which is attuned in a law-like way to domain regularities. This leads to a comparison of PDP and parameter setting models of language learning. I conclude with a novel version of the poverty of stimulus argument. (shrink)
What is the law of the law? What produces our craven subservience to linguistic norms, and our shocking indifference to the phenomenon of universal suffering? In a path-breaking new work of philosophy, Louis Wolcher seeks to answer these questions from the standpoint of Zen Buddhism. Bringing an Eastern sensibility into contact with three of the most important themes in Western philosophy, Beyond Transcendence in Law and Philosophy meticulously investigates three of the twentieth century's most important philosophers: Martin Heidegger - on (...) being, Emmanuel Levinas - on ethics, and Ludwig Wittgenstein - on language. In the context of the larger Western obsession with transcending the ordinary, Louis Wolcher argues that the yearning for transcendence is born of the illusion that there is a fundamental difference between the ordinary and the profound. Employing Zen koans and stories to advance a 'deflationary' view of language and knowledge, he goes on to argue that the norms of transcendence to which we cling are not eternal truths but artefacts of desperate minds adrift on a sea of impermanence. What used to seem so majestically True, Right and Just thus shows itself to be utterly mundane: as merely true, right and just. What is left, however, is not nihilism - for clinging to a view of 'nothingness' is just as deluded as clinging to a view of 'somethingness' - but rather a new beginning of compassionate concern for the suffering of others. Beyond Transcendence in Law and Philosophy is a strikingly original synthesis of Eastern and Western thought. It will enlighten philosophers and legal theorists, as well as those who are interested in or open to the insights of Zen Buddhism. (shrink)
Larry Alexander and Peter Westen each critically examine different topics from my recent collection of essays, The Philosophy of Criminal Law. Alexander focuses on my “Rapes Without Rapists,” “Mistake of Law and Culpability,” and “Already Punished Enough.” Westen offers a more extended commentary on my “Transferred Intent.” I briefly reply to each critic in turn and try to extend the debates in new directions.
In newly emerging democracies, succeeding governments have numerous policy tasks for the purpose of developing the free market and the democratic process. In such legal systems, policy-oriented views of law, which regard law as a policy tool for diminishing public problems, seem descriptively pertinent and prescriptively helpful. This is also the case in mature democratic legal systems, where the public problems faced by governments become more and more complex. Policy-directional views of law do not necessarily imply that law is a (...) value-neutral means that can serve any possible political ends. It is widely recognized among legal theorists and practitioners, with notable exceptions represented by exclusive legal positivists, that the law involves moral values, including justice and liberty. In the present essay, I focus on one version of policy-oriented views of law that is based on the fundamental ideals of justice and interest. By sketching out this version, I attempt to shed new light on some concepts and issues in jurisprudence. To begin, I articulate the concept of justice and identify the difficulties that interest-based conceptions of justice encounter, by referring to some classical works. I also make a distinction between different conceptions of interest. Next, the two basic concepts in law — rights and liberty — are explained in terms of justice and interest. Efficiency, which has been largely neglected in traditional jurisprudence notwithstanding its practical significance, is also briefly discussed. Then, I turn to exploring the implications that the law-as-policy theory grounded on justice and interest might have for the foundations of two legal domains: criminal law and laws governing political participation. Some allegations and objections against this theory are described, and responses to them are given. The essay concludes by noting the questions that remain open in this theory. (shrink)
According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law. It is now safe to say that the view that consent plays an important foundational role in international law is a (...) contested one, perhaps even a minority position, among lawyers and philosophers. In this paper I defend a limited but important role for actual consent in legitimating international law. While actual consent is not necessary for justifying the enforcement of jus cogens norms, at least when they are narrowly understood, this leaves much of international law unaccounted for. By drawing on a Lockean social contract account, I show how, given the ways that international cooperation is different from cooperation in the domestic sphere, actual consent is both a possible and an appropriate legitimating device for much of international law. (shrink)
How should international law figure into the practical reasoning of agents who fall under its jurisdiction? How should the existence of an international legal norm regulating some activity affect a subject’s decision-making about that activity? This is a question concerning the general moral authority of international law. It concerns not simply the kind of authority international law claims, but the character of the authority it actually has. An authority, as I will use the term, is moral obligation producing: if x (...) (e.g., a person, institution, or law) has authority over an agent, then the directives of x produce a significant reason for the agent to comply with the terms of the directive. This paper concerns the sense in which international law, and the law of nascent legal systems generally, generate moral obligations for their subjects, i.e., for those who fall under their claimed jurisdiction. (shrink)
Title III of the Americans with Disabilities Act (ADA) grants people with disabilities access to public accommodations, including the offices of medical providers, equal to that enjoyed by persons without disabilities. The Department of Justice (DOJ) has unequivocally declared that the law requires effective communication between the medical provider and the Deaf patient. Because most medical providers are not fluent in sign language, the DOJ has recognized that effective communication calls for the use of appropriate auxiliary aids, including sign (...)language interpreters. The final decision on what to offer the Deaf patient is the doctor's, and under current DOJ regulations, the doctor does not have to consult with the patient or give "primary consideration" to the patient's choice of auxiliary aid as long as what the doctor offers results in effective communication. However, given the great variation in people's communication styles and skills, a standard, one-size-fits-all auxiliary aid would fail to achieve effective communication in many cases, harming not only that Deaf patient, but also the medical provider, who would be potentially liable for violating the ADA as well as hamstrung in getting accurate information for purposes of diagnosis and treatment. Moreover, most doctors are not savvy about Deafness and Deaf culture. Thus, the best way to ensure effective communication would be to require the medical provider to ask the Deaf patient for his or her choice of auxiliary aid and to give "primary consideration" to the patient's expressed choice of auxiliary aid. Such an approach is required under Title II of the ADA, which makes it mandatory for state and local governments to consult with people with disabilities and give "primary consideration" to the patient's choice of auxiliary aid. Given that there is no difference between a public doctor and a private doctor that would justify the two different approaches and that cost is not a factor, since under either title, a medical provider cannot pass on the costs to the person with a disability, the DOJ should revise its interpretation of Title III in order to bring in into line with its interpretation of Title II. To fail to do so would operate to frustrate both the letter and the spirit of the ADA. Until the DOJ brings the titles into line, the courts should decline to give controlling weight to the DOJ's interpretation of Title III. (shrink)
This paper deals with the connection between law and morality. Such a connection is relevant for political theory, since demonstrating that law necessarily implies a claim to justice would require fundamental rights to be considered the horizon of any legal system, instead of being considered as dependent on the axiological context of liberal democracies. The paper approaches the controversy starting from an overview of the work of the German philosopher Robert Alexy, in particular his attempt to establish an analytical link (...) between law and morality, and to this end considers law as a speech act with a claim to correctness. It then examines the critique put forward by Joseph Raz, that points out the lack of objectivity of this claim to correctness. In order to establish a moral foundation for law, the paper argues that it is necessary to take account of Karl-Otto Apel's attempt to establish the transcendental foundation of language, as well as of Habermas' critique of that attempt. In conclusion, it is argued that the debate about a possible link between law and morality sheds new light on contemporary debates on liberal justification in political theory. (shrink)
Despite the declarations of international documents on minority language rights, provision is patchy for supporting minority languages in the UK, where since the 1980s governments have deliberately or unwittingly greatly raised the profile and comparative standing of English. The partial exception to this trend has been the treatment of indigenous/regional minority languages, stimulated by policies of devolution intended to revive or create a sense of national identity, and to redress perceived historic linguistic injustices. In a multicultural state or region (...) these apparently reasonable goals appear to conflict with current views of citizenship that argue for inclusiveness and equal treatment for all under the law. In particular, the question arises why indigenous minority languages should receive official support and funding that is denied to speakers of minority ethnic languages. In this article, I examine various justifications offered for this, including higher population levels, the geographical concentration of indigenous speakers, the long historical ties between regional language and culture, and the notion of promotional rights. I attempt to show each argument lacks force and ignores the fact of natural language change. I argue for an approach to indigenous languages that weights support and funding according to a range of factors including the number of minority speakers, their perceived need and the benefits that would flow from funding. Support from the local community and private sources could also be encouraged. (shrink)
By a fragment of a natural language we mean a subset of thatlanguage equipped with semantics which translate its sentences intosome formal system such as first-order logic. The familiar conceptsof satisfiability and entailment can be defined for anysuch fragment in a natural way. The question therefore arises, for anygiven fragment of a natural language, as to the computational complexityof determining satisfiability and entailment within that fragment. Wepresent a series of fragments of English for which the satisfiabilityproblem is polynomial, (...) NP-complete, EXPTIME-complete,NEXPTIME-complete and undecidable. Thus, this paper represents a casestudy in how to approach the problem of determining the logicalcomplexity of various natural language constructions. In addition, wedraw some general conclusions about the relationship between naturallanguage and formal logic. (shrink)
