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)
In a 2008 paper, Walmsley argued that the explanations employed in the dynamical approach to cognitive science, as exemplified by the Haken, Kelso and Bunz model of rhythmic finger movement, and the model of infant preservative reaching developed by Esther Thelen and her colleagues, conform to Carl Hempel and Paul Oppenheim’s deductive-nomological model of explanation (also known as the covering law model). Although we think Walmsley’s approach is methodologically sound in that it starts with an analysis of scientific practice (...) rather than a general philosophical framework, we nevertheless feel that there are two problems with his paper. First, he focuses only on the deductivenomological model and so neglects the important fact that explanations are causal. Second, the explanations offered by the dynamical approach do not take the deductive-nomological format, because they do not deduce the explananda from exceptionless laws. Because of these two points, Walmsley makes the dynamical explanations in cognitive science appear problematic, while in fact they are not. (shrink)
This paper shows how Peirce's semeiotic could be turned into a powerful science. The New Science of Semiotics provides not only a new paradigm and an empirical justification for all these applications, but also a rational and systematic procedure for carrying them out as well. Thus the New Science of Semiotics transforms the philosophy of law into the science of legal scholarship, the discipline that I call jurisology.
What is justice? -- The idea of justice in the Holy Scriptures -- Platonic justice -- Aristotle's doctrine of justice -- The natural-law doctrine before the tribunal of science -- A "dynamic" theory of natural law -- Absolutism and relativism in philosophy and politics -- Value judgments in the science of law -- The law as a specific social technique -- Why should the law be obeyed? -- The pure theory of the law and analytical jurisprudence -- Law, (...) state, and justice in the pure theory of law -- Causality and retribution -- Causality and imputation -- Science and politics. (shrink)
In this book, Carl Cranor utilizes material from ethics, philosophy of law, epidemiology, tort law, regulatory law, and risk assessment to argue that the evidentiary standards for science used in the law to control toxics ought to be ...
This paper attempts to clarify some of the logical and conceptual issues in the philosophical dispute about law that has pitted the legal positivists against the adherents of natural law. The first part looks at the basic concepts that are relevant to that discussion and at the methodological implications of studying law either as an order of natural persons (natural law) or as a system of rules or an order of rule-defined artificial persons (legal order). Thus, we find that the (...) material and formal objects of natural law studies and legal science are different, and only touch one another because of the contingent fact that most of the positions in the legal orders studied by positivists are occupied by natural persons. Consequently, from both the logical and the methodological points of view, natural law studies and legal studies are not rivals. The two can exist side by side and have done so for centuries. One question that emerges from analysis in the first part is why positivists have embraced the study of legal orders while heaping nothing but scorn on the study of natural law. Their attitude suggests hatred and contempt rather than a mere difference of intellectual interests. Could it be that the positivists’ attitude has little to do with logic and methodology and much with ideological issues involving fundamental values? In the second part, we look for an answer to this question in a comparison of the two major and radically opposed religious worldviews that have made their mark on Western intellectual history, the Judaeo-Christian tradition and the Gnostic tradition. (shrink)
A natural language is an organic living thing; and meanings change as words take on new, and shed old, connotations. Recent (post-Fregean) philosophy of language has paid little attention to the growth of meaning; radical philosophers like Feyerabend and Rorty have suggested that meaning-change undermines the pretensions of science to be a rational enterprise. Thinkers in the classical pragmatist tradition, however -Peirce in philosophy of science and, more implicitly, Holmes in legal theory- both recognized the significance of growth (...) of meaning, and understood how it can contribute to the progress of science and to the adaptation of a legal system to changing circumstances. This paper develops these insights, and illustrates them by reference to (1) the growth of meaning of "DNA" from the identification of "nuclein" to the discovery of mtDNA almost a century later, and (2) the growth of meaning of "the establishment of religion" in the First Amendment to the U.S. Constitution from its ratification in 1791 to the present day. Arguing that the growth of meaning can indeed contribute to rationality, it also shows why narrowly formal models are inadequate both to science and to law. Un lenguaje natural es una cosa viviente orgánica, y los significados cambian a medida que las palabras adoptan nuevas connotaciones y abandonan viejas. La filosofía del lenguaje reciente (post-fregeana) ha prestado poca atención al desarrollo del significado; filósofos radicales, como Feyerabend y Rorty han sugerido que el cambio de significado socava las pretensiones de la ciencia de ser una empresa racional. Pensadores en la tradición pragmatista clásica, sin embargo -Peirce en la filosofía de la ciencia y, más implícitamente, Holmes en la teoría del Derecho- reconocieron la importancia del desarrollo del significado y comprendieron cómo éste puede contribuir al progreso de la ciencia y a la adaptabilidad de un sistema jurídico a las circunstancias cambiantes. Este trabajo desarrolla estas ideas, y las ilustra por medio de una referencia a (1) el desarrollo del significado de "ADN" desde la identificación de la "nucleína" hasta el descubrimiento del ADN mitocondrial casi un siglo más tarde, y (2) el desarrollo del significado de "el establecimiento de una religión" en la Primera Enmienda de la Constitución de los Estados Unidos desde su ratificación en 1791 hasta la actualidad. Argumentando que el desarrollo del significado puede contribuir mucho a la racionalidad, también muestra por qué los modelos estrechamente formales son inadecuados, tanto para la ciencia como para el Derecho. (shrink)
Giving attention both to the history of modern science and to current work in the natural sciences, the importance of requiring that natural laws be treated as universal with respect to space and time is discussed critically. It is concluded that the view that such a requirement be taken as a definitional criterion characterizing laws of nature--or science itself--is not justified, and that the deductive advantages of universality can be preserved with local laws using scope limitations (...) or sortal techniques. (shrink)
This paper explores some of the important parallels between recent reforms to legal rules for the admissibility of scientific and expert evidence, exemplified by the US Supreme Court's decision in Daubert v Merrell Dow Pharmaceuticals, Inc. in 1993, and similar calls for reforms to medical practice, that emerged around the same time as part of the Evidence-Based Medicine (EBM) movement. Similarities between the “movements” can be observed in that both emerged from a historical context where the quality of medicine and (...) legal approaches to science were being subjected to growing criticism, and in the ways that proponents of both movements have used appeals to “folk epistemologies” of science to help legitimate their reform aspirations. The term folk epistemology is used to describe the weaving together of formal and informal images of scientific method with normative and pragmatic concerns such as eradicating “junk science”, and promoting medical best practice. Perhaps unsurprisingly, given the unfocused breadth of these aspirations the implications of these “reforms” for medical and legal practice have not been straightforward, although they do represent an important new set of rhetorical resources to critique and or legitimate expertise in medical and legal domains. Discussion closes, by noting the growth of calls for these movements to reciprocate in areas where law and medicine intersect, such as medical negligence litigation. (shrink)
In this paper I argue that differences between the ‘new moral science’ of the seventeenth century and scholastic natural law theory originated primarily from the skeptical challenge the former had to face. Pufendorf’s project of a scientia practica universalis is the paramount expression of an anti-skeptical moral science, a ‘science’ that is both explanatory and normative, but also anti-dogmatic insofar as it tries to base its laws on those basic phenomena of human life which, supposedly, are immune (...) to skeptical doubt. The main scholastic legacy to the new moral science is the dichotomy between an ‘intellectualist’ and a ‘voluntarist’ view of natural law (or between lex immanens and lex imposita). Voluntarism lies at the basis of both theological views, such as Calvinism, and political views, such as those of Hobbes and Locke. The need to counterbalance the undesirable implications of extreme voluntarism may account for much of the developments in ethics and politics during the seventeenth and eighteenth centuries.Scottish natural jurisprudence, which tried to find a middle way between skepticism and extreme voluntarism, is less secular and more empirical than received wisdom admits. There emerged, as one of its ‘accidental’ outcomes, a systematic, self-contained and empirical economic theory from the search for an empirically based normative theory of social life. The basic assumption of such a theory, namely, the notion of societal laws as embedded in trans-individual mechanisms, derives from the voluntarist view of natural law as ‘imposed’ law.Later discussions of social issues in terms of ‘economic’ and ‘ethical’ reasons originated partly from a misreading ofthe Scottish natural jurisprudential framework of economic theory. Starting with this reconstruction, I try to shed some light on recent discussions about the role of ethics in economics. (shrink)
The authors use social science methodology to determine whether a doctrinal shift—from an objectivist view of criminality in the common law to a subjectivist view in modem criminal codes—is consistent with lay intuitions of the principles of justice. Commentators have suggested that lay perceptions of criminality have shifted in a way reflected in the doctrinal change, but the study results suggest a more nuanced conclusion: that the modern lay view agrees with the subjectivist view of modern codes in defining (...) the minimum requirements of criminality, but prefers the common law's objectivist view of grading the punishment deserved. The authors argue that there is practical value in having criminal law track shared community intuitions of the proper rules for assigning liability and punishment. For that reason, the study results support the often criticized subjectivist view of modern codes in setting the minimum requirements of liability, but disapprove of the modern codes' shift away from the common law's objectivist view of grading. (shrink)
Referred to as the "bible of American lawyers," Blackstone's Commentaries on the Laws of England shaped the principles of law in both England and America when its first volume appeared in 1765. For the next century that law remained what Blackstone made of it. Daniel J. Boorstin examines why Commentaries became the most essential knowledge that any lawyer needed to acquire. Set against the intellectual values of the eighteenth century-and the notions of Reason, Nature, and the Sublime-- Commentaries is at (...) last fitted into its social setting. Boorstin has provided a concise intellectual history of the time, illustrating all the elegance, social values, and internal contradictions of the Age of Reason. (shrink)
There are several reasons, according to which it is worth analyzing European administrative law. First, this is a rather new branch of law. Second, the European administrative law is treated in different countries from different legal traditions positions, consequently, any effort to unify the approach to it can provide a basis for a unified European administrative law model. Third, there are no works dedicated to the analysis of the phenomenon of the European administrative law in Lithuania. Therefore, this article deals (...) with the concepts of the European administrative law. It is stated that the comprehensive image of the European administrative law reveals three European administrative law concepts. The first concept of the European administrative law characterizes it as the European Union (hereinafter – EU) administrative law, the validity of boundaries of which can be based on three aspects – functional, institutional and procedural. The second concept of the European administrative law identifies it as the law of administrative cooperation., whereas the third concept allows the European administrative law to be seen as the law common to various public administrations of European countries – ius commune. The article focuses on the analysis of the above-mentioned three approaches and the EU set of administrative procedures as an instrument to promote the development of the EU administrative law. The author comes to the conclusion that the concept of the ‘European Administrative Law’ is broader than the concept of the ‘EU Administrative Law’. The European administrative law can be perceived not only as a part of law that establishes the EU administration’s administrative legal status, its’ activity principles, forms and methods, but also as a law of administrative cooperation between states, governmental and non-governmental organizations and various corporations, based on a wide range of multilateral treaties or conventions, which cross the limits of the EU. Moreover, the European administrative law can be understood as a law with common concepts, general principles characteristic to different European countries’ public administrations as well as a science, with the help of which diverse administrative legal systems of various countries could be compared. Taking into account the content of various working documents, the author draws the conclusion that for the further development of the EU administrative law the establishment of uniform operating rules for the EU administration in its’ relations with the society is of exceptional importance. There are a number of important reasons to develop the Law on administrative procedure of the EU. First, it is generally recognized that the EU needs common binding legislation that sets out clear operating rules of the EU administration in its’ relations with legal and natural persons, and that would increase the transparency of the EU administration and its’ accessibility to citizens. Second, the drafting of the law on administrative procedure of the EU lies in the legal framework as well; the importance of the article 298 of the Treaty of the Functioning of the European Union, the articles 41 and 42 of the Charter of Fundamental Rights of the EU as well as “soft” law (i.e. codes of good administrative behavior) are obvious here. (shrink)
In the past, only norms and rules developed for other types of illegal activities could be applied to misconduct in science in Germany. But only particularly blatant cases of misconduct can be dealt with efficiently in this way. Nowadays, a couple of very important funding agencies and research institutions have enacted special procedures that apply in cases of suspected scientific misconduct. A strongly decentralised system of dealing with misconduct in science is being established in Germany.
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)
Beyond geometry : Leibniz and the science of law -- The force of law : will -- Leibniz's systema iuris -- From the gesetzbuch to the landrecht : the ALR and the triumph of legality -- The rule of law : the Crown Prince lectures and the grounding of legality in order and security -- From reason to history : Savigny's system and the rise of social legal science -- The Bürgerliches Gesetzbuch (BGB) of 1900 : positive legal (...)science and the end of justice. (shrink)
John Earman and John T. Roberts advocate a challenging and radical claim regarding the semantics of laws in the special sciences: the statistical account. According to this account, a typical special science law “asserts a certain precisely defined statistical relation among well-defined variables” (Earman and Roberts 1999) and this statistical relation does not require being hedged by ceteris paribus conditions. In this paper, we raise two objections against the attempt to cash out the content of special science generalizations (...) in statistical terms. (shrink)
The case often made by scientists (and philosophers) against history and the history of science in particular is clear. Insofar as a field of study is historical as opposed to law-based, it is trivial. Insofar as a field attends to the past of science as opposed to current scientific issues, its efforts are derivative and, by diverting attention from acquiring new knowledge, deplorable. This case would be devastating if true, but it has almost everything almost exactly wrong. The (...) study of history and the study of laws are not mutually exclusive, but unavoidably linked. Neither can be pursued without the other. Much the same can be said of the history of science. The history of science is neither a distraction from "real" science nor even merely a help to science. Rather, the history of science is an essential part of each science. Seeing that this is so requires a broader understanding of both history and science. (shrink)
Present laws and regulations even in democratic countries are not sufficient to prevent the grave environmental threats we face. Further, even environmental ethics, when they remain anthropocentric cannot propose a better approach. I argue that, taking in considerations the precautionary principle, and adopting the perspective of post-normal science, the ethics of integrity suggest a better way to reduce ecological threats and promote the human good globally.
It is very well known that from the late-1960s onwards Feyerabend began to radically challenge some deeply-held ideas about the history and methodology of the sciences. It is equally well known that, from around the same period, he also began to radically challenge wider claims about the value and place of the sciences within modern societies, for instance by calling for the separation of science and the state and by questioning the idea that the sciences served to liberate and (...) ameliorate human societies. But what is less known is how, if at all, these two sets of challenges were connected, and why Feyerabend felt it important to raise them at all. In this chapter, my aim is to explore these issues by considering why Feyerabend used radical strategies to challenge the authority of science, and what purpose, if any, they were supposed to serve. Why, for instance, did Feyerabend defend alternative medicine, psychical abilities, astrology, magic and witchcraft and why did he argue that ‘Western science’ is complicit in environmental destruction, intellectual imperialism, social oppression, and spiritual destitution. Located in their historical and political context, such defences and arguments seem peculiar, not least because science was recognised not only as a central site of the intellectual and ideological competition between the West and the Soviet Union, but also because Western victory in that site was considered inevitable. What, then, did Feyerabend think he was trying to achieve by raising radical challenges to a central component of the cultural and intellectual prestige of the Western world grounded in appeals to practices and traditions which most would regard as eccentric at best and absurd at worst? My suggestion is that Feyerabend was making a subtler point than one might suppose. For the purpose of these radical challenges was to determine if the members of Western societies would in fact honour the epistemic standards – of tolerance, critical enquiry – which were identified as being characteristic of science and definitive of the social and political values of Western liberal democracy. I suggest that Feyerabend was trying to demonstrate that scientists were, too often, guilty of the same intolerant and dogmatic attitudes which were, according to prevailing propaganda, the property of illiberal totalitarian societies. Science does not reflect the superior epistemic and political values of Western societies but are, in fact, reflective of the same vices ascribed to the Soviet Union. If that is the case, then the sciences are not symbols of our epistemic and political values, but quite the reverse, hence Feyerabend’s talk of the ‘dogmatic’, ‘totalitarian’, ‘ratiofascist’ nature of modern science. But there is a positive upshot to Feyerabend’s challenge. For even if the sciences do not yet reflect the epistemic and political values of liberal democratic Western societies, they might yet be reformed so that they are. And there is a parallel between Feyerabend’s strategy and that of many of the other radicals of the time – student activists, environmentalists, and pacifists – namely to test the commitment to tolerance and deliberative debate of the establishment by asking it to seriously engage with ideas and convictions opposed to its own. For both science and society can become ‘tyrannical’ through the same means: by exempting themselves from critical scrutiny, by promoting self-serving ‘myths’ about themselves, and by derogating and excluding alternatives, including the ‘outsider’ perspectives they offer. The chapter concludes by suggesting that Feyerabend is distinctive in virtue of his willingness to offer radical criticisms of the authority of science such that it can fulfil its legitimate ideological role – namely, of symbolising and instantiating our core epistemic and political values – such that we can offer a sincere and meaningful answer to Feyerabend’s question ‘what’s so great about science?’. (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 Spirit of the Laws is without question one of the central texts in the history of eighteenth-century thought, yet there has been no complete scholarly English language edition since 1750. This lucid translation renders Montesquieu's problematic text newly accessible to a fresh generation of students, helping them to understand why Montesquieu was such an important figure in the early enlightenment and why The Spirit of the Laws was such an influence on those who framed the American Constitution. Fully annotated, (...) this edition focuses on Montesquieu's use of sources and his text as a whole, rather than on those opening passages toward which critical energies have traditionally been devoted. (shrink)