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)

Revisiting Dawkin’s proposal of memes – a piece of thought copied from person to person – raises the question: can narrative, and by extension narratology, be utilized to explore the ‘infecting’, or transferring agent of cultural ideas, identity and the creation of self? Intriguingly, and perhaps even more relevant to the role of emergent models and the shifting divide between engineered and organic constructions, what role does media play in the fabrication of self? This article proposes to examine various attempts (...) to define modes of being using the formative and delimiting lens of narrative. It will investigate the role of media as the carrier agent for memetic modes of being, and their application in creating and sustaining cultural individuation. Jung’s declarative of the collective unconscious and archetypes, as well as Hofstadter’s loops, a common, but neglected field of enquiry that interrogates how memetic transference begins with the stories we tell, will inform the exploration of narrative as a means to define, delineate and bound the self. (shrink)

On one view of ethical development, someone not yet virtuous can reliably progress by engaging in what meaningfully resembles virtuous conduct. However, if the well-intended conduct is psychologically demanding, one's character, precisely because one is not yet virtuous, may worsen rather than improve. This risk of degradation casts doubt on the developmental view. I counter the doubt through one interpretation and one application of the Mengzi. In passage 2A2, invoking the image of a farmer who “helped” the crop grow (...) by pulling the sprouts, MENG Ke cautions, “do not help it grow.” I defend a novel interpretation: do not advance with a naïve negligence about your psycho-physiological constitution. I also show how to advance with realistic care by pointing out an overlooked application of a much-discussed cultivation technique illustrated in Mengzi 1A7: ethical reflection can conciliate one with one’s ongoing or past advanced action, lowering the action’s risk of degradation. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Convention for Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Biomedicine: Convention on Human Rights and BiomedicineCouncil of EuropePreambleThe Member States of the Council of Europe, the other States and the European Community signatories hereto,Bearing in mind the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948;Bearing in mind (...) the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950;Bearing in mind the European Social Charter of 18 October 1961;Bearing in mind the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights of 16 December 1966;Bearing in mind the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data of 28 January 1981;Bearing also in mind the Convention on the Rights of the Child of 20 November 1989;Considering that the aim of the Council of Europe is the achievement of a greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms;Conscious of the accelerating developments in biology and medicine;Convinced of the need to respect the human being both as an individual and as a member of the human species and recognising the importance of ensuring the dignity of the human being; [End Page 277]Conscious that the misuse of biology and medicine may lead to acts endangering human dignity;Affirming that progress in biology and medicine should be used for the benefit of present and future generations;Stressing the need for international co-operation so that all humanity may enjoy the benefits of biology and medicine;Recognising the importance of promoting a public debate on the questions posed by the application of biology and medicine and the responses to be given thereto;Wishing to remind all members of society of their rights and responsibilities;Taking account of the work of the Parliamentary Assembly in this field, including Recommendation 1160 (1991) on the preparation of a Convention on bioethics;Resolving to take such measures as are necessary to safeguard human dignity and the fundamental rights and freedoms of the individual with regard to the application of biology and medicine;Have agreed as follows:Chapter IGeneral provisionsArticle 1. (Purpose and object)Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine.Each Party shall take in its internal law the necessary measures to give effect to the provisions of this Convention.Article 2. (Primacy of the human being)The interests and welfare of the human being shall prevail over the sole interest of society or science.Article 3. (Equitable access to health care)Parties, taking into account health needs and available resources, shall take appropriate measures with a view to providing, within their jurisdiction, equitable access to health care of appropriate quality. [End Page 278]Article 4. (Professional standards)Any intervention in the health field, including research, must be carried out in accordance with relevant professional obligations and standards.Chapter IIConsentArticle 5. (General rule)An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.The person concerned may freely withdraw consent at any time.Article 6. (Protection of persons not able to consent)1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.2. Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or... (shrink)

Childhood obesity is in important respects a result of legal policies that influence both dietary intake and physical activity. The law must shift focus away from individual risk factors alone and seek instead to promote situational and environmental influences that create an atmosphere conducive to health. To attain this goal, advocates should embrace a population-wide model of public health, and policymakers must critically examine the fashionable rhetoric of consumer choice.

Many computational tools for the simulation and design of emergency evacuation and egress are now available. However, due to the scarcity of human and social behavioral data, these computational tools rely on assumptions that have been found inconsistent or unrealistic. This paper presents a multi-agent based framework for simulating human and social behavior during emergency evacuation. A prototype system has been developed, which is able to demonstrate some emergent behaviors, such as competitive, queuing, and herding behaviors. For illustration, an example (...) application of the system for safe egress design is provided. (shrink)

Increasingly, taxonomies are being developed and used by industry practitioners to facilitate information interoperability and retrieval. Within a single industrial domain, there exist many taxonomies that are intended for different applications. Industry specific taxonomies often represent the vocabularies that are commonly used by the practitioners. Their jobs are multi-faceted, which include checking for code and regulatory compliance. As such, it will be very desirable if industry practitioners are able to easily locate and browse regulations of interest. In practice, multiple sources (...) of government regulations exist and they are often organized and classified by the needs of the issuing agencies that enforce them rather than the needs of the communities that use them. One way to bridge these two distinct needs is to develop methods and tools that enable practitioners to browse and retrieve government regulations using their own terms and vocabularies, for example, via existing industry taxonomies. The mapping from a single taxonomy to a single regulation is a trivial keyword matching task. We examine a relatedness analysis approach for mapping a single taxonomy to multiple regulations. We then present an approach for mapping multiple taxonomies to a single regulation by measuring the relatedness of concepts. Cosine similarity, Jaccard coefficient and market basket analysis are used to measure the semantic relatedness between concepts from two different taxonomies. Preliminary evaluations of the three relatedness analysis measures are performed using examples from the civil engineering and building industry. These examples illustrate the potential benefits of regulatory usage from the mapping between various taxonomies and regulations. (shrink)

John Dewey, one of the most important thinkers of pragmatism, elaborated a specific conception of law partially and gradually in the long course of his intellectual career. This part of his broader philosophical outlook is analyzed here through one of its most important segments - application of law - and interpreted in its historical, social and cultural background. The first part of the article concentrates on the 'objective' reasons for giving emphasis to the application of law in his (...) legal philosophy. This domination of the application of law in his legal thought is derived from the needs of a rapidly changing structure of the American society in the first half of the XX century, and theoretically has its place in an all around phenomenon in American intellectual history in general that Morton White terms antiformalism. The second part of the article analyses his legal conceptions and their connection with the general philosophical position of this pragmatist. Dewey formed his conception of application of law as an integral part of his broader philosophical standpoint, and especially on the basis of his radical reinterpretation of logic and truth. Since his understanding of the legal process has roots in his experimentalist conception of logic that encompasses the apprehension of the process of experimentation as the only warrant for the validity of propositions, he regards application as conditio sine qua non of the legality of norms in general. This leads us to the last part of the article that scathes possible lines of critical approach to Dewey's work in this field. The view that the legality of norms is derived from their application is in legal theory often regarded as sociologism, inasmuch as it disregards the normative aspects of the legal process and emphasizes the social ones to the point of making it void of the normative aspects in the totality of the process itself. The proper understanding of possible lines of criticism of Dewey's standpoints in legal philosophy guides us back again to confront his conceptions with their cultural background, with which the article begins. Autor se u clanku bavi koncepcijom primjene prava u filozofiji Dzona Djuija, pragmatiste bez presedana u obuhvatnosti i temeljnosti bavljenja filozofskim problemima, cije je misljenje na ovim prostorima rijetko bilo predmet razmatranja. Zamisljen kao uvodno ispitivanje filozofsko-pravne problematike u Djuijevoj filozofiji, clanak u prvom dijelu razmatra odnos njegove filozofije prava i americkog kulturnog konteksta. U drugom dijelu je izlozeno Djuijevo shvatanje primjene prava i konfrontirano je s njegovim opstim filozofskim tezama, u prvom redu s koncepcijom logike kao 'ispitivanja ispitivanja'. Konacno, autor pokusava da ocrta osnovne smjernice kritickog pristupa Djuijevim rjesenjima filozofsko-pravnih problema. (shrink)

I graduated from law school in 1970 and I’ve been proud every day since of being a lawyer. My father was a lawyer, as are our two sons, and I’ve always seen lawyers as democracy’s warriors: the people who protect rights and by protecting rights protect justice. You law students are the future democracy warriors—actually, the future of democracy full stop—so this lecture is dedicated to you and to the hope that you will make justice your transcendent preoccupation, no matter (...) what you decide to do with your law degree. You are, after all, in law school where you have a window on what the law says—guided by your professors—and a window on what the law looks like outside the walls of your classrooms—guided by watching the news. (shrink)

"End-Of-Law week drinkS @ ACT Magistrates Court: Friday 20 May 2005." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (198), pp. 24.

There is much interest in moving AI out into real world applications, a move which has been encouraged by recent funding which has attempted to show industry and commerce can benefit from the Fifth Generation of computing. In this article I suggest that the legal application area is one which is very much more complex than it might — at first sight — seem. I use arguments from the sociology of law to indicate that the viewing of the legal (...) system as simply a rule-bound discipline is inherently nave. This, while not new in jurisprudence, is — as the literature of AI and law indicates — certainly novel to the field of artificial intelligence. The socio-legal argument provided is set within the context of AI as one more example of the failure of scientific success and method to easily transmit itself over into the social sciences. (shrink)

RESUMEN Se cuestionan las dos conclusiones imputadas a la aplicación de la "paradoja escéptica de Wittgenstein" al derecho, tal como es desarrollada por S. Kripke. A saber, o bien la paradoja se aplica a la práctica del derecho y esta es indeterminada e imposible, o bien aquella es completamente irrelevante para la práctica del derecho y la reflexión filosófica sobre este. Se sugiere que la filosofía del derecho puede aceptar la relevancia de esta paradoja y obtener nuevos elementos a partir (...) de ella. ABSTRACT The article questions the two conclusions attributed to the application of "Wittgenstein's skeptical paradox" to law, as developed by S. Kripke: that is, either the paradox is applied to the practice of law and it is indeterminate or impossible, or the paradox is completely irrelevant for the practice of law and for philosophical reflection in that respect. The paper suggests that philosophy of right can accept the relevance of the paradox and draw new elements from it. (shrink)

God presented each of us with the gift of human life, for which we each have a duty of stewardship. The complementary principles of totality and integrity provide moral guidance for decisions on whether specific acts are consistent with this obligation. Totality directs that anatomical completeness must not be sacrificed without proportional justification. Integrity focuses on maintaining basic human capacities and provides a hierarchical ordering of higher functions over lower functions for use in decision making. The decisions of secular American (...) courts rely heavily on statutory authority and case precedent. This essay explores whether the moral principle of totality and integrity is reflected in judicial opinions. The first part examines judicial decisions in cases in which the plaintiff’s desired outcome was consistent with the principle of totality and integrity. The second part analyzes judicial decisions in which the desired outcome was not consistent with this moral principle. National Catholic Bioethics Quarterly 12.1 (Spring 2012): 43–54. (shrink)

It has often been said that deconstruction leaves Derrida with nothing positive to say about politics. Critics of Derrida think that the application of deconstruction to politics fails because it overlooks the distinctiveness of political structures. By framing this paper from a case study into the theory of aporias in law and politics and back to the question of apartheid, I argue for a way in which Derrida’s deconstruction is at play both only on a theoretical level and also (...) on a practical level as a corrective to a given political situation. (shrink)

This work analyzes the history of the application of Islamic law (Shari`ah) in Nigeria. It analyzes how Islamic law emerged in Nigeria toward the beginning of the 19th century and remained applicable until the arrival of the British Colonial regime in Northern Nigeria in 1903. It sheds light on how the law survived colonial rule and continues until today. Dr. Yushau Sodiq analyzes progressive elements in Islamic law over the past two centuries. He goes on to discuss many objections (...) raised by the Nigerian Christians against the application of Islamic law, as well as how Muslims respond to such criticism. In a world that is often saturated with Islamophobia and ignorant misconceptions about Islam, this book aims to clarify and respond to many important concepts and ideas within Islamic religious tradition. (shrink)

Since the proclamation of the Universal Declaration of Human Rights, over 165 countries have incorporated human rights standards into their legal systems: the resulting jurisprudence from diverse cultural traditions creates new dimensions to concepts first articulated in 1948. In this revised second edition, Nihal Jayawickrama draws on extensive sources to encapsulate the judicial interpretation of human rights law in one comprehensive volume. Jayawickrama covers the case law of the superior courts of 103 countries in America, Europe, Africa, Asia, the Caribbean (...) and the Pacific, as well as jurisprudence of human rights monitoring bodies. He analyses the judicial application of human rights law to demonstrate empirically the universality of contemporary human rights norms. This definitive volume is essential for legal practitioners, and government and non-governmental officials, as well as academics and students of both constitutional law and the international law of human rights. (shrink)

Some philosophers have recently emphasized the similarities between lawmaking and the production of linguistic utterances in ordinary communication. Based on these similarities, they have defended a theory of legal interpretation that identifies the legal content of a lawmaking act with the communicative content of the authoritative “utterance”. While different versions of the theory differ with respect to which level of utterance content they regard as relevant, they agree that the theory’s scope is fully general in that it applies to all (...) legal systems. In this paper, we argue that this commitment of the theory is problematic. By examining the role of interpretative arguments in legal interpretation, we argue that there is a tension between this commitment and the doctrine of the rule of recognition. In light of this, we argue that Hartian positivism is only compatible with a weakened or “minimal” version of the theory. Insofar as both the communication theory and Hartian positivism provide true insights on how legal content is determined, this result gives us reason to accept only a minimal version of the theory. (shrink)

This article is aimed at representing the approaches of legal theory to the interaction between law and politics and to depict the main national features of the relationship between law and politics. The analysis is based on the adoption of methodology of fundamental work of Mauro Zamboni “Law and Politics”. The adoption of methodology was used only partially, while seeking to identify and clarify the features of static, dynamic and epistemological aspects of the relationship of law and politics in Lithuania. (...) Researchers have faced the problem of a diverse approach to the definitions of law and politics, and it has been resolved by focusing only to the researches representing the standpoint of legal theories. The analysis has led to the findings that there are reasonable grounds to assume that legal content (referring to the “static” aspect of law and politics) in Lithuania is flexible to outgoing politics. This implication is based on 1) the noticeable disproportion of legal regulation in different areas of social life, 2) law-making priority areas determined mostly by the choice of political actors will and 3) through changed execution of legal norms, prefering the forms which could be more cost effective (alternative dispute resolutions) and more suitable for changing social environment. What concerns the “dynamic” aspect of the relation between law and politics, it is implicated that there are backings for both open and closed law making, but at the same time more open legislative features are observed than the closed ones. This tendency is identified in the legislative process, where the help out of non-legal world is applied (using sociology) and the persistence of politicians to access and use the institutes of citizens’ legislative initiative (iniciatives for referendums or other legislative initiatives, the right to petition, etc.) is obvious. The reflection of „epistemological“ aspect of the relationship between law and politics in Lithuanian legal discipline reflects the general trend of international scientific community of law. It is considered to step back from the autonomous legal discipline concepts and in this way the appropriate conditions for incorporation of different categories from other scientific fields are created. On the other hand, a reserved cautious attitude of both researchers and research institutions on the conjunction of law and political science is observed. The interaction between law and economics and business or public relations is still prioritized. (shrink)

The proposed reflection intends to present the problem of judicial adjudication as a substantially-axiologically founded autonomous moment on the practical realization of law, and to explore this understanding in confrontation with external exigencies, mostly teleologically determined—hence, beyond strict deductive application, as a syllogistic reference of facts to norms, and finalistically determined decision, as an option among possible alternatives to achieve specific aims. The main objective is to enter into a discussion on the methodological meaning of “integrity”, “hard cases” and (...) “right answer”, as presented by Ronald Dworkin, and a critical reflection on the criticism of that approach levelled by Neil MacCormick, so as to confront the relevance of principle and policy arguments, in order to bring about a different methodological approach, an alternative jurisprudentialist conception of adjudication, incorporating a practical-normative constitutive dialectics between legal controversy and legal system, such as that presented by Castanheira Neves. The focus will, then, be the legitimacy of the connection of arguments of principle and consequentialist arguments in adjudication, its selection and its justification, stating, therefore, a specifically assumed judicium, a judicative decision, having the legal system as its horizon of normative reference and of substantial and institutional autonomy. (shrink)

The obligation of a court to follow the law of a superior court is commonly taken to be stronger than the obligation of the higher court to respect its own precedent. The Supreme Court has recently asserted this stronger obligation in the most forceful terms. What follows is an attempt to demonstrate that this is wrong as a matter of policy and as a matter of law.

This article elaborates an interpretive and polemic on the study of law, starting from different coordinates to that of legal science in order to postulate an alternative to the understanding of law. For this work, we problematize and detach ourselves from its valuation as a science. We take as a basis the philosophical orientation that views science from the materialistic perspective of the Theory of Categorial Closure, in order to subsequently examine and conceive law as a techno-praxis in relation to (...) the three-dimensional theory as a conceptual framework, thus allowing to consolidate an usable project at the service of the legal researcher. (shrink)

Paolo Sandro’s book is the latest volume in Hart Publishing’s excellent ‘Law and Practical Reason’ series. The book’s theoretical scope is wide, engaging with analytical legal philosophy (of both A...

Society has historically not taken a benign view of genetic disease. The laws permitting sterilization of the mentally re tarded~ and those proscribing consanguineous marriages are but two examples. Indeed as far back as the 5th-10th centuries, B.C.E., consanguineous unions were outlawed (Leviticus XVIII, 6). Case law has traditionally tended toward the conservative. It is reactive rather than directive, exerting its influence only after an individual or group has sustained injury and brought suit. In contrast, state legislatures have not (...) been inhibited in enacting statutes. Many of their products can be characterized as hasty, unnecessary, ill-conceived, and based on the heart rather than the head. Moreover the lack of expert consultation sought has also been remarkable. One state legislature, for example, has advocated immunization for sickle cell anemia! Many others have enacted laws for the screening of inborn errors of metabolism, e.g., phenylketon uria, but have poorly defined the lines of responsibility to secure compliance. A spate of specific disease-related bills has emerged in the u.S. Congress, each seeking recognition and appropriations. Sickle cell anemia, hemophilia, Cooley's anemia and Tay-Sachs disease have been among the front-runners for support. Finally, in 1975, Congress has begun to examine an omnibus bill concerning all forms of genetic disease. The bill, termed the National Genetic Diseases Act is, however, still far from being enacted. (shrink)

Recognizing inherent and inalienable nature of dignity and universality of certain values, the Constitution of the Republic of Poland, introduces to the foundations of Polish legal system some elements of natural law which may be used for application of the Basic Law. Constitutional recognition of these elements only makes sense on the assumption of their cognizability. Therefore, as an important element of constitutional concept of natural law is taken the recognition of the argument of cognitivism according to which moral (...) assessments may have the nature of judgments and truth qualification (they may be true or false). In the course of application of the constitution, norms of natural-law character and natural-law justification. Since dignity and the essence of freedoms and rights based on dignity are the only inviolable values recognized by the constitution, the arguments of natural law lead to a far-going reinterpretation of constitutional norms. The norm of natural law protecting inviolable values will have precedence in the event of collision with norms protecting other values, also with constitutional norms. Even if such a norm is formulated on the basis of the provisions of the constitution, in fact natural law is given higher rank than elements based only on enacted law. Despite that, reliability of a legally established order does not seem to be radically endangered. -/- Konstytucja RP uznając przyrodzoność i niezbywalność godności oraz uniwersalność niektórych wartości, wprowadza do podstaw całego polskiego systemu prawnego elementy prawnonaturalne, które mogą być wykorzystane w stosowaniu konstytucji. Konstytucyjne uznanie takich elementów ma sens przy założeniu ich poznawalności, stąd istotnym elementem konstytucyjnej koncepcji prawa naturalnego jest uznanie tezy kognitywizmu głoszącej, że oceny moralne mogą mieć charakter sądów i kwalifikację prawdziwościową – mogą być prawdziwe lub fałszywe. W procesie stosowania konstytucji mogą być formułowane normy o charakterze prawnonaturalnym oraz uzasadnienia prawnonaturalne. Ponieważ jedynymi wartościami uznanymi w konstytucji za nienaruszalne jest godność oraz istota wolności i praw, których godność jest źródłem, argumentacja prawnonaturalna może prowadzić do daleko idącej reinterpretacji norm konstytucyjnych. Norma prawnonaturalna chroniąca warunki konieczne poszanowania godności lub istoty wolności i praw będzie miała pierwszeństwo w razie kolizji z normami chroniącymi inne wartości, także z normami konstytucyjnymi. Choć norma taka będzie formułowana na podstawie przepisów konstytucji, to jednak faktycznie prawo naturalne uzyskuje wyższą rangę od elementów opartych jedynie na stanowieniu. Mimo tego bezpieczeństwo prawne nie wydaje się być radykalnie zagrożone. O prawnonaturalnym charakterze normy i uzasadnienia decyduje oparcie w ocenach moralnych, które pretendują do bycia sądami, do bycia prawdziwymi lub fałszywymi. Z punktu widzenia stosowania konstytucji i wymogu intersubiektywnej komunikowalności i kontrolowalności dookreślania treści prawnonaturalnych, dla nadania ocenom charakteru sądów istotny jest kształt procedur i argumentacji prowadzących do tego dookreślenia. Powinny to być procedury i argumentacja typowe dla dyskursu mającego na celu sformułowanie prawdziwych sądów. Maksymalizowana powinna być dyskursywność takich procedur, a podstawą rozstrzygnięcia powinien być, jeśli to tylko możliwe, konsens. Nie mogą być uważane za rozstrzygające argumenty odwołujące się do woli indywidualnej lub zbiorowej, reakcji emocjonalnych, stopnia rozpowszechnienia danej oceny czy do tradycji kulturowej. (shrink)

The article presents possible applications of Paul Ricoeur’s theory in interpretation of legal texts and legally relevant human action. One should notice that Paul Ricoeur developed a comprehensive interpretation theory of two seemingly distant phenomena: literary texts and human action. When interrelating these issues, it becomes possible, on the basis of Ricoeur’s work, to construct a unified theory of the interpretation of legal texts and of legally relevant human action. What is provided by this theory for jurisprudence is the possibility (...) of formulating a comprehensive theory of application of law, well established in the ontology of the recipient of the legal text. It should be emphasised that the resulting benefits, outlined in the article become particularly noticeable when set against the background of the methodological weaknesses of legal positivism, concerning both the interpretation of law and a syllogistic model of its application. (shrink)

The article deals with the issue of initial impossibility of performance of an obligation and the influence of such impossibility of performance on the validity of the legal transaction that establishes such an obligation. The legal doctrine convincingly demonstrates that for Roman lawyers the rule Impossitionbilium nulla obligatio est merely meant that nobody can be obliged to perform something that cannot be performed; however, it did not necessarily follow that a contract establishing such an obligation was void. Modern civil codifications (...) overlook another significant feature of the Roman law – the uncontested application of the principle Impossibilium nulla obligatio est only in case of stipulatio, whereas modern contract law has its origins in the Roman law of consensual contracts. (shrink)