Christopher Columbus Langdell has not only damaged the study of law with his three follies: his legal formalism, his redacted appellate case method, and his notion that legal practice taints the professor of law. His three follies have also impaired character development critical for legal actors. This Article focuses on four such critical character traits and virtues impaired by Langdell: (i) imagination, (ii) empathy, (ii) balance, and (iv) integrity. -/- This Article also calls out potential character issues with two professor (...) types inspired by Langdell: (v) the hazing professor who confuses intellectual rigor with intense discomfort and who uses the redacted appellate case method to inflict such discomfort at the expense of better pedagogy, and (vi) the professor without substantial practice experience who is substantially paid to teach what she has never practiced. -/- Agreeing with C.S. Pierce that the best argument is a cable rather than a chain, I end by weaving in a Langdell villanelle. I hope such a cable can help lift Langdell and his follies from legal education and the world. (shrink)

Even if one sees the law as “a self-contained system of legal reasoning” from which we deduce “neutral,” non-political conclusions from “general principles and analogies among cases and doctrines” (including formalist claims that judges simply call “balls and strikes” like umpires in a baseball game), one should still consider certain characteristics of the party making such deductions or calling such “balls and strikes.” [Relevant citations to quoted language are in the Article.] If such decision maker has questionable motivations, lacks proper (...) perspective, does not grasp the flexibility in the concepts in play, does not grasp the restraints on concepts in play, does not follow the proper processes involved, and lacks the detail, courage, and tenacity needed to reach the proper “deduction” or “call,” on the face of things the formalist, too, should have reason to re-examine any “deduction” or “call” by such party. Thus, even the formalist should not deny the critical role of virtue when examining legal analysis, a role belying the notion of law as a "self-contained system of legal reasoning." -/- This Article thus explores basic freedoms and restraints applicable to legal analysis and the role that virtue plays in balancing such freedoms and restraints. Such exploration covers: (i) the origin, nature, and purpose of concepts and categories used in legal analysis; (ii) the experiential nature of the meaning of such concepts and categories used in legal analysis; (iii) the freedoms and restraints applicable to such concepts and categories as a result of either experience or of the concepts or categories themselves; (iv) how workable notions of virtue rightly balance such freedoms and restraints in legal analysis; (v) the distinction between such virtue and skill; (vi) reconceiving the analytically virtuous mean as a proper balance between such applicable freedoms and restraints; and (vii) defining and surveying the particular virtues that lead us to such proper balance and thus to good legal analysis. My hope is that lawyers and law schools in their curricula will follow such explorations as well in a quest to better understand legal analysis and how to teach and perform it well. (shrink)

Note: This draft was updated on November 10, 2020. Discussing federal statutes, Justice Scalia tells us that “[t]he stark reality is that the only thing that one can say for sure was agreed to by both houses and the president (on signing the bill) is the text of the statute. The rest is legal fiction." How should we take this claim? If we take "text" to mean the printed text, that text without more is just a series of marks. If (...) instead we take "text" (as we must) to refer to something off the page such as the "meaning" of the series of marks at issue, what is that meaning and how do we know that all the legislators "agreed" on that "meaning"? In seeking answers here, we necessarily delve into semiotics (i.e., the “general theory of signs”) by noting that meaningful ink marks ("signifiers) signify a meaning beyond themselves (the "signified.") Thus, understanding how signs function is integral to lawyers' textual and linguistic analysis. Additionally, as this article demonstrates, legal analysis and rhetoric are much impoverished if lawyers ignore nonverbal signs such as icons, indices, and nonverbal symbols. In providing a broad overview of semiotics for lawyers, this article thus (1) begins with a general definition of signs and the related notion of intentionality. It then turns to, among other things, (2) the structure and concomitants of signs in more detail (including the signifier and the signified), (3) the possible correlations of the signifier and the signified that generate signs of interest to lawyers such as the index, the icon, and the symbol; (5) the expansion of legal rhetoric through use of the index, the icon, and the non-verbal as well as the verbal symbol, (6) the nature of various semiotic acts in public and private law (including assertives, commissives, directives, and verdictives); (7) the interpretation and construction of semiotic acts (including contracts as commissives and legislation as directives); (8) the role of speaker or reader meaning in the interpretation and construction of semiotic acts; (9) the semiotics of meaning, time, and the fixation of meaning debate; (10) the impact of signifier drift; (11) the distinction between sense and understanding; and (12) some brief reflections on semiotics and the First Amendment. This article also provides an Appendix of further terms and concepts useful to lawyers in their explorations of semiotics. (shrink)

This article maintains that the so-called theory-practice divide in legal education is not only factually false but semantically impossible. -/- As to the divide's falsity, practitioners have of course performed excellent scholarship and academics have excelled in practice. As to the divide's semantic impossibility, this article examines, among other things: -/- (1) the essential role of experience in meaning, -/- (2) the resulting inseparability of theory and practice in the world of experience, -/- (3) problems the divide shares in common (...) with debunked Cartesian dualism, and -/- (4) modern cognitive psychology’s notions of embodied meaning which further underscore the semantic impossibility of separating theory from practice in the world of experience. -/- Using insights from such examinations, this article also explores implications of a debunked theory-practice divide for, among other things, law school curriculums and law school faculty hiring standards. -/- Keywords: legal education, legal writing, semantics, theory, practice, experience, Charles Sanders Peirce, embodied meaning, cognitive psychology, Cartesian dualism, affordance knowledge, metaphor, George Lakoff, category, humanities, Langdell, pragmatism, semiotics, philosophy. (shrink)

Many wrongly believe that emotion plays little or no role in legal reasoning. Unfortunately, Langdell and his “scientific” case method encourage this error. A careful review of analysis in the real world, however, belies this common belief. Emotion can be cognitive, and cognition can be emotional. Additionally, modern neuroscience underscores the “co-dependence” of reason and emotion. Thus, even if law were a certain science of appellate cases (which it is not), emotion could not be torn from such “science.” -/- As (...) we reform legal education, we must recognize the role of cognitive emotion in law and legal analysis. If we fail to do this, we shortchange law schools, students, and the bar in grievous ways. We shortchange the very basics of true and best legal analysis. We shortchange at least half the universe of expression (the affective half). We shortchange the importance of watching and guarding the true interests of our clients, which interests are inextricably intertwined with affective experience. We shortchange the importance of motivation in law, life, and legal education. How can lawyers understand the motives of clients and other relevant parties without understanding the emotions that motivate them? How can lawyers hope to persuade judges, other advocates, or parties across the table in a transaction without grasping affective experience that motivates them? How can law professors fully engage students while ignoring affective experience that motivates students? Finally, we shortchange matters of life and death: emotions affect health and thus the very vigor of the bar. -/- Using insights from practice, modern neuroscience, and philosophy, I therefore explore emotion and other affective experience through a lawyer’s lens. In doing this, I reject claims that emotion and other affective experience are mere feeling (though I do not discount the importance of feeling). I also reject claims that emotion and other affective experience are necessarily irrational or beyond our control. Instead, such experience is often intentional and quite rational and controllable. After exploring law and affective experience at more “macro” levels, I consider three more specific examples of the interaction of law and emotion: (i) emotion, expression, and the first amendment, (ii) emotion in legal elements and exceptions, and (iii) emotion and lawyer mental health. To provide lawyers and legal scholars with a “one-source” overview of emotion and the law, I have also included an Appendix addressing a number of particular emotions. -/- Keywords: Emotion, Cognitive Emotion, Reason, Logos, Pathos, Legal Analysis, Legal Reasoning, Neuroscience, Philosophy, Persuasion, Rhetoric, Expression, First Amendment, Free Speech, Common Law Murder, Mental Health, NAACP v. McCrory, Anger, Contempt, Disgust, Hate, Malice. (shrink)

Lawyers and judges cannot adequately address the nature of text, meaning, or interpretation without reference to the insights provided by linguists and philosophers of language. Exploring some of those insights, this article focuses upon what linguists and philosophers of language call “pragmatics.” Pragmatics examines the relations between words and users rather than the relations of words to words (syntax) or the relations of words to the world (semantics). In other words, pragmatics studies how language users actually use and interpret words (...) and other signs in communication. -/- Pragmatics recognizes that speaker meaning can differ from (and even contradict) linguistic meaning, including the literal meaning of text. In its proper context, for example, “Bob is indeed a good lawyer” can ironically mean just the opposite. Pragmatics also recognizes that relevant text is not a thing-in-itself that is simply given. Good lawyers look at such things as purpose and cohesion when determining relevant text. They do not simply take their opponent’s (or even their client’s) assertions of relevance. -/- Pragmatics also provides lawyers with a number of specific concepts and tools which are helpful in determining speaker meaning. For user convenience, this article attempts to set out in one place a number of such concepts and tools. These include: (1) types of cohesion that help determine relevant text, (2) types of context that help determine meaning, (3) pragmatic principles of construction such as principles of relevance and politeness, and (4) important pragmatic notions or devices such as anaphora, cataphora, ellipsis, deixis, presupposition, unstated premises, entailment, and implementives. -/- Finally, as a recurring example (among others) of pragmatics in action, this article examines from multiple perspectives textual issues raised in King v. Burwell, 576 U.S. __ (2015). -/- Keywords: Pragmatics, Semiotics, Interpretation, Textualism, Plain Meaning, King v. Burwell, Affordable Care Act, Text, Meaning, Speaker Meaning, Implicature. (shrink)

Brief thoughts on why Rawls' "fictional" veil of ignorance is in fact real and why social morals and self-interest thus converge.

The hermeneutic pragmatism explored in this article timely examines how “post-truth” claims over-estimate semantic freedoms while at the same time underestimating semantic and pre-semantic restraints. Such pragmatism also timely examines how formalists err by committing the reverse errors. Drawing on insights from James, Peirce, Putnam, Rorty, Gadamer, Derrida, and others, such hermeneutic pragmatism explores (1) the necessary role of both internal and objective experience in meaning, (2) the resulting instrumental nature of concepts required to deal with such experience, (3) the (...) related need for workability to apply to the “the collectivity of experience’s demands, nothing being omitted,” (4) the inherent role of morality and other norms in measuring such workability, (5) the semantic as well as experiential nature of our workable realities, (6) the semantic freedoms involved in constructing, framing, and retaining our workable realities and concepts, and (7) the semantic, pre-semantic, and other restraints on constructing, framing, and retaining our workable realities and concepts. -/- Such hermeneutic pragmatism also introduces Eunomia, a real-world alternative to Dworkin’s superhuman judge Hercules. Named after the Greek goddess of good order, the human Eunomia represents the reasonable judge excellently versed in (among other things) legal theory, legal practice, linguistics, and philosophy of language. Additionally, in its appendices, this article surveys the pragmatic restraints of “implementives” and provides a detailed overview of pragmatic “workability” restraints for both law and fact. -/- (By “sense” the title of this article means not only “meaning conveyed or intended” but also “capacity for effective application of the powers of the mind as a basis for action or response.” See Sense, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2014) “Workable” has the broad meaning discussed in Sections II, IV, and Appendix C of the Article, and "good" is further explored in the section on Eunomia, namesake of the Greek goddess of good order.) -/- Keywords: Pragmatism, Hermeneutic, Truth, Rule of Law, William James, C.S. Peirce, Hilary Putnam, Richard Rorty, Gadamer, Habermas, Derrida, Lon Fuller, H.L.A. Hart, Post-truth, Postmodernism, Trump, Rhetoric, Meaning, Interpretation, Metaphor, Category, Lifeworld, Formalism, Framing, Deconstruction. (shrink)

With insights from philosophy of language and semiotics, this article addresses judicial choices and semantic errors involved in United States v. Stevens, 130 S.Ct. 1577 (2010) (refusing to read “killing” and “wounding” to include cruelty and thus striking down a federal statute outlawing videos of animal cruelty), and Snyder v. Phelps, 131 S.Ct. 1207 (2011) (finding a First Amendment right to picket military funerals and verbally attack parents of dead soldiers as part of purportedly-public expression). -/- This article maintains that (...) a better understanding of semiotics (the theory of signs) exposes the flaws in both decisions and bolsters the arguments of the lone dissenter in both cases, Justice Alito. Such a better understanding of semiotics involves grasping (a) how expression involves signs, (b) how signs work in general, and (c) the differences between three basic kinds of signs (indexes, icons and symbols). This article maintains that the expression involved in Stevens and in Phelps was a type of indexical or quasi-indexical expression that, for reasons similar to those involved in child pornography cases, should have no First Amendment protection. -/- This article also notes shifting interpretive positions in the Court that cry out for reform. Although Chief Justice Roberts uses a textualist approach in his majority opinion striking down the animal cruelty statute in Stevens, his majority opinion in National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012), has no trouble finding a “penalty” a “tax,” upholding the Affordable Care Act, and chastising the dissent for voting to strike down a statute simply because “. . . Congress used the wrong labels.” Id. at 2597. -/- This article attempts to expose such gamesmanship in “textualism” and attempts to lay out a better semiotic path for the Court. It calls for more forthright judicial decision-making in constitutional and statutory interpretation; calls for rejecting mechanical notions of law that conceal judicial choice involved in constitutional and statutory interpretation; and calls for rejecting claims that dictionaries can settle constitutional or statutory interpretation issues without reference to constitutional and statutory goals. -/- Keywords: interpretation, construction, meaning, plain meaning, originalism, original intent, canon, semiotics, signs, signals, symbol, icon, index, signifier, signified, ordinary meaning, freedom of speech, freedom of expression, animal cruelty, first amendment, statutes. (shrink)

This Article explores the interpretation and construction of executive orders using as examples President Trump’s two executive orders captioned “Protecting the Nation From Foreign Terrorist Entry Into the United States” (the “Two Executive Orders”). President Trump issued the Two Executive Orders in the context of (among other things) Candidate Trump’s statements such as: “Islam hates us,” and “[W]e can’t allow people coming into this country who have this hatred.” President Trump subsequently provided further context including his tweet about the second (...) of his Two Executive Orders: “People, the lawyers and the courts can call [the second of the Two Executive Orders] whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” Although President Trump replaced the first of the Two Executive Orders with the second one and although the Supreme Court by orders dated October 10, 2017 and October 24, 2017, vacated and remanded litigation involving the second order on grounds of mootness, the Two Executive Orders remain highly instructive for those who would understand the interpretation and construction of executive orders. This article therefore examines in detail the original speaker's (i.e., President Trump's) intended meaning and effect of the Two Executive Orders. It performs such examination using insights from the semiotic subfield of pragmatics, a semiotic subfield which explores how real-world people actually use, interpret, and construe language in various real-world contexts (including contexts where the issuer of the Two Executive Orders himself has claimed that “Islam hates us” and has tweeted “TRAVEL BAN!”). Using such insights of pragmatics, this Article also explores why reasonable judges thoroughly versed in legal theory, legal practice, and pragmatics should conclude that President Trump unlawfully targeted Muslims in the Two Executive Orders. This Article, among other things, also questions the sensibility of such notions as “facial legitimacy” to the extent such notions suggest text has meaning apart from context. Keywords: executive orders, speaker meaning, interpretation, construction, semiotics, pragmatics, originalism, speech acts, context, facial legitimacy, Constitutionality, First Amendment,Trump v. Int’l Refugee Assistance Project, Scalia, immigration, semantics, original meaning, travel ban, Trump, textualism. (shrink)

Langdellian “science” and its “formalism” ignore ways form permits and even creates freedom of choice. For example, as Wordsworth notes, though the weaver is restricted by what his form of loom can weave, the weaver may nonetheless choose what and how he weaves. Furthermore, the loom creates weaving possibilities that do not exist without it. Such freedom alongside form is often lost on lawyers, judges, and teachers trained primarily in Langdellian redacted appellate cases where “facts” and other framed matters often (...) wrongly appear as simply given. Similarly, in the context of their redacted appellate cases, many current students may only see constraint in IRAC (Issue-Rule-Application-Conclusion) and other thought forms rather than the fastidious freedoms such forms both provide and create. -/- Overlooking such freedoms is not only misleading in itself. It also misses the need to study how such freedoms are and should be exercised. When facts are simply presented as “given” and strategic and other choices go unrecorded and unnoticed in redacted appellate opinions, no thorough analysis of these overlooked subjects can occur. This is extremely troubling since such overlooked subjects are at the very heart of the lawyer’s craft. -/- Attempting to remedy such Langdellian shortcomings, this article explores, among other things, five basic levels of thought and the framing choices in such levels of thought: references, issues, rules, application of rules, and conclusions. Though often merely taken as “given” in redacted appellate opinions, a good grasp of reference assures that parties are in fact talking about the same matter or matters (the “reference”). It also increases the likelihood of ascertaining and properly framing all the relevant “facts” in a manner reasonably and ethically consistent with a client’s real interests. Similarly, focusing on flexibility of issue framing both brings necessary focus on what is important in the reference and, to the extent reasonable and ethical, again increases the likelihood of frames most consistent with a client’s real interests. A good grasp of applicable rules and how to frame and apply them on its face increases the likelihood of representing a client well. A good grasp of conclusions and how to frame and hedge them also does the same. -/- Grasping the multilevel complexities in play at these multiple levels pushes us beyond briefing redacted appellate cases to the much more difficult and stimulating work of exploring and teaching good legal thought at all its levels. Legal writing professors are pioneers in this regard and others in the academy can learn much from them. -/- Keywords: RIRAC, IRAC, CREAC, Reference, Issue, Analysis, Rule, Application, Conclusion, Frame, Framing, Metaphor, Concept, Category, Legal Thought, Legal Analysis, Rhetoric, Langdell, Wordsworth, Form, Formalism, Sonnet, Text. (shrink)

Neil Gorsuch lauds judges who purport to “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be . . . .” It’s hard to see how such a form of Originalism withstands scrutiny. -/- First, using “reasonable reader” understandings rather than speaker meaning turns language and law on their heads. Audiences effectively become (...) the speakers in ordinary speech (since reader or audience meaning prevails), and audiences (and thus the ruled) effectively become the rulers when interpreting law (since audiences’ meaning prevails). -/- Second, since laws look forward to govern conduct, how can best legal practices keep such a backward focus? -/- Third, words (however understood by others at the time “originally” uttered) may or may not (depending on speaker and not reader meaning) signify concepts whose meanings embrace change over time. For example, the word “planet” used by a speaker before the discovery of Uranus and Neptune may or may not include further planets depending upon what the speaker meant by “planet.” (The same applies to the inclusion or exclusion of Pluto had the speaker used the word “planet” after the discovery of Pluto but before its exclusion by current science.) Unlike the “reasonable” reader of Gorsuch’s Originalism as phrased above, speakers run the gamut from reasonable to unreasonable, from informed to uninformed, and from thoughtful to thoughtless. -/- Fourth, to the extent a judge is principally “constrained” by a text or texts (as he may determine), by dictionaries that he chooses, and by “history” as the judge understands it, isn’t judicial activism encouraged rather than restrained? Talk of a “reasonable” reader masks the fact that there can be multiple “reasonable” conclusions of what a reasonable or unreasonable speaker meant. Is a judge not therefore left to pick definitions and applications of terms that accord with the judge’s understandings of history, understandings that may well be colored by the judge’s politics and judicial philosophy? This applies to principles as well as labels for things. Principles are also subject to multiple frames, and their terms are subject to multiple definitions therefore raising the very same questions just raised above. -/- Finally, such Originalism doesn’t merely fail with legal texts. It also fails when applied to other texts (including sacred texts such as the Ten Commandments) and when used to interpret art (such as “Landscape with the Fall of Icarus” often attributed to Bruegel and which inspired such great ekphrasis as Auden’s “Musée Des Beaux Arts”). These further failures underscore the dysfunction of Originalism in Gorsuch's form noted above. -/- Keywords: Originalism, Neil Gorsuch, Text, Textualism, Scalia, Interpretation, Pragmatics, Speaker Meaning, Art, Painting, Bruegel, Auden, Ekphrasis, Icarus, Bible, Ten Commandments, Herod, Declaration of Independence, Abraham Lincoln. (shrink)

Brief reflections in prose and verse on the vital importance of linguistic diversity.

This article explores problems with several definitions of Originalism proposed by Justice Scalia in "Reading Law: The Interpretation of Legal Texts." It begins by looking at Justice Scalia's citation of a possible statement by Queen Anne that Justice Scalia claims in itself justifies Originalism. Queen Anne may have told Sir Christopher Wren that St. Paul's Cathedral was "awful, artificial, and amusing" at a time when those words meant "awe-inspiring, highly artistic, and thought-provoking." Conceding that one must understand how Queen Anne (...) meant these terms, this article shows how this example actually undermines Originalism when applied to on-going rules. It also explores inconsistencies and problems with several definitions of Originalism including Justice Scalia's arbitrary exclusion of technology from the constraints of "original meaning." It further disputes his claim that Originalism ". . .will narrow the range of acceptable judicial decision-making and acceptable argumentation [and that it] will curb -- even reverse -- the tendency of judges to imbue authoritative texts with their own policy preferences." This article maintains that Originalism has the opposite effect. -/- Keywords: originalism, original meaning, Scalia, interpretation, meaning. (shrink)

This article briefly addresses the following questions: Why should we study narrative? Does narrative have a basic overarching form or forms? How does framing drive narrative? How do concepts drive narrative? What can we do when we lack the necessary concepts for the narrative we need to tell? Are there basic storylines that repeat? Are there basic character types that we reuse? Can narrative drive the results of a Supreme Court case? Can narrative drive transactional practice? How does narrative's importance (...) underscore the importance of an education in the humanities? (shrink)

Like others who work with language, many lawyers no doubt appreciate good kennings. However, metaphors also play a much deeper role in thought and law than style, ornament, or verbal virtuosity. As we shall see, metaphors play a necessary role in our categories of thought. As a result, metaphors are a necessary part of thought itself, including legal thought.

"Elements of Neutron Interaction Theory" is a first-year textbook for graduate students in nuclear engineering, dealing with the interactions of neutrons, photons, and charged particles with nuclei, atoms, and electrons. The aim of the book is to present, as simply as possible, those aspects of neutron interaction theory which follow directly from conservation laws and elementary quantum mechanics. It is intended to be understood by anyone who has obtained the equivalent of a bachelor's degree in physics, chemistry, or one of (...) the engineering disciplines. No mathematical background beyond differential equations and elementary vector analysis and no physics background beyond elementary modern physics is assumed. (shrink)

In recent years, labour markets have been characterised by stagnant wages, reduced incomes and growing insecurity supplemented by the ongoing proliferation of outstanding payment obligations at almost all levels of economy and society. We draw upon current debates in social and economic theory to explore the disconnect between the deterioration of late capitalism’s distributive measures and the relative vitality of consumer cultures, suggesting that the latter relies substantially on immaterial, credit-based payment means to bridge the gap between the fundamental fantasy (...) of ‘more and better’ and the decline of material productivity denoted by base rate of profit. We then use this disconnect as a breach-point for an in-depth interdisciplinary discussion of the substantive and ideological function of credit. (shrink)

The study of anarchism as a philosophical, political, and social movement has burgeoned both in the academy and in the global activist community in recent years. Taking advantage of this boom in anarchist scholarship, Nathan J. Jun and Shane Wahl have compiled twenty-six cutting-edge essays on this timely topic in New Perspectives on Anarchism.

Shakespeare's works present intriguing explorations of law and legal theory. They help demonstrate the flaws in command-theory positivism, natural law theory and prediction theory accounts of the law. This is a simultaneously-published abbreviated version of a longer article published in Acta Iuridica Olomucensia in 2010.

In this international and interdisciplinary collection of critical essays, distinguished contributors examine a crucial premise of traditional readings of Plato's dialogues: that Plato's own doctrines and arguments can be read off the statements made in the dialogues by Socrates and other leading characters. The authors argue in general and with reference to specific dialogues, that no character should be taken to be Plato's mouthpiece. This is essential reading for students and scholars of Plato.

This comprehensive Gandhi reader provides an essential new reference for scholars and students of his life and thought. It is the only text available that presents Gandhi's own writings, including excerpts from three of his books—An Autobiography: The Story of My Experiments with Truth, Satyagraha in South Africa, Hind Swaraj —a major pamphlet, Constructive Programme: Its Meaning and Place, and many journal articles and letters, along with a biographical sketch of his life in historical context and recent essays by highly (...) regarded scholars. (shrink)

There are, very broadly speaking, two interpretative approaches to the study of Plato. Let us call the first the “Protestant” approach and the second the “Catholic” approach. According to the first, the fundamental principle of interpretation is sola scriptura, adherence to the texts of the dialogues as the only vehicle providing access to Plato’s philosophy. On this approach, putative evidence for Plato’s thinking drawn from Academic testimony or the indirect tradition is to be either excluded altogether or, if given any (...) evidentiary value, strictly subordinated to the “control” of the dialogues. Thus, the contents of the dialogues always trump testimony. According to the second approach, the dialogues are only .. (shrink)

Anthony de Jasay attempts to demonstrate that public goods can be supplied privately without loss of efficiency, since there may be enough people willing to finance public‐goods production voluntarily, even at the risk of subsidizing free riders, rather than risk that public goods will not be produced at all. Jasay's argument rests on the implausible assumption that the goods in question are completely indivisible. This assumption forces persons interested in having a given public good either to finance it or (...) do without it entirely; they do not have the option of financing smaller quantities or poorer qualities of the good. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Anthony Close THE EMPIRICAL AUTHOR: SALMAN RUSHDIE'S THE SATANIC VERSES HOBBES, comparing the author ofan action to the owner ofgoods, asserts, "And as the right of possession, is called dominion; so the right of doing any action, is called authority" (Leviathan, Book I, chap. 16). My purpose in this essay is to apply this Hobbesian maxim to the relation Author/Text, expanding somewhat Hobbes's notion of authority. I presuppose (...) that in our day-to-day dealings with our fellow men, we envisage each others' acts as exhibiting purpose and commitment, which make them ours in more than the platitudinous sense that we performed them. By virtue of that, they confer on us a privileged, though clearly not unchallengeable, authority in saying what they are and what they are for. Such, in effect, is the position reached by Austin in How to Do Things with Words, and it broadly corresponds to that of various philosophical writings on human action—by Anscombe, Davidson, and Melden.1 To be sure, we may legitimately consider human behavior from other viewpoints (e.g., structuralist, anthropological, psychoanalytical, Marxist) trained on its unconscious presuppositions. Yet, insofar as such theorizing fails to acknowledge the priority of the Hobbesian perspective, it will seem perverse for a reason that has been well put by Charles Taylor. Precisely because history is made up of purposeful activity, Taylor argues, we need to explain historical patterns in a way that is "intelligible in relation to conscious action" even though they may not "issue from conscious action."2 By this criterion much of our modern literary theory is defective. A vivid measure of the deficiency is provided by the furor over Salman Rushdie's TL· Satanic Verses, culminatingin thefatwa pronounced against Philosophy and Literature, © 1990, 14: 248-267 Anthony Close249 him by the Ayatollah Khomeini in February 1989. I take it that for anyone vocationally committed to the practice or study ofliterature and to the cause of freedom of expression, the defense of Rushdie cannot be a matter of indifference. Nor can one be indifferent to the chasm of misunderstanding that separates Rushdie and his apologists from the novel's Muslim opponents. I believe that these two causes—defending Rushdie and bridging the chasm—can be reconciled by offering better explanations ofhis novel in place ofcrude denunciations or, from some non-Muslim quarters, smug and knowing dismissals. Yet, as we shall see, the task of explanation could be considered hamstrung by our modern poetics. I was reminded ofHobbes's textby Rushdie's lucid and cogent defense of his novel in TL· Independent (London, February 4, 1990). Against the accusations that he had deliberately reviled the Islamic faith, he argued as follows. Though TL· Satanic Verses, like many novels that Rushdie esteems, is a work of radical dissent, questioning, and reimagining, it is motivated by a spirit of serious inquiry rather than debunking derision. More particularly, it reflects a determination that underlies all Rushdie's work: "to create a literary language and literary forms in which the experience offormerly-colonised, still-disadvantaged peoples might find full expression." He continues: "It is written from the very experience of uprooting, disjuncture and metamorphosis... that is the migrant condition, and from which, I believe, can be derived a metaphor for all humanity.... [It] celebrates hybridity, impurity, intermingling, the transformation that comes of new and unexpected combinations of human beings, cultures, ideas, politics, movies, songs. It rejoices in mongrelisation and fears the absolutism of the Pure." Note the insistence on how these themes flow direcdy from Rushdie's own experience. Two days after the publication of this article, Harold Pinter gave on Rushdie's behalf a lecture on the relationship of literature to religion and society at the Institute of Contemporary Arts in London. In this lecture, Rushdie articulated a Bakhtinian view of the novelist's function: to dramatize ironically and noncommittally the clash of voices, languages, and ideologies in a world without gods and without traditionsanctioned truth. Rushdie referred specifically, I think, to a species of postmodernist novel which we may dub "palimpsest history";3 the species includes Rushdie's works, García Márquez's One Hundred Years of Solitude, Carlos Fuentes's Terra Nostra... (shrink)

Harold Langsam has recently presented a novel observational account of self-knowledge. I critically discuss this account and argue that it fails to provide a uniform understanding of how we are able to know the contents of our own thoughts.

Throughout the classical period opposition is an increasingly important element of aetiological descriptions and of procedures for regulating inference. Contrary to Lloyd and to structuralist critics, archaic Greek thought is not oppositionally structured. Hesiod's Theogony, in particular, is not oppositionally structured. ;Anaximander is the first of the Ionians to employ a set of opposites, genesis and phthora, in aetiological description. Anaximenes employs a set of opposites, puknosis and araiosis, which describe a continuum on which there are an infinite number (...) of possible physical states. Heracleitus removes his logos from allegiance to any particular set of physical predicates by making the conflict of opposites itself the fundamental principle of the cosmos. ;The identity of opposites which Heracleitus asserts is the problem which motivates the establishment of the conceptual categories which those opposites constitute, but the fragments of Heracleitus do not constitute a logic. ;Parmenides' poem contains both necessary rules for inference, , and, in the path of Truth, the image of an ontology, conceived as a realm on which opposites do not impinge. ;Early Plato follows a double path reminiscent of Parmenides. Particulars are subject to change; forms are unchanging. Particulars receive opposites; forms do not. Forms have opposites; particulars do not. As with Parmenidean scholarship, Platonic scholarship has been confused by the notion that Plato thought any term could be an opposite. This view is a projection of modern logical assumptions which Plato does not share. ;In Aristotle there is not one fourfold classification of opposites but a more adaptive scheme in which Aristotle recognizes different conceptions of opposition as privileged or advantaged with respect to tasks of differentiation in ontology, logic, and epistemology. Logical opposites are fundamental to Aristotelian undertakings in aetiological description and inference. Privation is primary in the former; contradiction in the latter. The traditional classification is most useful in ontology and dialectic. (shrink)

Subjectivity is the awareness human beings have of themselves as individuals who function and are positioned in human society. The model of subjectivity which is applied in practical situations is decisive in determining how subjects are motivated to act. ;The genesis of modern subjectivity can be traced to the philosophy of Rene Descartes, whose famous dictum "je pense, donc je suis" expressed a belief in individual subjects as self-contained entities who were their own arbiters of truth and sources of action. (...) Descartes' notion that subjects are self-defining internal essences which exist outside of history is the foundation of "humanist" models of subjectivity. Jean-Paul Sartre, a founding figure of twentieth-century existentialist philosophy, adapted Descartes' model of the subject as part of the humanist tradition. ;The work of French communist philosopher Louis Althusser, which is based on the work of Karl Marx, serves as the foundation for a "materialist" account of subjectivity which sees human subjects as the determinate products of human history and society. This tradition, exemplified by the "post-Marxist," postmodernist thought of Ernesto Laclau and Chantal Mouffe or the systems theory of Anthony Wilden, leads to an impasse. The postmodernist reliance on psychoanalytic theory shifts the emphasis back to individual subjects. The application of systems and chaos theory, while indicating the complexity of factors which produce subjectivity, does not provide guidance for action. Recovering a notion of agency as concerted action is made possible by a return to a revolutionary socialist conception which sees subjectivity and agency as collective products of social class. ;This trajectory can be traced in selected texts, specifically the television series Twin Peaks, the novels of American author Tom Robbins, and reggae music. The work of David Lynch is symptomatic of how postmodern theories provide insufficient guidance for political action. Tom Robbins writes from an anarchist perspective which also precludes effective intervention strategies. It is the last of these texts, which grew out of the Rastafarian movement, which provides the most effective guidance on how to combine cultural and political work in order to achieve radical social change. (shrink)

My general aim is to clarify the foundational difference between Stephen Jay Gould and Richard Dawkins concerning what biological entities are the units of selection in the process of evolution by natural selection. First, I recapitulate Gould’s central objection to Dawkins’s view that genes are the exclusive units of selection. According to Gould, it is absurd for Dawkins to think that genes are the exclusive units of selection when, after all, genes are not the exclusive interactors: those agents directly engaged (...) with, directly impacted by, environmental pressures. Second, I argue that Gould’s objection still goes through even when we take into consideration Sterelny and Kitcher’s defense of gene selectionism in their admirable paper “The Return of the Gene.” Third, I propose a strategy for defending Dawkins that I believe obviates Gould’s objection. Drawing upon Elisabeth Lloyd’s careful taxonomy of the various understandings of the unit of selection at play in the philosophy of biology literature, my proposal involves realizing that Dawkins endorses a different understanding of the unit of selection than Gould holds him to, an understanding that does not require genes to be the exclusive interactors. (shrink)

On one hand Auden appears the most cerebral of poets. It is said that when he arrived at school, aged eight, he professed himself excited to study the different psychological types, and the cryptic verse that was to emerge over a decade later bears the scars of his reading, psychological or otherwise, as clearly as the relentlessly analytical Dichtung und Wahrheit and other late works.Absorbing and repurposing philosophical, psychological, religious, and scientific works was an essential part of his artistic strategy, (...) and led to credible accusations of plagiarism on a number of occasions.And just as his collaborators and friends mocked the speed with which he integrated ideas— C. Day Lewis said the dogmas of one year were the heresies of the next—they also downplayed his access to the non-intellectual side of life. Robert Craft, for example, Stravinsky’s biographer and close friend, said the senses “seemed to be of negligible importance” to Auden, whose eating and drinking habits appeared barbaric next to the composer’s fastidious and urbane manners. To Craft he also seemed “purblind to painting,” and “more concerned with the virtues of gardening than with the beauty of flowers.”Such was the poet’s indifference to physical works of art that Anthony Hecht has speculated that Auden’s much-anthologized poem, “Musee des Beaux Arts,” was based on reading about the poem in an art guidebook rather than actually seeing it in person. At the same time, however, Auden became one of the staunchest defenders of the importance of the body, and the necessity of accounting for its existence in any philosophical or religious scheme. Not since Augustine has anyone written so consistently and vehemently against the Manicheans and their dualist conception of the cosmos, which Auden saw prefigured in Plato. These attacks puzzled contemporaries and commentators who, with some sense, wondered who identified as a Manichean in the twentieth century. Used to either the exalted magnification of the body in Lawrence or the scrupulous distaste of Eliot, Auden’s propensity to uncritically celebrate the mundane existence of the body only added to the notion that after his Christian conversion made him more accessible but less relevant. The poet who seemed to have retreated into himself intellectually, abandoning the rhetorically eccentric and politically flamboyant elements of his work in favor of a moderate, gently humorous tone best suited to the verse essay or personal ode, also seemed to have retreated physically into himself, exchanging trenchant diagnoses of “England, this country of ours where nobody is well” for the creature comforts of poems like “About the House” and “Talking to Myself. My thesis explores this change in Auden's work, and his developing conception of the body/mind relationship. (shrink)

Short Arguments: Some General Rules Arguments begin by marshaling reasons and organizing them in a clear and fair way. Chapter I offers general rules for ...

Taking a refreshingly hands-on approach to introductory ethics, A 21st Century Ethical Toolbox provides students with a set of tools to help them understand and make a constructive difference in real-life moral controversies. Thoroughly optimistic, it invites students to approach ethical issues with a reconstructive intent, making room for more and better options than the traditional "pro" and "con" positions that have grown up around tough problems like abortion and animal rights. Ideal for introductory and applied ethics courses, this unique (...) text does not treat ethics as a purely academic, historical, or theoretical subject, but as a wide-ranging and ongoing set of challenges that calls for multiple and interwoven kinds of intelligence. It covers the skills that are most vital to making real progress in ethics, including paying careful attention to the values at stake on all sides of an issue; looking for creative opportunities within difficult problems; critical-thinking skills such as defining key terms and making sure to judge similar cases alike; and learning how to engage in constructive dialogue. Instructors can readily use the experiential and applied activities inspired by this "toolbox" of practical skills to design an interactive and collaborative ethics course. Students can carry these essential skills directly from this book into such projects as campaigning for environmental awareness and staffing local homeless shelters. In addition to his own discussion, Weston includes gripping and provocative short selections from essayists, activists, and philosophers, and also cites his own students. Extensive "Exercises and Notes" sections end each chapter, and a detailed appendix offers instructors advice on how to use the Toolbox in the classroom. (shrink)

A Practical Companion to Ethics, Fourth Edition, is a concise and accessible introduction to the basic attitudes and skills that make ethics work, like thinking for oneself, creative and integrative problem-solving, and keeping an open mind. This unique volume illuminates the broad kinds of practical intelligence required in moral judgment, complementing the narrower theoretical considerations that often dominate ethics courses. The optimistic tone and brisk pace of the narrative provide an entertaining and intelligent guide to "everyday" morality. The fourth edition (...) features a new chapter on ethical theories; significantly revised and expanded chapters on conflicts of value and creative problem- solving in ethics; and a new concluding chapter on "Making a Difference, " which explains how students can incorporate ethical thinking and practice into their daily lives. (shrink)

This is a modern, annotated translation of antiquity's only extant commentary on Plato's moral and political dialogue Gorgias , in which the author defends ancient Greek philosophy and culture at a time when Christianity has almost replaced it. The first translation into any modern language of a central work in Platonic studies is accompanied by annotations which guide the reader in understanding the obscurities of the text, an introduction to the main issues raised by it, and a bibliography of the (...) modern literature. (shrink)