Drawing on philosophical pragmatism, Tamanaha formulates a framework for a realistic approach to socio-legal theory. The strengths of this approach are contrasted with that of the major schools of socio-legal theory by application to core issues in this area. Thus Tamanaha explores the problematic state of socio-legal studies, the relationship between behaviour and meaning, the notion of legal ideology, the problem of indeterminacy in rule following and application, and the structure of judicial decision making. These issues are tackled (...) in a clear and concise fashion while articulating a social theory of law that draws equally from legal theory and socio-legal theory. `This book provides a useful, and at times provocative, review of recent developments in legal theory. Because it covers considerable territory, it should be a good addition to one's professional library... there is much to commend in this book. It is well written, ably argued, and generally knowledgeable. It treats controversial topics forthrightly...an excellent review of the legal theory literature.... It should provide a worthwhile venture into familiar debates rendered from a perspective that owes allegiance to no side.' Law and Politics Book Review `by any criterion and excellent book...Tamanaha has produced a work which should feature as a core text in jurisprudence courses' Oxford Journal of Legal Studies `This is the most significant piece of work for anybody in Jurisprudence, Socio-Legal Studies, or Legal Theory' Neil MacCormick `a rich insight into almost every question legal theory has vexed itself over the past twenty-five years' Stanley Fish. (shrink)

Prominent analytical jurisprudents assert that a theory of law consists of necessary, universal truths about the nature of law. This often-repeated claim, which has not been systematically established, is critically examined in this essay. I begin with the distinction between natural kinds and social artifacts, drawing on the philosophy of society to show that necessity claims about law require a fundamental reworking of basic understandings of ontology and epistemology, which legal philosophers have not undertaken. I show law is a poor (...) fit for a priori and a posteriori knowledge. I distinguish between universal application and universal truth, showing the former is sound while the latter is not. I expose the implications that follow from the initial selection of the central case of law, demonstrating that this choice must be justified, and I reveal two ways analytical jurisprudents shield their theories of law from refutation. This analysis raises significant doubts about the claim by analytical jurisprudents that they are identifying necessary, universal truths about the nature of law. (shrink)

The rule of law is the most important political ideal today, yet there is much confusion about what it means and how it works. This 2004 book explores the history, politics, and theory surrounding the rule of law ideal, beginning with classical Greek and Roman ideas, elaborating on medieval contributions to the rule of law, and articulating the role played by the rule of law in liberal theory and liberal political systems. The author outlines the concerns of Western conservatives about (...) the decline of the rule of law and suggests reasons why the radical Left have promoted this decline. Two basic theoretical streams of the rule of law are then presented, with an examination of the strengths and weaknesses of each. The book examines the rule of law on a global level, and concludes by answering the question of whether the rule of law is a universal human good. (shrink)

A theoretical and sociological exploration of the relationship between law and society, this book constructs an approach to law that integrates legal theory with sociological approaches to law. Law is generally understood to be a mirror of society--a reflection of its customs and morals--that functions to maintain social order. Focusing on this common understanding, the book conducts a survey of Western legal and social theories about law and its relationship within society, engaging in a theoretical and empirical critique of this (...) common understanding. (shrink)

This chapter contains sections titled: A Mirror of Society that Functions to Maintain Social Order Law as Social Ordering The Institutional Form of Law The Semiautonomy of Legal Knowledge and Processes Legal Pluralism Law and Society in the Twenty‐First Century–Law as an Instrument References.

How might the social sciences best be employed in the study of law, especially in light of today's legal climate of anti-foundationalism? Realistic Socio-Legal Theory addresses this question thoroughly and precisely. Drawing upon philosophical pragmatism to construct an epistemological and methodological foundation, this book formulates a framework for a realistic approach to socio-legal theory. Brian Z. Tamanaha contrasts the strengths of his realistic approach with those of the major schools of socio-legal theory through application to many key issues (...) in the field. He explores the problematic state of socio-legal studies, the relationship between behavior and meaning, the notion of legal ideology, the nature of the concept of law, the problem of indeterminacy in rule following and application, and the structure of judicial decision making. Tamanaha's discussion is always clear and concise as he articulates a social theory of law that draws equally from legal theory and socio-legal studies. His book has much to offer those interested in the gathering and organization of knowledge about law and legal phenomena. (shrink)

H.L.A. Hart described his classic book, The Concept of Law, as a work in «descriptive sociology», and his aspiration was to produce a general jurisprudence. He was less than successful in achieving both of these aims. This article attempts a comprehensive reconstruction of legal positivism in a manner that will render it more compatible with a sociological approach, and more amenable to the project of general jurisprudence. The label «socio-legal positivism» reflects the fact that this article grafts the insights and (...) orientation of socio-legal theory onto the core tenets of legal positivism. In the course of this reconstruction, certain traditional views of legal positivists, especially those regarding the function of law and the nature of the concept of law, are discarded or modified. A number of Hart's key insights are preserved, but resituated within a broader framework. And the relationship between legal positivism and natural law is altered dramatically. The result of this reconstruction is the foundation for the construction of a general jurisprudence that better fits the complex and variable situation of law in society today. (shrink)

This book brings together contributions from academics and practitioners to explore the implications of legal pluralism for legal development.

Introduction : a realistic perspective -- The third branch of jurisprudence -- What is law? -- Necessary and universal truths about law? -- A genealogical view of law -- Law in the age of organizations -- What is international law? -- Conclusion : a realistic theory of law.

Throughout the medieval period law was seen as the product of social groups and associations that formed legal orders, as Max Weber elaborates, "either constituted in its membership by such objective characteristics of birth, political, ethnic, or religious denomination, mode of life or occupation, or arose through the process of explicit fraternization." During the second half of the Middle Ages, roughly the tenth through fifteenth centuries, there were "several distinct types of law, sometimes competing, occasionally overlapping, invariably invoking different traditions, (...) jurisdictions and modes of operation." Types of law included imperial and royal edicts and statutes, canon law, unwritten customary law of tribes and localities, written Germanic law, residual Roman law, municipal statutes, the law of merchants and of guilds, and in England the common law, on the continent the Roman law of jurists after the twelfth century revival of the Justinian Code. The types of courts included various imperial and royal courts, ecclesiastical courts, manorial or seigniorial courts, village courts, municipal courts in cities, merchant courts, and guild courts. Serving as judges in these courts, respectively, were kings or their appointees, Bishops and abbots, barons or lords of the manor or their appointees, local lay leaders, leading burghers, merchants, and members of the guild. These various positions were not wholly separate-many high government officials were in religious orders, while Churches held landed estates that came with local judicial responsibilities. "Bishops, abbots and prioresses, as lords of temporal possessions, controlled manorial or honorial courts at which they sometimes, though not generally, presided in person, exercising responsibility for criminal and customary law." "The result was the existence of numerous law communities," Weber wrote, "the autonomous jurisdictions of which overlapped, the compulsory, political association being only one such autonomous jurisdiction in so far as it existed at all." Jurisdictional rules for judicial tribunals and the laws to be applied related to the persons involved and the subject matter at issue. The personality principle linked law to a person's community or association, and under feudalism property ownership came wrapped together with the right to judge those tied to the property. "Demarcation disputes between these laws and courts were numerous." Jurisdictional conflicts arose especially in relation to ecclesiastical courts, which claimed broad jurisdiction over personal status laws (marriage, divorce, inheritance) and moral crimes, as well as church property and personnel, matters which regularly overlapped with the jurisdiction of other courts. Furthermore, different bodies of law could be applicable in a given court in a given case. "It was common to find many different codes of customary law in force in the same kingdom, town or village, even in the same house, if the ninth century bishop Agobard of Lyons is to be believed when he says, 'It often happened that five mem were present or sitting together, and not one of them had the same law as another.'" In long settled areas, the personal law of communities became local customary law. People living within cities were subject to municipal statutes and customary law on certain matters (penal law, procedural), and the community law to which they were attached. (shrink)

Sociological Approaches to Theories of Law applies empirical insights to examine theories of law proffered by analytical jurisprudents. The topics covered include artifact legal theory, law as a social construction, idealized accounts of the function of law, the dis-embeddeness of legal systems, the purported guidance function of law, the false social efficacy thesis, missteps in the quest to answer 'What is law?', and the relationship between empiricism and analytical jurisprudence. The analysis shows that on a number of central issues analytical (...) jurisprudents assert positions inconsistent with the social reality of law. Woven throughout the text, the author presents a theoretically and empirically informed account of law as a social institution. The overarching theme is that philosophical claims about the nature of law can be tested and improved through greater empirical input. (shrink)

Brian Z. Tamanaha has written extensively on realism in jurisprudence, but in his Realistic Theory of Law (2018), he uses "realism" in a commonplace way to ground a rough outline of legal history. While he refers to his method as genealogical, he does not acknowledge the complex tensions in the development of the philosophical use of that term from Nietzsche to Foucault, and the complex epistemological issues that separate them. While the book makes many interesting points, the methodological (...) concerns outweigh them in the overall assessment of the value of the work. (shrink)

At the same time that social justice concerns are on the rise on college campuses, empathy levels among US college students are falling. Social injustice resulting from organizational decisions and actions causes profound and unnecessary human suffering, and research to understand antecedents to these decisions and actions lacks attention. Empathy represents a potential tool and critical skill for organizational decision-makers, with empirical evidence linking empathy to moral recognition of ethical situations and greater breadth of understanding of stakeholder impact and improved (...) financial success. This study explores the potential relationship between empathy and social justice, using a multifaceted operationalization of social justice, which includes management actions and social sympathies. Results broadly support the positive empathy and social justice relationship and suggest higher education interventions to develop empathy in college business students. (shrink)

Rationale: Deep brain stimulation (DBS) of the hippocampus is proposed for enhancement of memory impaired by injury or disease. Many pre-clinical DBS paradigms can be addressed in epilepsy patients undergoing intracranial monitoring for seizure localization, since they already have electrodes implanted in brain areas of interest. Even though epilepsy is usually not a memory disorder targeted by DBS, the studies can nevertheless model other memory-impacting disorders, such as Traumatic Brain Injury (TBI). Methods: Human patients undergoing Phase II invasive monitoring for (...) intractable epilepsy were implanted with depth electrodes capable of recording neurophysiological signals. Subjects performed a delayed-match-to-sample (DMS) memory task while hippocampal ensembles from CA1 and CA3 cell layers were recorded to estimate a multi-input, multi-output (MIMO) model of CA3-to-CA1 neural encoding and a memory decoding model (MDM) to decode memory information from CA3 and CA1 neuronal signals. After model estimation, subjects again performed the DMS task while either MIMO-based or MDM-based patterned stimulation was delivered to CA1 electrode sites during the encoding phase of the DMS trials. Each subject was sorted (post hoc) by prior experience of repeated and/or mild-to-moderate brain injury (RMBI), TBI, or no history (control) and scored for percentage successful delayed recognition (DR) recall on stimulated vs. non-stimulated DMS trials. The subject’s medical history was unknown to the experimenters until after individual subject memory retention results were scored. Results: When examined compared to control subjects, both TBI and RMBI subjects showed increased memory retention in response to both MIMO and MDM-based hippocampal stimulation. Furthermore, effects of stimulation were also greater in subjects who were evaluated as having pre-existing mild-to-moderate memory impairment. Conclusion: These results show that hippocampal stimulation for memory facilitation was more beneficial for subjects who had previously suffered a brain injury (other than epilepsy), compared to control (epilepsy) subjects who had not suffered a brain injury. This study demonstrates that the epilepsy/intracranial recording model can be extended to test the ability of DBS to restore memory function in subjects who previously suffered a brain injury other than epilepsy, and support further investigation into the beneficial effect of DBS in TBI patients. (shrink)

In this paper I try briefly to say why I think that what D.Z. Phillips had to say about belief in God can be defended against certain familiar criticisms, and why I think that his treatment could have been improved. I note passages in his writings which might be thought not to reflect what belief in God amounts to, but I argue that these passages can be read as reflecting belief in God as we find it in biblical authors and (...) in writers like Thomas Aquinas. Having noted that Phillips rejects attempts to do natural theology on largely Humean grounds, I argue against these grounds as echoed by Phillips and draw attention to a tradition of natural theology not subject to Humean objections, a tradition to which Phillips might have paid more attention than he did. (shrink)

This paper notes and discusses some key arguments in Part One of The Problem of Evil and the Problem of God by D. Z. Phillips. With an eye on some texts of Thomas Aquinas, I reject Phillips's view that belief in divine omnipotence leads to absurd claims concerning God, but I defend his rejection of anthropomorphism when it comes to talk of God, and, with qualifications, I defend and elaborate on his suggestion that God is not a moral agent. I (...) also commend his critique of certain well-known theodicies (e.g. that provided by Richard Swinburne), although I challenge his appeal to what he calls “the grammar of God.”. (shrink)

In this response to D. Z. Phillips's critique of my interpretation of Wittgenstein's view of magic and ritual, I counter Phillips's claim that I have misrepresented the Wittgensteinian view of ritual, consider the instrumentalist dimension of the Remarks on Frazer's Golden Bough, offer some objections to Phillips's expressivist view that a ritual ‘says itself’, and detect obscurantism in his approach to the study of religion.

Most recent work on the nature of experiment in physics has focused on "big science"--the large-scale research addressed in Andrew Pickering's Constructing Quarks and Peter Galison's How Experiments End. This book examines small-scale experiment in physics, in particular the relation between theory and practice. The contributors focus on interactions among the people, materials, and ideas involved in experiments--factors that have been relatively neglected in science studies. The first half of the book is primarily philosophical, with contributions from Andrew Pickering, Peter (...) Galison, Hans Radder, Brian Baigrie, and Yves Gingras. Among the issues they address are the resources deployed by theoreticians and experimenters, the boundaries that constrain theory and practice, the limits of objectivity, the reproducibility of results, and the intentions of researchers. The second half is devoted to historical case studies in the practice of physics from the early nineteenth to the early twentieth century. These chapters address failed as well as successful experimental work ranging from Victorian astronomy through Hertz's investigation of cathode rays to Trouton's attempt to harness the ether. Contributors to this section are Jed Z. Buchwald, Giora Hon, Margaret Morrison, Simon Schaffer, and Andrew Warwick. With a lucid introduction by Ian Hacking, and original articles by noted scholars in the history and philosophy of science, this book is poised to become a significant source on the nature of small-scale experiment in physics. (shrink)

Authors have a lot of leeway with regard to what they can make true in their story. In general, if the author says that p is true in the fiction we’re reading, we believe that p is true in that fiction. And if we’re playing along with the fictional game, we imagine that, along with everything else in the story, p is true. But there are exceptions to these general principles. Many authors, most notably Kendall Walton and Tamar Szabó Gendler, (...) have discussed apparent counterexamples when p is “morally deviant”. Many other statements that are conceptually impossible also seem to be counterexamples. In this paper I do four things. I survey the range of counterexamples, or at least putative counterexamples, to the principles. Then I look to explanations of the counterexamples. I argue, following Gendler, that the explanation cannot simply be that morally deviant claims are impossible. I argue that the distinctive attitudes we have towards moral propositions cannot explain the counterexamples, since some of the examples don’t involve moral concepts. And I put forward a proposed explanation that turns on the role of ‘higher-level concepts’, concepts that if they are satisfied are satisfied in virtue of more fundamental facts about the world, in fiction, and in imagination. (shrink)

Normative Externalism argues that it is not important that people live up to their own principles. What matters, in both ethics and epistemology, is that they live up to the correct principles: that they do the right thing, and that they believe rationally. This stance, that what matters are the correct principles, not one's own principles, has implications across ethics and epistemology. In ethics, it undermines the ideas that moral uncertainty should be treated just like factual uncertainty, that moral ignorance (...) frequently excuses moral wrongdoing, and that hypocrisy is a vice. In epistemology, it suggests we need new treatments of higher-order evidence, and of peer disagreement, and of circular reasoning, and the book suggests new approaches to each of these problems. Although the debates in ethics and in epistemology are often conducted separately, putting them in one place helps bring out their common themes. One common theme is that the view that one should live up to one's own principles looks less attractive when people have terrible principles, or when following their own principles would lead to riskier or more aggressive action than the correct principles. Another common theme is that asking people to live up to their principles leads to regresses. It can be hard to know what action or belief complies with one's principles. And now we can ask, in such a case should a person do what they think their principles require, or what their principles actually require? Both answers lead to problems, and the best way to avoid these problems is to simply say people should follow the correct principles. (shrink)

On the dominant contemporary accounts of how practical considerations affect what we ought to believe, practical considerations either encroach on epistemic rationality by affecting whether a belief is epistemically justified, or constitute distinctively practical reasons for belief which can only affect what we ought to believe by conflicting with epistemic rationality. This paper argues that Søren Kierkegaard offers a promising alternative view on which practical considerations can affect what we ought to believe without either encroaching on or (necessarily) conflicting with (...) epistemic rationality by determining which among the epistemically permitted outright doxastic attitudes one should all‐things‐considered adopt. (shrink)

We provide a new interpretation of Zeno’s Paradox of Measure that begins by giving a substantive account, drawn from Aristotle’s text, of the fact that points lack magnitude. The main elements of this account are (1) the Axiom of Archimedes which states that there are no infinitesimal magnitudes, and (2) the principle that all assignments of magnitude, or lack thereof, must be grounded in the magnitude of line segments, the primary objects to which the notion of linear magnitude applies. Armed (...) with this account, we are ineluctably driven to introduce a highly constructive notion of (outer) measure based exclusively on the total magnitude of potentially infinite collections of line segments. The Paradox of Measure then consists in the proof that every finite or potentially infinite collection of points lacks magnitude with respect to this notion of measure. We observe that the Paradox of Measure, thus understood, troubled analysts into the 1880’s, despite their knowledge that the linear continuum is uncountable. The Paradox was ultimately resolved by Borel in his thesis of 1893, as a corollary to his celebrated result that every countable open cover of a closed line segment has a finite sub-cover, a result he later called the “First Fundamental Theorem of Measure Theory.” This achievement of Borel has not been sufficiently appreciated. We conclude with a metamathematical analysis of the resolution of the paradox made possible by recent results in reverse mathematics. (shrink)

The paper is divided into two parts, each with subsections. In the first part, I shall discuss some matters that have been extensively examined by Kim, namely what the basic types of supervenience are and how they are pairwise logically related; in the course of this discussion, I shall distinguish a weak from a strong notion of global supervenience. In the second part, I shall examine supervenience in a context in which Kim has not: I shall attempt to solve a (...) puzzle that arises when we consider supervenience relations involving vague properties and/or predicates. This is, of course, not a special case of property/predicate super- venience, but the typical one: for virtually all properties/predicates are vague. The two parts of the paper stand independently of each other. Of the discussion in the first part, essentially all that is presupposed in the second is the notion of “world strong supervenience” defined in section 1 of part I. (shrink)

The paper identifies in the literature two categories of codes of ethics, inspirational and prescriptive, and introduces new classification categories of allodial and decretal. The first classification is based on the identity of the ethics decision‐maker – the authors or the addressees of codes. The second classification is based on whether operational definitions are applied by the codes. Such concrete definitions may be in the rules themselves, in related documents or be known from shared knowledge. The second classification has importance (...) if national associations of accountants use codes as a means for assurance of specific outcomes of defined ethical behaviours. For the study, a survey of 57 codes of ethics issued by national associations of professional accountants was undertaken to determine the basic features of codes and to analyse their content. The areas of ethical concern in national associations were identified and compared to the IFAC model code for professional accountants. The paper reports that national organisations of accountants have promulgated decretal codes in 96% of cases examined. As these codes contain operational definitions, their outcomes can be scientifically measured and sanctions for breaches fairly and reasonably imposed. (shrink)

Scientific Essentialism defends the view that the fundamental laws of nature depend on the essential properties of the things on which they are said to operate, and are therefore not independent of them. These laws are not imposed upon the world by God, the forces of nature or anything else, but rather are immanent in the world. Ellis argues that ours is a dynamic world consisting of more or less transient objects which are constantly interacting with each other, and whose (...) identities depend on their roles in these processes. Natural objects must behave as they do, because to do otherwise would be contrary to their natures. The laws of nature are, therefore, metaphysically necessary, and consequently, there are necessary connections between events. Brian Ellis calls for the rejection of the theory of Humean Supervenience and an implementation of a new kind of realism in philosophical analysis. (shrink)

The paper identifies in the literature two categories of codes of ethics, inspirational and prescriptive, and introduces new classification categories of allodial and decretal. The first classification is based on the identity of the ethics decision‐maker – the authors or the addressees of codes. The second classification is based on whether operational definitions are applied by the codes. Such concrete definitions may be in the rules themselves, in related documents or be known from shared knowledge. The second classification has importance (...) if national associations of accountants use codes as a means for assurance of specific outcomes of defined ethical behaviours. For the study, a survey of 57 codes of ethics issued by national associations of professional accountants was undertaken to determine the basic features of codes and to analyse their content. The areas of ethical concern in national associations were identified and compared to the IFAC model code for professional accountants. The paper reports that national organisations of accountants have promulgated decretal codes in 96% of cases examined. As these codes contain operational definitions, their outcomes can be scientifically measured and sanctions for breaches fairly and reasonably imposed. (shrink)

The relation between the Greek and Judeo-Christian traditions is "the great problem" of Western philosophy, according to Emmanuel Levinas. In this book Brian Schroeder, Silvia Benso, and an international group of philosophers address the relationship between Levinas and the world of ancient thought. In addition to philosophy, themes touching on religion, mythology, metaphysics, ontology, epistemology, ethics, and politics are also explored. The volume as a whole provides a unified and extended discussion of how an engagement between Levinas and thinkers (...) from the ancient tradition works to enrich understandings of both. This book opens new pathways in ancient and modern philosophical studies as it illuminates new interpretations of Levinas' ethics and his social and political philosophy. (shrink)