This article argues that legal precedents do not create rules, but rather create a special type of reason in favour of a decision in later cases. Precedents are often argued to be analogous to statutes in their law-creating function, but the common law practice of distinguishing is difficult to reconcile with orthodox accounts of the function of rules. Instead, a precedent amounts to a decision on the balance of reasons in the case before the precedent court, and later courts are (...) required to decide cases on the basis that the earlier decision was correctly decided. (shrink)

It is a commonplace that coercion forms part of the nature of law: Law is inherently coercive. But how well founded is this claim, and what would it mean for coercion to be part of the of law? This article suggests that the claim is grounded in our current conception of law. The main focus of the article, however, is upon two major lines of argument that attempt to establish a link between law and coercion: one based upon the laws (...) normativity. It argues that the claim that law is necessarily coercive because it must be efficacious is mistakens normativity is inherently linked to coercion contains an important truths claim to authority encompasses the right to authorize the use of coercion. (shrink)

This article discusses the nature of persuasive authorities in the common law, and argues that many of them are best understood in terms of their (being regarded) as having theoretical rather than practical authorities for the courts that cite them. The contrast between theoretical and practical authority is examined at length in order to support the view that the treatment of many persuasive authorities by courts is more consistent with this view. Finally, it is argued that if persuasive authorities are (...) best understood as theoretical authorities, this raises difficulties for both positivistic and interpretivist theories of law. (shrink)

This paper discusses the puzzle of blackmail, i.e. the way in which the threat of an otherwise legally permissible action can in some cases constitute blackmail. It argues that the key to understanding blackmail is in terms of coercion and threats, and the effect such threats have on the validity of a victim’s consent. The nature of coercion and of coercive threats is considered in detail to support the thesis that threats are prima facie impermissible, though often justified all-things-considered. The (...) puzzle of blackmail arises due to the fact that the law rarely has regard to an agent’s motives in acting, whereas this is the focus of the puzzling cases. (shrink)

This article presents a philosophical account of the nature of crime. It argues that the criminal law contains both fault-based crimes and strict liability offences, and that these two represent different paradigms of liability. It goes on to argue that the gist of fault-based crimes lies in their being public wrongs, not (as is often thought) because they wrong the public, but because the public is responsible for punishing them, i.e. because they merit state punishment. What makes wrongs deserving of (...) punishment is that they are seriously blameworthy, inasmuch as they evince a disrespect for the values violated. But they only merit state punishment when they violate important values, not simply due to the well-known pragmatic considerations against the use of the criminal law, but to the intrinsic expressive force of criminal conviction. Finally, the analysis of fault-based crimes points to a role for strict liability in regulating actions that are not seriously blameworthy but do increase the risk of values being damaged. (shrink)

This paper raises four queries about Simester’s defective engagement with reason account of culpability found in his Fundamentals of Criminal Law: (1) the characterisation of the account in terms of moral ‘vices’; (2) the basis for identifying a vice as a ‘moral’ vice; (3) what is involved in an agent manifesting ‘insufficient care and concern’ for the interests of others; and (4) whether the account is an account of culpability generally, or is instead an account of criminal culpability, i.e., the (...) type of culpability necessary for criminal conviction. (shrink)

Precedent is a central feature of legal practice, requiring courts to follow decisions reached in earlier cases, thereby transforming the decisions in individual cases into a source of law. This article examines two major questions associated with precedent: (a) how to characterise the way that precedent operates as a source of law; and (b) how to justify the requirement that courts follow earlier decisions regardless of the merits of those decisions. Precedents are often thought to create general legal rules, but (...) it is controversial whether this is the best way to understand their role in legal reasoning. Equally, it is unclear that the most common justifications for precedent unequivocally vindicate the practice. (shrink)

This chapter contains sections titled: Coercion Law References.

Proponents of strict rule-based theories of judicial reasoning in common-law systems have offered a number of criticisms of analogical alternatives. I explain these criticisms and show that at best they apply equally well to rule-based theories. Further, I show how the analogical theories explain a feature of judicial common-law reasoningthat rule-based theories ignore. Finally, I show that reason-based, analogical theories of common-law judicial reasoning, such as those offered by John Horty and Grant Lamond, offer especially strong rejoinders to (...) the rule-theorist objections and persuasive accounts of distinguishing. (shrink)

This paper describes one way in which a precise reason model of precedent could be developed, based on Grant Lamond’s general idea that a later court is constrained to reach a decision that is consistent an earlier court’s assessment of the balance of reasons. The account provided here has the additional advantage of showing how this reason model can be reconciled with the traditional idea that precedential constraint involves rules, as long as these rules are taken to be (...) defeasible. (shrink)

More than 50 years after it was first published, The Concept of Law remains the most important work of legal philosophy in the English-speaking world. In this volume, written for both students and specialists, 13 leading scholars look afresh at Hart's great book. Unique in format, the volume proceeds sequentially through all the main ideas in The Concept of Law: each contributor addresses a single chapter of Hart's book, critically discussing its arguments in light of subsequent developments in the field. (...) Four concluding essays assess the continued relevance for jurisprudence of the 'persistent questions' identified by Hart at the beginning of The Concept of Law. The collection also includes Hart's 'Answers to Eight Questions', written in 1988 and never before published in English. Contributors include Timothy Endicott, Richard HS Tur, Pavlos Eleftheriadis, John Gardner, Grant Lamond, Nicos Stavropoulos, Leslie Green, John Tasioulas, Jeremy Waldron, John Finnis, Frederick Schauer, Pierluigi Chiassoni and Nicola Lacey. (shrink)

I defend one way of solving the Impermissibility Problem—that is, the problem that on moralized approaches to coercion, coerciveness and permissibility are mutually exclusive. This brings up intuitive difficulties for cases such as taxation, which seem to be both coercive and permissible. I gloss three popular theories of coercion—the moralized baseline, nonmoralized baseline, and enforcement approaches—and conclude that only the nonmoralized baseline approach clearly solves the problem. However, Robert Nozick’s famous “slave case” raises another serious issue for the nonmoralized baseline (...) approach. So, in order to solve both the slave case and the Impermissibility Problem, I draw on Grant Lamond’s discussion of the coerciveness of law to propose the pro tanto wrong approach. On this approach, coercion is not impermissible simpliciter, but requires some sort of special justification. The pro tanto wrong approach is moralized, but on it, moralization comes in coercion’s need for justification, not in whether it is, in fact, justified. Thus impermissibility is neither necessary nor sufficient for coerciveness, and the Impermissibility Problem is avoided. I conclude that solving the problem in this way is desirable because it preserves a core belief of liberalism: certain acts, including taxation, may be both coercive and permissible. (shrink)

Psychopaths are often regarded as a scourge of contemporary society and, as such, are the focus of much public vilification and outrage. But, arguably, psychopaths are both sinned against as well as sinners. If that is true, then their status as the victims of abusive subcultures partially mitigates their moral responsibility for the harms they cause. We argue, from the neuroethics of psychopathy and antisocial personality disorder (ASPD), that communities have a moral obligation to psychopaths as well as a case (...) against them. A reflection on the genesis and developmental epidemiology of psychopathy reveals an individualist, attribution-type error evident in much Western psychological and legal thinking—an error that obscures important moral truths about psychopaths. The resulting analysis makes us reconsider the distinction between disorders and moral failings and the ethical significance of the biological or neurocognitive mechanisms underpinning psychopathy. We claim that casting aside the deficit model (based on the presupposition that psychopaths are intrinsically unlike the rest of us) in favor of a relational and holistic view of personality potentiates a more informed and inclusive set of ethical, forensic, and therapeutic attitudes. (shrink)

The human brain is subjective and reflects the life of a being-in-the-world-with-others whose identity reflects that complex engaged reality. Human subjectivity is shaped and in-formed (formed by inner processes) that are adapted to the human life-world and embody meaning and the relatedness of a human being. Questions of identity relate to this complex and dynamic reality to reflect the fact that biology, human ecology, culture, and one's historic-political situation are inscribed in one's neural network and have configured its architecture so (...) that it is a unique and irreplaceable phenomenon. So much is a human individual a relational being whose own understanding and ownership of his or her life is both situated and distinctive that neurophilosophical conceptions of identity and human activity that neglect these features of our being are quite inadequate to ground a robust neuroethics. (shrink)

This book uses a neo-Aristotelian framework to examine human subjectivity as an embodied being. It examines the varieties of reductionism that affect philosophical writing about human origins and identity, and explores the nature of rational subjectivity as emergent from our neurobiological constitution. This allows a consideration of the effect of neurological interventions such as psychosurgery, neuroimplantation, and the promise of cyborgs on the image of the human. It then examines multiple personality disorder and its implications for narrative theories of the (...) self, and explores the idea of human spirituality as an essential aspect of embodied human subjectivity. (shrink)

The first edition of The Mind and its Discontents was a powerful analysis of how, as a society, we view mental illness, looking beyond just biological models of mental pathologies. In the ten years since, there has been growing interest in the philosophy of psychiatry, and a new edition of this text is more timely and important than ever.

Concepts are basic elements of thought. Piaget has a conception of the nature of concepts as informational or computational operations performed in an inner milieu and enabling the child to understand the world in which it lives and acts. Concepts are, however, not merely logico?mathematical but are also conceptually linked to the mastery of language which itself involves the appropriate use of words in social and interpersonal settings. In the light of Vygotsky's work on the social and interactive nature of (...) children's thinking and the nature of language as an essentially public currency of rule?governed signs, we are led to reconstrue conceptual mastery as the acquisition of an interactive and interpersonal repertoire of tools which introduces the child to the world of those who educate it. In this way we come to see the elements of mind as constitutively involving that activity in which the determinants of meaning constrain and direct the child's linguistic development. (shrink)

Informed consent is the practical expression of the doctrine of autonomy. But the very idea of autonomy and conscious free choice is undercut by the view that human beings react as their unconscious brain centres dictate, depending on factors that may or may not be under rational control and reflection. This worry is, however, based on a faulty model of human autonomy and consciousness and needs close neurophilosophical scrutiny. A critique of the ethics implied by the model takes us towards (...) a 'care of the self' view of autonomy and the subject's attunement to the truth as the crux of reasoning rather than the inner mental/neural state views of autonomy and human choice on offer at present. (shrink)

ABSTRACT There are a number of arguments that purport to show, in general terms, that there is no difference between killing and letting die. These are used to justify active euthanasia on the basis of the reasons given for allowing patients to die. I argue that the general and abstract arguments fail to take account of the complex and particular situations which are found in the care of those with terminal illness. When in such situations, there are perceptions and intuitions (...) available that do not easily find propositional form but lead most of those whose practice is in the care of the dying to resist active euthanasia. I make a plea for their intuitions to be heeded above the sterile voice of abstract premises and arguments by examining the completeness of the outline form of the pro‐euthanasia argument. In doing so, I make use of Nussbaum's discussion of moral perception and general claims to be found in the literature of moral particularism. (shrink)

Niche construction theory concerns how organisms can change selection pressures by altering the feature–factor relationship between themselves and their environment. These alterations are standardly understood to be brought about through two kinds of organism–environment interaction: perturbative and relocational niche construction. We argue that a reconceptualization is needed on the grounds that if a niche is understood as the feature–factor relationship, then there are three fundamental ways in which organisms can engage in niche construction: constitutive, relational, and external niche construction. We (...) further motivate our reconceptualization by showing some examples of organismic activities that fall outside of the current categorization of niche construction, but nonetheless should be included. We end by discussing two objections to niche construction and show how our reconceptualization helps to undercut these objections. 1Introduction2Niche Construction Theory 2.1The standard account of niche construction2.2Two problems with the standard account of niche construction3Three Kinds of Niche Construction 3.1Constitutive niche construction3.2Relational niche construction3.3External niche construction4Conceptual Improvement on Niche Construction Theory 4.1Constitutive niche construction4.2Relational niche construction4.3External niche construction5The Status of Niche Construction Theory within Evolutionary Theory 5.1Is niche construction a helpful addition to evolutionary theory?5.2Is niche construction an evolutionary process?6Conclusion. (shrink)

The ability to feel pain is a property of human beings that seems to be based entirely in our biological natures and to place us squarely within the animal kingdom. Yet the experience of pain is often used as an example of a mental attribute with qualitative properties that defeat attempts to identify mental events with physiological mechanisms. I will argue that neurophysiology and psychology help to explain the interwoven biological and subjective features of pain and recommend a view of (...) pain which differs in important respects from the one most commonly accepted. (shrink)

Since the time of Hippocrates, medical science sought to develop a practice based on "knowledge rather than opinion". However, in the light of recent alternative approaches to healing and a philosophy of science that, through thinkers like Kuhn, Rorty, and Foucault, is critical of claims to objective truth, we must reappraise the way in which medical interventions can be based on proven pathophysiological knowledge rather than opinion. Developing insights in Foucault, Lacan, and Wittgenstein, this essay argues for a recovery of (...) the Aristotelian idea of a techne, where there is a dynamic interplay between praxis and conceptualization. The result is a post-Kuhnian epistemology for medical science that recognizes the evaluative dimension of knowledge, but that also looks to a Platonic conception of the good as the ultimate constraint on human thought, thus avoiding the radically self-contained accounts of truth found in some post-modern thinkers. Keywords: normal science, power, truth, virtue CiteULike Connotea Del.icio.us What's this? (shrink)

The propensity interpretation of fitness (PIF) is commonly taken to be subject to a set of simple counterexamples. We argue that three of the most important of these are not counterexamples to the PIF itself, but only to the traditional mathematical model of this propensity: fitness as expected number of offspring. They fail to demonstrate that a new mathematical model of the PIF could not succeed where this older model fails. We then propose a new formalization of the PIF that (...) avoids these (and other) counterexamples. By producing a counterexample-free model of the PIF, we call into question one of the primary motivations for adopting the statisticalist interpretation of fitness. In addition, this new model has the benefit of being more closely allied with contemporary mathematical biology than the traditional model of the PIF. (shrink)

The journey metaphor used by Nie and colleagues (2016) can be analyzed in terms of the way in which health care professionals can support well-being and attend to the aspects of illness that often...

Free will seems to be part of the romantic echo of a world view which predates scientific psychology and, in particular, cognitive neuroscience. Findings in cognitive neuroscience seem to indicate that some form of physicalist determinism about human behavior is correct. However, when we look more closely we find that physical determinism based on the view that brain events cause mental events is problematic and that the data which are taken to support that view, do nothing of the kind. In (...) fact that view meets some substantial objections which turn on the role of the contents of our thoughts and experiences in explaining our behavior. When we look at mental or psychological content we find it is governed by rules and not just causal laws. Rule-following is an activity which invokes the role of the thinker as rational agent and this is not a causal type of explanation. The fact that the thinker as agent is important means that when we invoke the way that a subject thinks about the world, we conceive of that subject as located in a socio–cultural context. This in turn requires that we recognize an explanatory circle according to which neither brain science nor social science can claim priority in explaining human behavior and it follows that, for the purposes of psychological explanation and the understanding of the brain as an organ subserving a system of representation, we are bound to regard human beings as reasoning beings who exert some control over their own behavior and not just as physical systems. This defeats the causal determinist position. (shrink)

Patients with covert awareness who present as being vegetative raise the question of moral status and clinical decisions about those who have suffered major brain injuries. When the idea of moral s...

This study examines whether corporate social responsibility performance is associated with corporate tax avoidance. Employing a matched sample of 434 firm-year observations from the Kinder, Lydenberg, and Domini database over the period 2003–2009, our logit regression results show that the higher the level of CSR performance of a firm, the lower the likelihood of tax avoidance. Our results indicate that more socially responsible firms are likely to display less tax avoidance. Finally, the results from our additional analysis show that the (...) CSR categories community relations and diversity represent particularly important elements of CSR performance that reduce tax avoidance. (shrink)

The idea of freedom of the will seems to conflict with the principle of causal efficacy implicit in many theories of mind. The conflict is normally resolved within a compatibilist view whereby the desires and beliefs of the agent, replete with a respectable if yet to be elucidated causal pedigree, are taken to be the basis of individual freedom. The present view is an alternative which erects mental content on a framework of rule following and then argues that rule‐following is (...) conceptually distinct from causally produced activity. The normative aspect of rule‐following defies reduction to descriptive or dispositional terms. According to this view we cannot get beyond the agent as a self‐determining rational individual in formulating a theory of mind and action. The theory is neo‐Kantian in that it identifies rules or conceptions of laws as central in human thought. It, follows Wittgenstein's treatment of rule‐following and generates a plausible (but non‐causal) account of mental explanation and weakness of the will. (shrink)

Are hierarchical arrangements in the workplace, including the employer-employee relationship, consistent with the ideal of relating to one another as moral equals? With this question at its core, this volume of essays by leading moral and political philosophers explores ideas about justice in the workplace, contributing to both political philosophy and business ethics. Relational egalitarians propose that the ideal of equality is primarily an ideal of social relationships and view the equality of social relationships as having priority over the distributive (...) arrangements. Yet contemporary workplaces are characterized by hierarchical employer-employee relationships. The essays push discussions of the relational egalitarian tradition in new directions, helping to show its promise and its limits. They address pressing concerns at a time of widening inequality and rapid changes in the nature of work. (shrink)

Consciousness and its relation to the unconscious mind have long been debated in philosophy. I develop the thesis that consciousness and its contents reflect the highest elaboration of a set of abilities to respond to the environment realized in more primitive organisms and brain circuits. The contents of the states lesser than consciousness are, however, intrinsically dubious and indeterminate as it is the role of the discursive skills we use to construct conscious contents that lends articulation and clarity to the (...) mental acts which cumulatively make up our mental lives. I lay out a tripartite structure for the formation of mind in which the ongoing interaction between brain and world, the formative effect of socio-cultural context and the self production of a relatively coherent narrative all play an important part in making a mind. The latter two influences clearly transcend biological science and suggest that human minds have features which broadly align with certain Freudian insights but do not support the reification of the causally structured unconscious that Freud envisaged. (shrink)

Philosophical accounts of thought crucially involve an array of abilities to identify general properties or features of the world (corresponding to concepts) and objects that instantiate those general properties. Abilities of both types can be grounded in a naturalistic account of the usefulness of cognitive structures in adaptive behaviour. Language enhances these abilities by multiplying the experience bases giving rise to them and helping to overcome subjective biases.

The problematic features of the cognitive function of patients with brain damage are often taken to indicate that such persons have split or dual consciousness. An intentional or cognitive theory of consciousness which focuses on the structure and contents of conscious experience makes this thesis look quite unattractive. Consciousness is active and directed toward objects and in the human case it shows an internally reflective structure based on the abilities required to grasp and use concepts. On this view, consciousness is (...) a way of referring to the active, integrative, conceptualizing activity of a human thinker in a world of other objects and persons. When we look at consciousness this way and re-examine, in the light of that analysis, the performance of split brain patients, one sees such persons as individuals afflicted with internal difficulties in their information processing capacities but neither as split consciousnesses nor as split minds. (shrink)

The two commentators have examined and illuminated different aspects of the analysis of delusions that we have offered. Their discussions both raise points that clarify that analysis in helpful ways. Richard Bentall (2014) makes the telling point that distinguishing the mental phenomena that count as delusions is not always straightforward and that, at the margins, there is a perennial problem with patterns of thought that seem to fall outside the realm of shared meanings that most of us derive from our (...) experiences. The problem is evident in certain marginal conditions that come to psychiatric attention, like conversion reactions, body dysmorphic disorder, anorexia, and the many obsessions or strained .. (shrink)