Legislation in Modernity is self-legislation: legislation by a collective self. I argue that it can be formally characterised as a first-person plural intention, featuring an index ‘we’ at four different positions: the originator of the speech act expressing the intention, the subject of the intention expressed, the agent of the action intended, and the beneficiaries of the action to be performed. I carve out these four positions or ‘voices’ of the first person inlegislation, summarising them in an analytical scheme [LEX].But (...) self-legislation presupposes self-inclusion. Thus, it constitutes a boundary between the plural self and its alien. Taking my cue from Waldenfels’ explorations of responsiveness to ‘the alien,’ I ask how and why [LEX] responds to the classical appeal of justice: ‘to give everyonehis or her due.’ What does it mean to say that a self-enclosed ‘we’ is the agent of this giving? I will argue that the boundary constituted by this enclosure is possible only if it is imagined to be traversable.Throughout the argument, my main concern is with the question in what sense and to what extent a legal order requires unity. (shrink)

A rule of recognition for a legal order L seems utterly circular if it refers to behaviour of “officials.” For it takes a rule of recognition to identify who, for L, counts as an official and who does not. I will argue that a Kelsenian account of legal authority can solve the aporia, provided that we accept a, perhaps unorthodox, re‐interpretation of Kelsen's norm theory and his idea of the Grundnorm. I submit that we should learn to see it as (...) the vanishing point rather than the final basis of validity in a legal order. To prepare the ground for this proposal, I will briefly explore the claim to authority that is characteristic of politics. Then I sketch a multi‐layered canonical form of the legal norm, including their “empowering” character (Paulson) in terms of performative operators. I show how it leads to a “perspectival” account of the basic norm. In conclusion, I briefly point to the example of sovereignty and acquis communautair in international law to illustrate this view. (shrink)

Responsibility disappears into the background of private law as it deals with imputation of liability. Fitness to be held liable is determined by normative viewpoints different from moral ones, in particular by convictions on how society ought to be organized so as to avoid or end conflict between private citizens. Modes of discursive control are geared to making authoritative decisions in view of the same end, and corporate agency is created, restricted or enlarged to undercut or to impose individual liability.

In the Social Contract Rousseau gives what could be called a philosophical rule of recognition for law in Modernity: a law is law if and only if 'the whole people rules over the whole people'. Thus, he defines self-legislation as, at bottom, collective intentional action. I will first map out the speech act structure [LEX] underlying self-legislation on this account. In particular, I argue for a first person plural counterpart of the reflexive structure inherent to intentions generally: the notion of (...) a collective self. Then I take issue with Bratman's analysis of shared intentional activity in terms of mutuality, submitting that it misses out on the specifically political presupposition involved in 'doing something together'. I will show why 'mutuality' requires representation of the unity of a polity, and how this representation can take form without either external authority or mutual responsiveness. (shrink)

This volume examines the problems of legal and linguistic diversity in the EU legal system. In a union of 27 member states, with 23 different languages, how can the coherence of EU law be guaranteed? Is there a common understanding between lawyers from different national backgrounds as to the meaning and domestic application of EU law? The volume addresses these central questions from a range of theoretical and practical perspectives.

The core of Kelsen's strong views onauthority emerging from his concept of law is this:Authority of law, authority in law andauthority about law are one and the same thing.The conceptual problems suggested by these threedifferent prepositions must and can be solved in onefell swoop. Kelsen's core view will first be probed bygiving an account of what is a promising approachoffered in a fairly early text, Das Problem derSouveränität, namely, what it means to`set' or `posit' the law. Inevitably, this leadsto an (...) interpretation of the Grundnorm, one thatintends to accommodate as many Kelsenian emphases aspossible. The Grundnorm will be presented as ashield against hypostatising authority. From there,some characteristics will be inferred of the type ofauthority that arises from Kelsen's account of legalknowledge, which will be called, somewhat polemically,authority without an author. (shrink)

This issue is a special investigation into phenomenology of law through the thought of Bernard Waldenfels. Waldenfels, who is presently emeritus professor of philosophy at Ruhr Universität, Bochum, has made a name for himself in his own research and publications on the nexus surrounding the other as non-phenomenon, language as response, and the fissures of corporeality.Along side his expansive introduction and own separate article, guest editor Bert van Roermund has collected together six outstanding contributions to this ‘Waldenfeldian’ phenomenology (...) of law.Waldenfels himself kicks of this number with an original article outlining his conception of the legal order within a phenomenology of the other. Arguing that the legal order, like all orders, must have its own particular ‘outside’ or ‘unsaid,’ he investigates the critical perspectives that thus emerge.Then, David Janssens takes up Waldenfels’ treatment of Plato, which Janssens approaches through a Socratic investigation into the aporias at the foundation of the Platonic legal order. Waldenfels’ Plato seems rather Socratic in his confrontation of the reader with alterity.Next, William Conklin offers an in-depth investigation into the question as to how can human rights be considered universal by the very tribunals that also grant nations the right to define those who may legally be considered persons? Waldenfels’s notion of territorial structure offers its apparatus to Conklin’s substantial critique.Petra Gehring goes into the phenomenological theory of law, looking the ability of the law as an order to respond to claims of the alien. Claiming that law in fact is unable to respond, Gehring argues that phenomenology should legal phenomena critically as a problem of order within the double nature of what Waldenfels calls Anspruch and Antwort.Hans Lindahl analyzes the spatio-temporal borders of the European Union to lay bare the genesis of the Community’s legal order. Lindahl reveals this genesis to embody Waldenfels’ notion of the “chiasm of strangeness,” wherein the foundation of a Heimwelt simultaneously generates a Fremdwelt, and thus questions the very ability of Europe to be its own place.Finally, guest-editor Bert van Roermund supplements his introduction with yet another original contribution arguing that modern legislation is self-legislation. Attempting to identify the different voices comprising this self in an analytical scheme he terms [LEX], van Roermund borrows from Waldenfel’s notion of response and alterity in his analysis of how this structure responds to the classical notion of justice for every subject. (shrink)

Sovereignty and representation are the two concepts that legal theory is quick to regard as redundant in any account of legal authority. Sovereignty is alleged to be at odds with both the facts and the values of political pluralism; representation is, at most, a provisional substitute for participation in supra- and infra-national legal development. Antonio Negri, however, analyses sovereignty and representation as the two, closely linked, conceptual devices by which a legal order neutralizes constitutive political power. He argues that constitutionalism (...) and institutionalism are but the contemporary guises of these traditional notions and advocates openness for the multifarious initiatives of 'the multitude' to create new societal structures. This article argues that Negri is right in his critique of, in particular, institutionalism, but that he is wrong in thinking that Lefort's position can be reduced to its simple version. In the background of Lefort's theory we should see the political analogon of Merleau-Ponty's celebrated distinction between parole parlante and parole parlée. Negri himself appears unable to avoid the appeal to questionable referents of sovereignty and representation. (shrink)

This paper reflects on the idea of ‘visualization’ of legal rules as part of an account of rule following in action. Presenting an alternative to Van Schooten’s (Jurisprudence and communication. Deborah Charles, Liverpool, 2012) account of interpretation, I first distinguish between two modes of interpretation: rehearsing and discursive. I argue that the former is the more basic one, relating to our respecting sources, rather than noticing signs, in action. In other (Wittgensteinian) words, we have to understand how we take guidance (...) from rules. This account can profit from an analysis of what ‘seeing’ amounts to. Taking my cue from Merleau-Ponty, I point to the intertwinement between agent and world in seeing, in rule-following, and eventually in legal rule-following. The proof of the pudding is an alternative account of the time-honoured paradigm of legal interpretation: Hart’s ‘no vehicles in the park’. I show how this example is predicated on detecting ‘depth-clues’ in a rule, which allow an agent to correlate his vantage point to a vanishing point of a rule. The example illustrates a key-feature of rule following: reflexivity. I cannot follow a rule unless I project myself into its picture. (shrink)

Making a first sketch of philosophical issues arising from European Community law I want to present a series of more or less obvious, and more or less interrelated dilemmas, or even 'double binds'. Deepening the community becomes incompatible with widening membership. National states seem both necessary for and obstructive in articulating transnational problems. The more democracy is needed as a warrant for the public exercise of political power in Europe, the more the very concept of democracy on a European scale (...) evades understanding. European unity presupposes a unifying rule of law, while member states have radically different conceptions of this principle. Even the very core of European integration, the common market, is subject to two conflicting and, indeed, incompatible doctrines of competition. In explaining the nature of each dilemma I will try to take my cue from the Maastricht Treaty wherever this seems suitable. Then I will elaborate on the jurisprudential problems involved in it. Finally, each section will be closed by an attempt to state the nature of these problems in philosophical terms. (shrink)

In this paper Section 1 distinguishes between two modes of interpreting legal rules: rehearsal and discourse, arguing that the former takes priority over the latter in law, as in many other contexts. Section 2 offers two arguments that following a legal rule in the rehearsing mode presents a riddle. The first argument develops from law, and submits that legal rules do not tell us anything, because they are tautological. The second one develops from philosophy (Wittgenstein's later works), confronting us with (...) the paradox that incompatible courses of action may be derived from any rule. My solution presents a theory of rules as icons (Section 3). I use “icon” rather than “picture,” partly to avoid confusion with what is known among philosophers as “the picture theory of meaning.” Interpretation in the rehearsing mode hinges on imagination: imagining oneself in the space of reasons for action rather than reasoning oneself. In this act of imagination, we project ourselves into the rule in ways that are similar to the way we grasp the sense of paintings, music, stories, or poems. Finally (Section 4) I will defend the position that my view solves the puzzles in the second section, by arguing (a) that it is a better account of what Wittgenstein wrote than two competing theories (intuitionism and conventionalism), and (b) that it provides a more satisfactory account of how lawyers deal with legal rules in actual practice. (shrink)

The French Code civil , including the tradition of legal practice and scholarship it stands for, is the child of two parents: Enlightenment and Restoration. They came together in the person of Jean Etienne Marie Portalis (1746-1807), who was the main drafter of the code under Napoleon. I want to investigate which line of philosophical argument he followed in uniting the two and critically assess the value of this argumentation. In section 1 I briefly sketch the codification of civil law (...) in the (post-)revolutionary setting of the time, as well as Portalis’ philosophical background. Section 2 turns to the principled and wide-ranging discourse he delivered at the occasion of the formal presentation of the draft civil code to the legislature. This discourse, in turn, found its deeper roots in an extensive treatise that he wrote prior to the former, on the use and abuse of reason in times of Enlightenment (Section 3). I will focus, in particular, on the twin concepts of knowledge (section 4) and nature (section 5) in this treatise. From this vantage point, section 6 analyzes the eclectic way in which Portalis uses his philosophical godfathers Montesquieu and Rousseau, while section 7 shows why his preoccupation with the protection of established property rights can explain such eclecticism. Section 8 takes stock and submits that at least one of Portalis’ arguments presents a real challenge to Enlightenment philosophy up until the present day. (shrink)

Although the principle of informed consent is well established and its importance widely acknowledged, it has met with criticism for decades. Doubts have been raised for a number of different reasons. In particular, empirical data show that people regularly fail to reproduce the information provided to them. Many critics agree, therefore, that the received concept of informed consent is no more than a myth. Strategies to overcome this problem often rest on a flawed concept of informed consent. In this paper, (...) it is suggested that informed consent is a communicative act between two persons. The challenge is to elucidate the norms and constraints for successfully performing such a communicative act. The view developed here has major consequences with regard to the standards for information disclosure as well as for the general scope of informed consent. (shrink)

Some common explanations of issue polarization and echo chambers rely on social or cognitive mechanisms of exclusion. Accordingly, suggested interventions like “be more open-minded” target these mechanisms: avoid epistemic bubbles and don’t discount contrary information. Contrary to such explanations, we show how a much weaker mechanism—the preference for belief—can produce issue polarization in epistemic communities with little to no mechanisms of exclusion. We present a network model that demonstrates how a dynamic interaction between the preference for belief and common structures (...) of epistemic communities can turn very small unequal distributions of initial beliefs into full-blown polarization. This points to a different class of explanations, one that emphasizes the importance of the initial spread of information. We also show how our model complements extant explanations by including a version of biased assimilation and motivated reasoning—cognitive mechanisms of exclusion. We find that mechanisms of exclusion can exacerbate issue polarization, but may not be the ultimate root of it. Hence, the recommended interventions suggested by extant literature is expected to be limited and the problem of issue polarization to be even more intractable. (shrink)

The American Journal of Bioethics, Volume 11, Issue 6, Page 62-64, June 2011.

In spite of the remarkable progress made in the burgeoning field of social neuroscience, the neural mechanisms that underlie social encounters are only beginning to be studied and could —paradoxically— be seen as representing the ‘dark matter’ of social neuroscience. Recent conceptual and empirical developments consistently indicate the need for investigations, which allow the study of real-time social encounters in a truly interactive manner. This suggestion is based on the premise that social cognition is fundamentally different when we are in (...) interaction with others rather than merely observing them. In this article, we outline the theoretical conception of a second-person approach to other minds and review evidence from neuroimaging, psychophysiological studies and related fields to argue for the development of a second-person neuroscience, which will help neuroscience to really go social; this may also be relevant for our understanding of psychiatric disorders construed as disorders of social cognition. (shrink)

Ethicists differ considerably in their reasons for using empirical data. This paper presents a brief overview of four traditional approaches to the use of empirical data: “the prescriptive applied ethicists,” “the theorists,” “the critical applied ethicists,” and “the particularists.” The main aim of this paper is to introduce a fifth approach of more recent date (i.e. “integrated empirical ethics”) and to offer some methodological directives for research in integrated empirical ethics. All five approaches are presented in a table for heuristic (...) purposes. The table consists of eight columns: “view on distinction descriptive-prescriptive sciences,” “location of moral authority,” “central goal(s),” “types of normativity,” “use of empirical data,” “method,” “interaction empirical data and moral theory,” and “cooperation with descriptive sciences.” Ethicists can use the table in order to identify their own approach. Reflection on these issues prior to starting research in empirical ethics should lead to harmonization of the different scientific disciplines and effective planning of the final research design. Integrated empirical ethics (IEE) refers to studies in which ethicists and descriptive scientists cooperate together continuously and intensively. Both disciplines try to integrate moral theory and empirical data in order to reach a normative conclusion with respect to a specific social practice. IEE is not wholly prescriptive or wholly descriptive since IEE assumes an interdepence between facts and values and between the empirical and the normative. The paper ends with three suggestions for consideration on some of the future challenges of integrated empirical ethics. (shrink)

Vijf bijdragen over de visie van de Duitse filosoof (1889-1976) op de verhouding van het dier tot de wereld.

How do Dutch people let each other know that they disagree? What do they say when they want to resolve their difference of opinion by way of an argumentative discussion? In what way do they convey that they are convinced by each other’s argumentation? How do they criticize each other’s argumentative moves? Which words and expressions do they use in these endeavors? By answering these questions this short essay provides a brief inventory of the language of argumentation in Dutch.

The study of argumentation is prospering. After its brilliant start in Antiquity, highlighted in the classical works of Aristotle, after an alternation of ups and downs during the following millennia, in the post-Renaissance period its gradual decline set in. Revitalization took place only after Toulmin and Perelman published in the same year their landmark works The Uses of Argument and La nouvelle rhétorique. The model of argumentation presented by Toulmin and Perelman’s inventory of argumentation techniques inspired a great many scholars (...) in various ways to take up the study of argumentation in a serious manner. Nowadays there are well-established logical approaches to argumentation, but also social and socio-psychological, linguistic, juridical and other approaches. In most of these approaches traces can be found of the influence of the classical and neo-classical argumentation theories just mentioned. (shrink)

Many theories about human number representation stress the importance of a central semantic representation that includes the magnitude information of small integer numbers, and that is conceived as an abstract, compressed number line. However, thus far there has been little or no direct evidence that units and teens are represented on the same number line. In two masked priming experiments, we show that single-digit and two-digit Arabic numerals are equally well primed by an Arabic numeral with the same number of (...) digits as by an equally distant Arabic numeral with a different number of digits (e.g. the priming effect of 7 on the target 9 is the same as the priming effect of 11 on the target 9). The finding was obtained both with a number naming task and with a parity judgement task. This is in line with the hypothesis that units and teens are part of a continuous number line. (shrink)

The method of reflective equilibrium is typically characterized as a process of two kinds of adjustments: hold fixed one’s current set of commitments/intuitions and adjust rules/principles to account for them, then hold fixed those rules while making adjustments to one’s set of commitments. Repeat until no further adjustments are required. Such characterizations ignore the role of precedent, i.e., information about the commitments and rules of others and how those might serve as guides in one’s own process of deliberation. In this (...) paper we develop a model that narrows in on a local part of a reflective equilibrium process in which a group of peer agents start with identical lists of commitments and work towards finding the rule that captures that set. If successful, we say they reach rest stop interpersonal convergence. The trouble is that, without precedent, reaching this convergence rests on implausible deterministic assumptions. We analyze how far the inclusion of a kind of soft precedent goes towards aiding the group in reaching said convergence when those assumptions are relaxed. (shrink)

If one compares the development of modern medical ethics in Germany with those in the Netherlands, what stands out are the cultural and intellectual differences between the two countries. Dealing with the problems involved in limiting medical treatment, the authors show the differing and the common standards and values on which the discussion of this is based in both countries. Three examples, active termination of life, the do-not-resuscitate order and pain management, which are examined from an historical, legal, philosophical and (...) ethical perspective, put this in concrete terms. The authors belong to different generations as well as different political and philosophical camps. Vergleicht man die Entwicklung der modernen Medizinethik in Deutschland mit jener in den Niederlanden, fallen die kulturellen und intellektuellen Unterschiede zwischen beiden Landern deutlich auf. Anhand der Problematik der Begrenzung medizinischen Handelns zeigen die Autoren die verschiedenen bzw. gemeinsamen Normen und Werte, die der Diskussion daruber in beiden Landern zugrunde liegen. Drei Beispiele, die aktive Lebensbeendigung, die Nicht-Reanimierung und die Schmerzbekampfung, die aus historischem, juristischem, philosophischem und ethischem Blickwinkel betrachtet werden, konkretisieren die Darstellung. Die Autoren gehoren unterschiedlichen Generationen, politischen und lebensanschaulichen Lagern an. (shrink)

Opinions are rarely binary; they can be held with different degrees of conviction, and this expanded attitude spectrum can affect the influence one opinion has on others. Our goal is to understand how different aspects of influence lead to recognizable spatio-temporal patterns of opinions and their strengths. To do this, we introduce a stochastic spatial agent-based model of opinion dynamics that includes a spectrum of opinion strengths and various possible rules for how the opinion strength of one individual affects the (...) influence that this individual has on others. Through simulations, we find that even a small amount of amplification of opinion strength through interaction with like-minded neighbors can tip the scales in favor of polarization and deadlock. (shrink)

In this article, I present two conceptual problems for Craver's mutual manipulability account of constitutive relevance in mechanisms. First, constitutive relevance threatens to imply causal relevance despite Craver (and Bechtel)'s claim that they are strictly distinct. Second, if (as is intuitively appealing) parthood is defined in terms of spatio-temporal inclusion, then the mutual manipulability account is prone to counterexamples, as I show by a case of endosymbiosis. I also present a methodological problem (a case of experimental underdetermination) and formulate two (...) partial, but fallible solutions based on the notions of parthood and synchronicity. (shrink)

This article offers a general discussion of the concept of false hope. Its ultimate aim is to clarify the meaning and the relevance of that concept for medicine and medical research. In the first part, the concept of hope is discussed. I argue that hope is more than a combination of a desire and a belief about the probability that the desire will be fulfilled. Imagination and anticipation are as well components of hope. I also discuss if hope implies orientation (...) to action. In the second part, I examine the concept of false hope. I show that hope is false if it cannot be justified epistemically. There is, I argue, an intimate relation between false hope and ignorance. Hope is justified—“realistic”—when the hoping person knows and accepts experts’ judgement about the probability of hope fulfillment. I then argue that what matters for evaluating a person’s hope is not only whether it is realistic, but also whether it is reasonable in the light of the aim and goals that a person strives for in his life. Part three goes into the question of what is morally wrong about having or causing false hope. In the fourth part, the relevance is shown of the insights from the previous parts for the debate on false hope in medicine and clinical research. (shrink)