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  1. Maksymilian T. Madelr, A Different Kind of Normativity: Towards Theory as Self-Transformation.
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  2. Maksymilian T. Madelr, A Plea for Familiarity and Estrangement: Beyond Norms and Normativity in the Study of Social Life.
    This paper argues that we need to go beyond norms and normativity in the study of social life. The main purpose of the paper is to offer concepts and resources for a study of familiarity and estrangement, which, it is argued, is better placed (than a study of norms and normativity) to remind us, as we constantly need to be reminded, of one the most difficult things about living together, namely, how we understand the world of another person (...)
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  3. Maksymilian T. Madelr, Between Allegiance and Responsiveness: Law, Justice and Public Philosophy.
    This paper offers an account of two political traditions. The first tradition is that of allegiance to abstract principles and procedures; the second is that of responsiveness to the needs of persons and communities. The first two parts of the paper describe some of the basic features of each tradition, while also paying attention to the problems and difficulties within them. The third part of the paper shows how we can see the same tension, i.e., between allegiance and responsiveness, at (...)
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  4. Maksymilian T. Madelr, Breaking the Spell: The Education of Attention and Encounter in Law Schools and Law Firms.
    This paper offers some resources for the development of moral sensitivity in law schools and law firms. It does so, first, on the basis of a picture of legal life, which draws on the embodied-connectionist strand in cognitive science. Legal life requires role-differentiated behaviour, and immersion in these roles, and associated tasks, has the consequence that persons are oriented to notice only certain things rather than others (where those things will sometimes be morally relevant things to notice). Further, the lawyer-client (...)
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  5. Maksymilian T. Madelr, Clio Unbound: Theories of Law Between Discourse and Tradition.
    This paper argues against two extreme attitudes to the history of a discipline: on the one hand, ignorance and dismissiveness; and on the other hand, canonisation. The ever-present challenge is to find a balance between these two extremes. The paper attempts to walk the middle way by offering an alternative history of theories of law. It does so by revealing the basic characteristics of theories of law that tend towards either the explanatory paradigm of discourse or of tradition. (...)-oriented theories tend to give explanatory priority to autonomous systems or orders of already articulated rules or norms. They also tend to conceptualise behaviour from the first person ex ante perspective, and tend to require explicit deliberation, even at the level of social conventions. The political value behind these theories tends to be the imposition of social order from above and the constraint of the power of officials by the rule of law. Tradition-oriented theories tend to give explanatory priority to the long-term activities of persons interacting in certain distinct contexts (such as various kinds of communities and institutions). They tend to conceptualise behaviour as consisting of embodied, though not completely unreflective, learning, resulting in the formation of certain skills and propensities. They also tend to focus on the transmission of social knowledge via the involvement of persons in certain contexts of interaction. The political value behind these theories is that of responsiveness and attention to the needs of the disadvantaged. The paper does not set out to evaluate the strengths or weaknesses of either explanatory paradigm. Rather, the aim is to offer an alternative history of the discipline of jurisprudence, with the hope that it encourages the construction of other such histories, thereby opening up possibilities for finding new insights in the works of the past. If, as it is argued, the formation of a jurisprudential orientation is at least partly dependent on how a legal theorist understands the history of jurisprudence, then offering alternative ways of seeing that history also carries with it the potential for renewing the discipline. (shrink)
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  6. Maksymilian T. Madelr, Moral Experience and Legal Education.
    This paper argues that the contemporary practice of moral philosophy (particularly in the examples it relies on) and the contemporary practice of legal education both tend to ignore, dismiss or exclude that which is here called 'moral experience.' Moral experience is here defined (non-exhaustively) to be: 1) that which helps us face up to, instead of hide away from, our mortality and fallibility; 2) that which helps us experience radical uncertainty about who we are, where we have been, and where (...)
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  7. Maksymilian T. Madelr, Making Room for the Silence of Social Normativity.
    Some accounts of social life give explanatory emphasis to normative requirements themselves. This paper resists such a tendency. It is argued that when normative requirements themselves are given explanatory priority the concept of social normativity tends to be situated between these requirements on the one hand, and the practice of evaluating conduct in accordance with those requirements. Normativity so situated is then required to bridge the justificatory gap between the two. It is further illustrated how such an explanatory (...)
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  8. Maksymilian T. Madelr, Normativity and Thoughtfulness: A Footnote to Socrates.
    This paper argues that we ought to conceive of normativity as a matter of the exercise of fallible abilities that make a fragile pact with the future. To conceive normativity in this fashion we also need to change our image and practice of thinking, i.e., we need to endorse thoughtfulness, which consists in the ability and willingness to widen the scope (or, sometimes, change) that which we find insightful. This approach to normativity, and this image and practice of thinking, is (...)
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  9. Maksymilian T. Madelr, Philosophical Revolutions.
    This paper argues that changes in philosophical practice will be most revolutionary not in the exercise of creativity and innovation in the content and substance of philosophical arguments - although these are not only important but also, to some extent, necessary for the survival of philosophy - but rather, in changes made: 1) to the philosophical environment and its tools; 2) to the kinds of bodies developed and expressed in those environments and in the course of using those tools; or (...)
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  10. Maksymilian T. Madelr, Social Normativity for Legal Philosophers.
    Understanding the nature of social normativity is important for contemporary analytical legal philosophy. For one, such an account may help articulate the form of the social conventions that are said to be at the foundations of the rule of recognition. This paper argues that accounts of the nature of social normativity ought not to be based on the idea that social life is governed or regulated by norms. Rather, accounts of social normativity ought to be centred on the notion of (...)
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  11. Maksymilian T. Madelr, Social Normativity: What's at Stake?
    This paper argues that what is at stake in the debate over the nature of social normativity is the understanding of the significance of the tension between repetition (and reinforcement of it) and change (and openness to it). The first and second parts of the paper offer illustrations of the pervasiveness and tenacity of reinforcement, as well as the rarity, but also urgent need for, openness. The paper also argues that the most dominant reason as to why the above-mentioned (...)
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  12. Maksymilian T. Madelr, Straw-People, Straw-Lives: Guidance and Compliance in Theories of Normativity.
    This paper argues against a conception of normativity that relies too heavily on the notions of guidance and compliance. Both guidance and compliance are argued to be myths, used, by observers, to legitimise their evaluation of persons, conceived of as participants, in game models (or what are alternatively called, in this paper, means-end events or action paradigms, i.e., typical action sequences in familiar scenarios). The aim of this critique is three-fold: first, to make us more aware of the role (...)
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  13. Maksymilian T. Madelr, The Experience of Normativity.
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  14. Maksymilian T. Madelr, The Moral and Political Life of Thoughtfulness.
    This paper offers a discussion, with examples and illustrations from both academia and the arts, of thoughtfulness, i.e., roughly, the ability and willingness to widen the scope of (or, sometimes, change) that which one finds insightful and that which one finds valuable. The paper argues that the exercise of thoughtfulness can help us avoid underestimating the demands of moral and political life. It does so because, unlike other approaches to the good (individual or communal), it does not neglect to acknowledge (...)
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  15. Maksymilian T. Madelr, The Problem of Normativity in Contemporary Legal Theory.
    This paper examines the problem of normativity in contemporary legal theory, paying particular attention to the relationship between the conception of the problem and related explanations of behaviour. The first part of the paper shows how the problem of normativity, conceived of as a matter of determining how legal norms function as reasons for action, is linked to an explanation of behaviour that is posited or assumed to be capable of being guided by reasons. More importantly for the purposes of (...)
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  16. Maksymilian T. Madelr, Avoiding Law's Existence.
    This paper argues that legal theorists should give up the pursuit of determining the mode of law's existence - whether in the form of rules, as in HLA Hart, or in the form of norms, as in Hans Kelsen. Attempting to determine the mode of law's existence results in two mistakes: first, it presupposes the possibility of content-determination (of rules or norms), resulting in a more (Kelsen) or less (Hart) stringent reference theory of meaning; second, it presupposes unproblematic access to (...)
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  17. Maksymilian T. Madelr, Beyond Text in Legal Education: Art, Ethics and the Carnegie Report.
    This paper argues that the development of ethical education in law schools ought not to be restricted to the use of textual resources. In the first part of the paper, the continuing dominance of text as the object of analysis in legal theory, legal scholarship and legal practice is illustrated. The dangerous implications of this continuing dominance on the capacity to see and recognise the great variety and depth of suffering and vulnerability is also discussed. It is argued that recourse (...)
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  18. Maksymilian T. Madelr, Descriptions of Behavior and Behavioral Concepts in Private Law.
    Every description contains within it a qualifier that allows us to avoid the problem of descriptive regress, and thus allows us to use the description for various purposes. Descriptive regress occurs because no one description can be understood without referring to further descriptions, which themselves require unpacking by reference to further descriptions ad infinitum. There are no fundamental descriptions no descriptions that attain and keep some privileged ontological status. The qualifier works by invoking the normal circumstances in which the description (...)
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  19. Maksymilian T. Madelr, Do Rules Exist?
    This paper argues that in focusing on the problem of whether, and if so how, rules of law exist, legal theory endangers its capacity to both account for and evaluate how law accompanies a community in its adaptation to emerging social problems. Two classical works of legal theory are analysed, Hans Kelsen's Pure Theory of Law and HLA Hart's The Concept of Law, with a view to revealing the weaknesses of a legal theoretical approach aimed at describing the conditions under (...)
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  20. Maksymilian T. Madelr, Expertise and Error-Making in Chess.
    The aim of this paper is to illustrate, in some detail, the phenomenon of chess expertise and the making of errors by chess experts. In doing so, this paper also aims to reveal the close relationship between expertise and error making in chess. Finally, the paper aims to show how understanding that integral relationship can assist in the creation of pedagogical methods that can minimize error making, while also maximizing expertise. The analysis may provide some assistance in the development of (...)
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  21. Maksymilian T. Madelr, From Existence to Ethics in Legal Theory.
    This paper argues against the continuing domination, within legal theory, of the ambition to determine the mode of law's existence and our access to it. It illustrates the problems with such an approach via a close reading of George Pavlakos' recent work, Our Knowledge of the Law (2007). It seeks to replace the dominance of that ambition with the ethics of legal theory, i.e., the avoidance of both theoretical insularity and theoretical imperialism. Theoretical insularity ensues when we come to think (...)
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  22. Maksymilian T. Madelr, Jurisprudential Inquiries Between Tradition and Discourse.
    This paper argues that jurisprudential inquiries can be profitably analysed as oriented towards either the explanatory paradigm of discourse or the explanatory paradigm of tradition. The first part of the paper offers a map of the discipline of jurisprudence in accordance with the above two different explanatory orientations. It does so at two levels: 1) ontological (pictures of law); and 2) epistemological (pictures of legal work). In the second part the paper, the tension and interaction between the explanatory paradigms (...)
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  23. Maksymilian T. Madelr, Living Legal Scholarship.
    This paper offers a personal reflection on the value of legal scholarship. It is set in the context of the contemporary literature on the state of contemporary legal scholarship. The paper argues that the state of contemporary legal scholarship is too often evaluated on the exclusive basis of the style and content of legal scholarly works. The challenge that this paper seeks to meet is to provide a broader and richer platform upon which legal scholarship can and should be evaluated. (...)
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  24. Maksymilian T. Madelr, Law, Power and Behavior.
    This paper argues that the contemporary treatment within moral, political and legal philosophy of the issue of the effective and proper constraint (and, ultimately, also, direction) of power suffers from an absence of engagement with the following question: what picture of behavior - of those in power - should we adopt in order to consider how it might be constrained and directed? It is argued that the absence of engagement with this question can be explained by the dominance of the (...)
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  25. Maksymilian T. Madelr, Modes of Explanation of Behavior in Contemporary Legal Theory.
    This paper examines the status and role of modes of explanation of behavior in contemporary legal theory. It does so by reference to the criticism made by Sundram Soosay of the dominance of the conscious and deliberative mode of explanation in the work of Joseph Raz, H.L.A. Hart and Ronald Dworkin. Soosay's criticism is discussed and evaluated by reference to a reading of these three theorists. I argue for a pluralist and pragmatic approach to modes of explanations of behavior, (...)
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  26. Maksymilian T. Madelr, Responsiveness.
    This paper introduces the notion of responsiveness and the role it might play in moral, political and legal philosophy. The paper has four parts. The first considers the meaning of the call for making room for responsiveness, and discusses three potential bearers of responsiveness: 1) individuals; 2) institutions; and 3) practices. The second part of the paper discusses three possible objects of responsiveness (i.e., three possible answers to the question, "responsiveness to what?"): 1) the experience of moral emotions; 2) the (...)
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  27. Maksymilian T. Madelr, System Values and Understanding Legal Language.
    This paper argues that the concerns and methodology of the recently completed Report of the International Law Commission (ILC) over the fragmentation of international law presuppose a particular way of understanding legal language which tends to separate the understanding of rules from their factual adaptability to certain recurring social problems faced within specific institutional contexts. The paper argues that separating rules from their factual adaptability focuses the analysis on surface coherence - coherence at the level of abstract terms and phrases. (...)
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  28. Maksymilian T. Madelr, The Ethics of Legal Theory: Towards Pluralist Pragmatism.
    This paper argues for the adoption of pluralist pragmatism about concepts of law. The first part of the paper introduces the argument by reference to the debate over conceptual prescriptivism in the contemporary literature on the methodology of legal theory. The second part of the paper offers a method for recognising pluralism in traditions of jurisprudential inquiry: it does so on the basis of the use of modes of objectification that can be said to underwrite the construction of concepts of (...)
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  29. Maksymilian T. Madelr, The Language of Law: Methods and Objects.
    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 (...)
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  30. Maksymilian T. Madelr, The Spatio-Temporality of Objectification in Legal Theory: Concepts of Legality Between Theory and Practice.
    This paper argues that concepts of legality in legal theory can be profitably understood as being underwritten by modes of spatio-temporal objectification. In the first part of the paper, a scheme of such modes is provided, and a map of jurisprudential inquiries is thereby offered. In the second part of the paper, two concepts of legality - underwritten by two different modes of spatio-temporal objectification - are analysed. The analysis shows how both concepts of legality lead to different sets of (...)
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  31. Maksymilian T. Madelr, Why Motivation Cannot Go It Alone: Moral Education, Legal Theory and Social Justice.
    This paper argues that the primary task of legal theory should be to pursue the responsiveness of a legal system to the moral life of a community. However, the pursuit of such an aim cannot appeal merely or even dominantly to the short-term motivational structures of individuals - as is dominantly the case in contemporary legal theory. What is required, instead, is appeal to long-term learning structures. This paper introduces the notion of long-term learning structures by reference to the work (...)
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  32. Maksymilian T. Madelr & Oche Onazi, The Moral Climates of International Economic Institutions and Access to Public Goods and Services in Nigeria.
    The first part of this paper provides a general theory of moral climates, which incorporates the following three elements: first, the values and limitations of that picture of moral behaviour focused on rules, rule-following and rationality; second, that picture of moral behaviour focused on institutionally-embedded activity; and third, that picture of moral behaviour that urges us to come face to face with our own limitations, i.e., our own ways of orienting ourselves to objects of value, such that we do not (...)
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