Law as a leap of faith -- Legal positivism : 5 1/2 myths -- Some types of law -- Can there be a written constitution? -- How law claims, what law claims -- Nearly natural law -- The legality of law -- The supposed formality of the rule of law -- Hart on legality, justice, and morality -- The virtue of justice and the character of law -- Law in general.

How do laws resemble rules of games, moral rules, personal rules, rules found in religious teachings, school rules, and so on? Are laws rules at all? Are they all made by human beings? And if so how should we go about interpreting them? How are they organized into systems, and what does it mean for these systems to have 'constitutions'? Should everyone want to live under a system of law? Is there a special kind of 'legal justice'? Does it consist (...) simply in applying the law of the system? And how does it relate to the ideal of 'the rule of law'?These and other classic questions in the philosophy of law form the subject-matter of Law as a Leap of Faith. In this book John Gardner collects, revisits, and supplements fifteen years of celebrated writings on general questions about law and legal systems - writings in which he attempts, without loss of philosophical finesse or insight, to cut through some of the technicalities with which the subject has become encrusted in the late twentieth century. Taking his agenda broadly from H.L.A. Hart's The Concept of Law, Gardner shows how the key ideas in that work live on, and how they have been and can still be improved in modest ways to meet important criticisms - in some cases by concession, in some cases by circumvention, and in some cases by restatement. In the process Gardner engages with key ideas of other modern giants of the subject including Kelsen, Holmes, Raz, and Dworkin. Most importantly he presents the main elements of his own unique and refreshingly direct way of thinking about law, brought together in one place for the first time. (shrink)

Trust is one of the big buzzwords in debates about the shaping of society, democracy, and emerging technologies. For example, one prominent idea put forward by the High‐Level Expert Group on Artificial Intelligence appointed by the European Commission is that artificial intelligence should be trustworthy. In this essay, we explore the notion of trust and argue that both proponents and critics of trustworthy AI have flawed pictures of the nature of trust. We develop an approach to understanding trust in AI (...) that does not conceive of trust merely as an accelerator for societal acceptance of AI technologies. Instead, we argue, trust is granted through leaps of faith. For this reason, trust remains precarious, fragile, and resistant to promotion through formulaic approaches. We also highlight the significance of distrust in societal deliberation, as it is relevant to trust in various and intricate ways. Among the fruitful aspects of distrust is that it enables individuals to forgo technology if desired, to constrain its power, and to exercise meaningful human control. (shrink)

Following an introductory examination of possible reasons why past researchers have overlooked Kierkegaard’s debt to Kant, two specific areas of influence are documented and analyzed: the ideality of ethics, and the notion of faith as a leap. Closing remarks suggest that there are other areas as yet undocumented.

Following an introductory examination of possible reasons why past researchers have overlooked Kierkegaard’s debt to Kant, two specific areas of influence are documented and analyzed: the ideality of ethics, and the notion of faith as a leap. Closing remarks suggest that there are other areas as yet undocumented.

This is my reply to five extended critical assessments of my book Law as a Leap of Faith, appearing together in a symposium issue of Law and Philosophy. The critics are Kevin Toh, Luís Duarte d’Almeida and James Edwards, Fábio Perin Shecaira, Cristina Redondo, and Matthew Smith. The topics include H.L.A. Hart’s philosophical legacy, the moral claims of law, the nature of legal reasoning, the doctrine of legal positivism, and the possibility of alienation from law.

There is consistent evidence that everything coming out from the religious/spiritual phenomenon bends us most harshly. And that occurs regardless of the form religiousness or spirituality takes in practice or theory, despite the broad range of embracing religious concepts and creeds from atheism to fanatism, or moreover disregarding the impossibility of labeling as good or wrong these creeds from another perspective than the one that produced it. Many people adhere to religion for the sake of their souls, but it turns (...) out that regular participation in faith-based activities is good for the body and mind, too. Whether we are talking from a social perspective, or a psychological, mental, or bodily one, religious creeds and/or faith-based activities change us in a way or another, nearly for good and incessantly. Is that a good or a wrong thing? – the problem is that we cannot even assess this except from the same perspective that originates it, which makes even more difficult to analyze the religious phenomenon, especially for its better eventual management. Could this be a motif for lesser religious engagement in the civil societies characterized by a decreasing religious attachment? (shrink)

This article explores the young Georg Lukács through the prism of his early intellectual identifications and obsessions with Kierkegaard, his model, Mann, his poet, Dostoyevsky, his pro...

This article contains the author's responses to five critics of his book Law as a Leap of Faith whose criticisms appear in this journal. The critics are Kimberley Brownlee, Antony Hatzistavrou, Kristen Rundle, Sari Kisilevsky and Nicola Lacey. The criticisms and responses pick up the following fifteen themes from the book: law, morality, society, explanation, continuity, rationality, ends, instruments, values, justice, allocation, games, modalities, generalities, jurisprudence.

In his collection of essays, Law as a Leap of Faith, John Gardner lucidly develops a powerful account of legal positivism, primarily via a careful interrogation of H. L. A. Hart’s work, with a particular focus on Hart’s most important text, The Concept of Law. In this essay, I raise a question regarding the significance of legal subjects’ understanding of themselves as legal subjects. I claim that as Gardner fills out the picture of what it takes to have (...) an ideal legal system, we will find that there is no requirement that subjects have any understanding of themselves as legal subjects, much less an understanding either of what the law requires of them or of the legal status with respect to officials that the law gives them. In particular, I argue that Gardner’s account of the law is too focused on the perspective of officials, and leaves out the perspective of legal subjects. This manifests what I call a unidirectional legal optic: the view of the law is the view from a single perspective, namely the perspective of the official. This is not an accurate picture of the law and so should not be presented as the paradigmatic account of law. (shrink)

One of the things for which Kierkegaard is both best known to English and American philosophers and most criticized by them, is his contention that “truth is subjectivity.” His discussion of “truth” and “subjectivity” occupies a considerable part of his most important philosophical work, Concluding Unscientific Postscript; and his contention that “truth is subjectivity” is the pivotal claim around which virtually the entire work revolves. Yet few of Kierkegaard's claims have been more frequently misunderstood; and a misunderstanding of this claim (...) has led many philosophers wrongly to dismiss him as unworthy of serious consideration. (shrink)

The moral dilemma Mando faces as he struggles to return the Child to the Jedi Order is illuminated by Soren Kierkegaard, one of the central figures of existentialism, a philosophy centered on the belief that individuals define themselves through their actions. Kierkegaard's Christian existentialism was critical of the social dynamics and religious models that were supposed to represent authentic religiosity but were actually hypocritical and naive. Religious leaders spoke of virtue but rarely modeled it. Kierkegaard, by contrast, upheld the central (...) tenets of the faith but was humble about what he could claim as objectively true or real. The persona of Din Djarin evolves in complexity: from enigma, to soldier, to father. He believes in the Mandalorian creed and its rules, but he experiences a personal attachment to Grogu. The final stage of life according to Kierkegaard is the religious, in which one makes a leap of faith. (shrink)

This chapter opens with a discussion on the Luke Skywalker's role in Return of the Jedi. At the end of the film Skywalker must make a decision whether to ignore the utilitarian principle that he must kill his father to save the galaxy, or violate the ethical principle against dishonoring and murdering his own father and risk being turned to the dark side by the Emperor. Both are unacceptable to Luke. So he will have to turn a Sith to the (...) light side of the Force. Such a maneuver requires a leap of faith, and for that this chapter turns to a man who knew just how hard it was: the Danish philosopher Soren Kierkegaard. Luke realizes that killing Darth Vader will not bring balance to the Force. Luke defeats Vader in the duel, but saves him in not ending it the way everyone has been telling him to. (shrink)

The goal of Fear and Trembling is to illuminate the difficulty of faith. At an important juncture, he claims that both types of knight are dancers, but only the knight of faith can dance perfectly, doing what perhaps no dancer can do: he does not “hesitate” in the moment between landing from his leap and assuming the position from which to reengage with finitude. This analogy has been given small attention in the literature. Given Kierkegaard’s surprisingly precise (...) grasp of classical ballet’s vocabulary and aesthetic, I examine how these provide him additional power to clarify the difference between faith and resignation. (shrink)

Søren Kierkegaard and John Henry Newman have starkly opposed formulations of the relation between faith and reason. In this essay I focus on a possible convergence in their respective understandings of the transition to religious belief or faith, as embodied in metaphors they use for a qualitative transition. I explore the ways in which attention to the legitimate dimension of discontinuity highlighted by the Climacan metaphor of the 'leap' can illuminate Newman 's use of the metaphor of (...) a 'polygon inscribed in a circle', as well as the ways in which Newman 's metaphor can illuminate the dimension of continuity operative in the Climacan appreciation of qualitative transition. (shrink)

Søren Kierkegaard and John Henry Newman have starkly opposed formulations of the relation between faith and reason. In this essay I focus on a possible convergence in their respective understandings of the transition to religious belief or faith, as embodied in metaphors they use for a qualitative transition. I explore the ways in which attention to the legitimate dimension of discontinuity highlighted by the Climacan metaphor of the ‘leap’ can illuminate Newman's use of the metaphor of a (...) ‘polygon inscribed in a circle’, as well as the ways in which Newman's metaphor can illuminate the dimension of continuity operative in the Climacan appreciation of qualitative transition. (shrink)

Does our available evidence show that some particular religion is correct? It seems unlikely, given the great diversity of religious - and non-religious - views of the world. But if no religious beliefs can be shown true on the evidence, can it be right to make a religious commitment? Should people make 'leaps of faith'? Or would we all be better off avoiding commitments that outrun our evidence? And, if leaps of faith can be acceptable, how do we (...) tell the difference between goodand bad ones - between sound religion and dogmatic ideology or fundamentalist fanaticism? Believing by Faith offers answers to these questions, inspired by a famous attempt to justify faith made by William James in 1896. In doing so, it engages critically with much recent discussion in the philosophyof religion, and, especially, the epistemology of religious belief. (shrink)

Jonathan Wolff and Timothy Hinton have criticized a version of liberal egalitarianism, often associated with Ronald Dworkin, for promoting an account of social justice that fails to treat everyone with respect. This paper analyses Wolff’s and Hinton’s critiques, particularly with regard to how notions of self-respect and respect-standing are deployed. The paper argues that the analyses of both Wolff and Hinton display affinities with a dualist approach to social justice. A dualist approach theorizes respect as an aspect of both distributive, (...) socioeconomic injustice and cultural injustice, rather than of the former only, which is typical of liberal egalitarianism. Nancy Fraser is widely associated with such a dualist framework, so her version is used to assess Wolff’s and Hinton’s work. The paper argues that both make use of ideals and commitments from the dualist approach to justice in their respect objection. However, despite their evident sympathy for the notion of cultural injustice, both continue to theorize respect primarily as an aspect of distributive justice. Thus, for cultural justice theorists, Wolff’s and Hinton’s critiques of Dworkinian justice may leave something to be desired. (shrink)

ABSTRACTThis article provides a Global South perspective on marginalised migrant youth and higher educational aspirations, with a specific focus on South Africa. We use data from a case study in Johannesburg to illustrate how marginalised migrant youth experience particular forms of disadvantage in their endeavours to realise their educational aspirations. Yet, educational opportunities and the achievement of educational aspirations may enhance dimensions important for individual wellbeing. Through education, marginalised migrant youth become better positioned to pursue what they have reason to (...) value, including escaping poverty in both their home and host countries. Using the human development and capability lens, the paper also presents what the disadvantages experienced by marginalised migrant youth may mean for human development. We argue that constrained educational aspirations can result in corrosive disadvantage and ultimately systemic poverty. We conclude the paper by highlighting how the capability approach could be used to inform social and educational policies in contexts of marginalisation. (shrink)

Whereas writing a dissertation can be a fear-inducing experience for a doctoral student, there exists the possibility of not only learning but also self-transformation that can take place through the process. In this article, I reflect on how my choice of a research approach provided me with a transformative research experience. I will describe portraiture as a critical feminist research method that was culturally relevant in undertaking my study of African women leaders. Through this process of conducting research utilizing portraiture (...) as method, I became a supplicant learner. (shrink)

Clinical Ethics, Ahead of Print. The migration of health-care professionals has often produced morally charged discussions among ethicists, politicians, and policy makers in the migrant-sending and migrant-receiving countries because of its devastating effects on the health of those left behind in the countries of origin.This movement of skilled professionals – their decision to leaving their countries of origin in search of better work environments – has created a phenomenon that has been described as brain drain. Although the migration of health (...) workers continue to bring prosperity to millions of people around the world, they have also evoked hopelessness in many more people. Thus, questions of global justice manifest themselves when it comes to the matters of brain drain and the just distribution of health and healthcare professionals. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy and Literature 25.2 (2001) 314-334 [Access article in PDF] The Epistemology of Cognitive Literary Studies F. Elizabeth Hart I Literary scholars have begun incorporating the insights of cognitive science into literary studies, bringing to bear on questions of literary experience the results of explorations within a wide range of fields that define today's cognitive science. The investigation of the human mind and its reasoning processes encompasses a rich (...) variety of empirical and speculative disciplines, including cognitive psychology, neuroscience, linguistics, evolutionary psychology, developmental psychology, computer science, philosophy, and anthropology. These disciplines are all related to one another by the questions they ask about the brain and mind and the ground they cover in staking out their research agendas; but each also contributes uniquely in terms of individual scope and focus. Literary critics, eavesdropping on this maturing coalition, are now producing critical works that apply cognitive research to a similarly impressive range of literary concerns, with results so far that seem to span the gap between traditional and more contemporary literary critical approaches.All such criticism is dependent on scientific studies of the brain and mind and so accepts axiomatically some degree of epistemological efficacy in scientific empiricism. But this acceptance has not been naive or uncritical and has, in fact, been at times carefully qualified by critics' sensitivity to debate--to the lack of consensus among cognitive scientists, and to the fact that cognitive science is itself in its infancy stage, with its own practitioners often openly tentative about their results and descriptive capabilities. As it happens, such debate, in recent years, has even proven beneficial for literary scholarship since an important [End Page 314] paradigm shift has taken place that now makes some aspects of cognitive science more compatible than ever with the interests of literary studies. This is because, whereas an earlier phase of cognitive science focused its energies on Artificial Intelligence and on theories of language and psychology that supported AI, grounding its theories implicitly in a metaphor of the mind as a computer, today's cognitive scientists tend to concentrate instead on the more organic metaphor of the "embodiment" of mind, that is, of the mind's substantive indebtedness to its bodily, social, and cultural contexts, and on the figurative phenomena of metaphor, metonymy, image schemata, "fields," "frames," other "integrative mental spaces" (as they are called), and the gradient structures and prototypical bases of semantic categories, all of which contribute to recasting human reason into a set of highly imaginative--not logical but figural--processes. 1 For literary theory and criticism, this shift in cognitive science toward "the body in the mind" 2 --tantamount to a wholesale rejection of philosophical rationalism--has given rise to a new kind of interdisciplinary practice, to the potential for a sincere engagement between diverse sciences and even between literature and science that stretches all the bounds of what literary scholars generally mean when they speak of being interdisciplinary (e.g., exchanges with history, art history, anthropology, film studies, sociology).In the discussion that follows, I would like to explore this new interdisciplinarity in literary studies by examining its epistemological implications. I begin with a description of the kinds of criticism now being produced under the rubric of cognitive literary criticism or--to reflect the field's scope more accurately--cognitive and cognitive-evolutionary criticism. This description is not intended as a comprehensive or evaluative survey, since in-depth review articles of extant works are available elsewhere. 3 Rather, I hope to familiarize my readers with the basic orientations of this theory and criticism so that they can grasp the epistemological relations that will become the essay's focus. To lay a further groundwork for this focus, I will review various uses of the term "cognitive" (or "cognitivism") in the scholarship and offer an analysis of its meanings, first in cognitive science and then in literary theory. Building, then, on what "cognitive" might signify for literary studies, I show how a literary approach based on today's cognitive science is uniquely situated among other approaches because of its underlying theory of human... (shrink)

Women constitute the majority of both the leadership and the membership of local toxic waste activist organizations; yet, gender and the fight against toxic hazards are rarely analyzed together in studies on gender or on environmental issues. This absence of rigorous analysis of gender issues in toxic waste activism is particularly noticeable since many scholars already make note that women predominate in this movement. This article is an attempt to understand how women activists transcend private pain, fear, and disempowerment and (...) become powerful forces for change by organizing against toxic waste in their communities. This article systematically looks at these connections by examining data from survey research and case studies. The authors are particularly interested in the transformation of self of these women, with an emphasis on “ways of knowing.” They also examine the potential of existing social movement theories to explain women's activism against toxic waste. (shrink)

The loss of the federally protected constitutional right to an abortion is a threat to the already tenuous autonomy of pregnant people, and may augur future challenges to their right to refuse unwanted obstetric interventions. Even before Roe’s demise, pregnancy led to constraints on autonomy evidenced by clinician-led legal incursions against patients who refused obstetric interventions. In Dobbs v. Jackson Women’s Health Organization, the Supreme Court found that the right to liberty espoused in the Constitution does not extend to a (...) pregnant person’s right to an abortion. With Roe’s demise, the right to request specific types of care has been vitiated. The same argument underpinning that holding may now become ballast for attacks on the traditionally more robust right, the right to refuse. Here we discuss how the elevation of fetal and embryonic rights may lead to a cascade of medical intrusions and deprivations of liberty against pregnant persons, and offer an argument opposing these improprieties. (shrink)

Autoethnography is a qualitative research method that utilizes data about self and context to gain an understanding of the connectivity between self and others. This introductory article exposes the reader to our own praxis of collaborative autoethnography which we used to interrogate how we navigate the US academy as immigrant women faculty. Before introducing the articles in this special issue, we explore the autoethnography continuum, provide sample areas covered by autoethnographers, and explicate the practice of collaborative autoethnography. We conclude this (...) piece with implications for future use of autoethnography as research method. (shrink)

This paper discusses the role that the personal history plays in a patient’s perception of his or her own illness in the light of the patient’s own personal history. It demonstrates the regrettable modern tendency to regards the patient as the “bearer of a disease” rather than as a human being with personal values and experiences into which their current illness needs to be integrated. I illustrate my point by an exchange between a student and an “attending” and the “attending” (...) and the patient. It represents only one out of unfortunately many such instances in which the pressures of “managed care” and “efficiency” have made truly knowing the patient as an individual with life experiences and personal values much more difficult. (shrink)

George Faithful tells the story of a group of young Lutheran women who formed the Ecumenical Sisterhood of Mary in 1947 in order to advocate collective national guilt for the sins of the German people (Volk) against God and against the Jews.

Cohabiting has been associated with a number of problems including sexually transmitted diseases and HIV and AIDS, abortions, sexual abuse and violence, low academic performance, increased cost of medical care and unwanted pregnancies. However, there is little documented information on the extent and the factors influencing cohabitation among the youth and especially among tertiary education students. This study therefore sought to fill this gap by investigating factors that lead to the prevalence and practice of cohabitation by tertiary education students. The (...) research adopted the interpretivist philosophy. The qualitative research methodology was employed in order to understand in greater detail the behaviors, attitudes, opinions, and beliefs of the respondents on cohabitation among tertiary education students. The study used the survey research design. Primary research was conducted using questionnaire surveys that were administered to tertiary education students who participated at the Tertiary Education Sports Association of Zimbabwe in July 2016. There were 100 questionnaires distributed and 78 questionnaires were returned making 78% response rate. The respondents were randomly sampled to participate in the study. The study reflects that cohabitation among the Tertiary education students is quite common. The study noted that it is mostly caused by lack of accommodation, problems with roommates, lack of privacy and the need to be close and intimate with one's lover. In results cohabitation exposes students to premarital sex and other consequences such as unwanted pregnancies, abortion, complications and sexually transmitted infections. The study recommends that tertiary education students should be enlightened during orientations about the dangers of cohabitation. Parents should be encouraged to visit their children and find where and whom they live with while in school. (shrink)

Decisions concerning use of gene therapy will probably not be made within the privacy of what was once a dyadic doctor–patient relationship. More likely, some overarching guidelines will emerge directing or limiting the practice. Debate and position-taking over the myriad scientific, social, ethical, legal, and political implications of research into and manipulation of the human genome has intensified since the U.S. government officially launched the Human Genome Project in 1988 by appropriating funds to the Department of Energy and the National (...) Institutes of Health for genome research. The discourse this costly research endeavor has generated in the scientific and bioethics literature and even in the popular press outlines a host of issues likely to evoke attempts at line drawing and policymaking. Many of these issues lend themselves easily to the shorthand of dualistic opposition: somatic cell therapy versus germ line therapy or engineering ; correction of defects and disease only versus enhancement of conditions not considered defects or diseases; intervening on the basis of phenotype only versus intervening on the basis of genotype also. (shrink)

This paper points out that to persons unfamiliar with the context and suffering of dying patients, their loved ones, and last, but by no means least, the health care team can only discuss the very concrete question of euthanasia in an abstract way unaware of the fact that this question must, in the final analysis, be differently addressed in different specific patients and under specific circumstances. This paper poses questions which must be addressed and will rarely find a good answer (...) but at least the best among a series of unpalatable options. It again points out the important and legitimate place that emotions play in decision-making. (shrink)