A standard view about criminal law distinguishes between two kinds of offenses, “mala in se” and “mala prohibita.” This view also corresponds to a distinction between two bases for criminalization: certain acts should be criminalized because they are moral wrongs; other acts may be criminalized for the sake of promoting overall welfare. This paper aims to show two things: first, that allowing for criminalization for the sake of promoting welfare renders the category of wrongfulness crimes largely redundant. Second, and more (...) importantly, accepting welfare as a legitimate ground for criminalization implies a certain view about legitimate state action, which makes criminalization for wrongfulness more difficult to justify. If I am right, the view that keeps the two categories of criminalization as largely separate is untenable. I conclude with some remarks about the advantages of welfare as the basis for criminalization. (shrink)

It is natural to think of legal positivism and jurisprudential naturalism as intellectually allied ideas. Legal positivism is associated with the idea that law is a matter of social fact; naturalism is a philosophical tenet that, among other things suggests the importance of scientific findings and methods to philosophy. At the very least, there seems to be a close family resemblance between the two views. In this essay, I challenge this view from a naturalistic perspective. I show that the best-known (...) proponents of legal positivism in the twentieth century all rejected naturalism. I dedicate most of my discussion to H.L.A. Hart’s version of legal positivism, as it appears superficially friendly to naturalism. I show that throughout his career and in writings on a wide range of topics, Hart consistently argued against the applicability of the methods of science to the explanation of social phenomena. This is not a small matter: I argue that it is this anti-naturalistic stance that contributed to his descriptively faulty account of adjudication. After reviewing more briefly the work of other leading legal positivists, I argue in my conclusion that those seeking to advance a naturalistic approach to law should turn their backs of much of twentieth-century legal positivism, which in various guises has been hostile to naturalism. (shrink)

The purpose of this essay is to offer a reconstruction of Lon Fuller’s critique of Hart’s legal positivism. I show that contrary to the claims of Fuller’s many critics, one can derive from his work a clear and powerful argument against legal positivism, at least in the guise found in the work of H.L.A. Hart. The essence of the argument is that Fuller’s principles of legality posit that the same considerations that count for law’s excellence are relevant also for the (...) determining what counts as law. I contrast this view with Hart’s legal positivism, which acknowledged that the principles of legality are relevant for law’s excellence, but considered them irrelevant for determining the question what counts as law. I argue that the positivist position is arbitrary, and - a point on which I focus - completely undefended. I draw from this point a more general challenge to Hart’s theory of law (as well as that of many of his followers), namely that though claimed to be a true theory of law, it has no resources to explain why this is so. I argue that Fuller’s theory does not suffer from this problem, because Fuller rejected a staple of contemporary jurisprudence - the separation of conceptual and normative jurisprudence. (shrink)

One of the ways by which Gerald Postema’s Bentham and the Common Law Tradition revolutionized the study of Bentham’s jurisprudence was by challenging the idea, made popular by Hart (both in his jurisprudential work and his interpretation of Bentham), that the study of law in general is normatively neutral. Against this view, Postema argued that one must understand Bentham’s views on law and jurisprudence in relation to his utilitarianism. At the time of publishing the book, Bentham went very much against (...) the grain, but this view has since gained considerable support. In my paper I seek to refine it. As I see it, Bentham did not think of utilitarianism as a moral theory. Rather, he is best understood as advancing utilitarianism as a public philosophy—an end for the legislator, and only indirectly applicable for individuals in their everyday lives. This makes Bentham’s utilitarianism tied to his legal philosophy in an even deeper sense than Postema suggested. Law is not there to imitate and help enforce an already existing utilitarian morality that tells people (independently of the law) what they should do. Instead, we should think of law as a mechanism (or a technology) for generating normative guidelines (where those do not otherwise exist). The effect of this is to reverse the familiar way of understanding the relationship between law and morality. (shrink)

Ratio Juris, Volume 34, Issue 4, Page 415-437, December 2021.

In the last three decades or so a prominent view among legal philosophers has been that while legal theory is evaluative because it requires making judgments of importance, it can remain morally neutral. This view, which I call the ‘orthodox view’, was first articulated by Joseph Raz and has since been supported by many other prominent legal philosophers. In this essay I examine it, and argue that it is indefensible. I begin by examining the terms ‘description’ and ‘evaluation’, and show (...) that they are ambiguous in a way that most current discussion does not realize. I then rely on this analysis to develop several arguments against the orthodox view. I argue that defenders of the orthodox view have considered only one such argument, and that even with regard to this one their response is unsuccessful. (shrink)

Matthew Kramer has recently proposed a distinction between norms that are free-floating and those that are not. The distinction, he argued, enables us to distinguish between norms that can be incorporated into the law and those that cannot. In this essay I argue that his distinction is based on several theoretical errors, and that even if it were successful, it is unclear why his distinction is relevant for the question of the boundaries between law and morality. I also provide many (...) examples from actual legal systems of legal norms that do not correspond to Kramer’s distinction. I conclude the essay by suggesting that Kramer’s argument exemplifies a prevalent problem in contemporary legal philosophy, in which much work is often based on simplistic models of law and uses them to develop ‘conceptual’ arguments for what closer attention to the facts shows are empirical questions. As a result many current jurisprudential debates are not helpful for understanding legal phenomena. Recognizing this point is important for reorienting legal philosophy towards other questions which would be more helpful for illuminating its subject-matter. (shrink)

In this essay I argue that in some sense legal philosophy, at least as the term is now understood among analytic jurisprudents in the Anglophone world, is to a large extent a creation of H. L. A. Hart’s work. It is with him that the search for the concept or the nature of law was one established as an independent object of inquiry, that consciously tried to avoid moral or political questions. In framing the province of jurisprudence in this way (...) Hart not only departed from the work of Thomas Hobbes and Jeremy Bentham, whose political commitments are clear, but also from the seemingly much closer enterprise of John Austin. After demonstrating this difference between Austin’s enterprise and Hart’s, I criticize the direction legal philosophy has taken following Hart’s lead.Resumen:En este ensayo se plantea la idea de que en cierto modo la filosofía del derecho —al menos en la forma en que es entendida entre los filósofos analíticos del mundo angloparlante— es en gran medida una invención de H. L. A. Hart. Con la obra de Hart, en efecto, la búsqueda del concepto o naturaleza del derecho, se ha consolidado como un objeto de investigación independiente, que conscientemente pretende deslindarse de las cuestiones políticas o morales. Al definir el campo de estudio de la filosofía del derecho en este sentido, Hart no sólo se aparta del trabajo de Thomas Hobbes y de Jeremy Bentham, cuyos compromisos políticos son evidentes, sino también del proyecto aparentemente más cercano de John Austin. Después de señalar la diferencia entre los proyectos de Austin y de Hart, el autor pone en cuestión la dirección que ha tomado la filosofía del derecho al ser encabezada por Hart. (shrink)

A currently popular view among legal positivists is that law is a social construction. Many of the same legal philosophers also argue that before one can study law empirically, one needs to know what it is. At the heart of this paper is the claim that these two propositions are inconsistent. It presents the following dilemma: if law is a social construction like all other social constructions, then legal philosophers have to explain what philosophers have to contribute to understanding it. (...) Studies of social constructions are typically conducted by historians, sociologists, and others, who explain them on the basis of empirical data. If, as legal philosophers claim, conceptual clarification must precede empirical work, then it follows that the lack of conceptual work on the nature of other social constructions renders suspect all empirical work on them. To avoid such a radical conclusion, legal philosophers may argue instead that law is a social construction of a special kind. But to say that is to undermine the premise with which the argument began. Moreover, this response to the dilemma collapses what is now taken to be what separates legal positivism from natural law theory, thus undermining the motivation for this view. I conclude the essay by offering a different solution to the dilemma by suggesting that it shows that the fundamental debates of legal philosophy are not conceptual but political. (shrink)

Many legal theorists have argued that analogical reasoning is merely rule-following in which the general rule is not stated. Lloyd Weinreb's tries to defend the practice of analogical reasoning on its own terms. He does so by giving examples of the way people use analogical reasoning, both in legal and non-legal contexts, as a means for deciding how to act in particular circumstances. By itself such evidence does not support Weinreb's case, because to justify analogy he must show that analogical (...) reasoning can somehow lead us to correct answers. Moreover, his evidence does nothing to challenge the claim that analogical reasoning is simply following suppressed rules.I try to give Weinreb a helping hand. I use the data he mentions that people actually reason by analogy as a starting point for a novel justificatory account of analogical reasoning based on the notion of reliable results: a process of reasoning is reliable, and therefore reliance on it justified, if it tends to generate correct results. This requires explaining what counts as correct results in law, which is a question of political philosophy. I show that the most fundamental condition for the acceptability of analogical reasoning is that the standard of legal correctness is not determined by principles derived by Reason (as is the approach in the civil law tradition) but rather by a standard of acceptance (more prevalent in the common law tradition). Nonetheless, I argue that there two other conditions - shared social values and skepticism about the possibility of discovering the right normative foundations to legal questions - that together have to obtain in order to justify reliance on analogical reasoning. Since that in a modern society it is unlikely that these two conditions are not likely to obtain, I conclude that even this sympathetic reconstruction of Weinreb's argument ultimately fails. (shrink)

Contemporary legal philosophy is predominantly anti-naturalistic. This is true of natural law theory, but also, more surprisingly, of legal positivism. Several prominent legal philosophers have in fact argued that the kind of questions that legal philosophers are interested in cannot be naturalized, such that a naturalistic legal philosophy is something of a contradiction in terms. Against the dominant view I argue that there are arguable naturalistic versions of both legal positivism and natural law. Much of the essay is dedicated to (...) showing that such views are possible: I identify naturalistic versions of a “natural law” view, a “positivist” view, as well as a “semi positivist” view, all of which are variants of the familiar views defended under these labels. I also offer a tentative argument in support of a naturalistic positivist view, one that has more in common with the views of Thomas Hobbes and Jeremy Bentham than with the anti-naturalistic positivist views popular these days. (shrink)

Volume 10, Issue 3, September 2019, Page 396-407.

Dan Zahavi engages with classical phenomenology, philosophy of mind, and a range of empirical disciplines to explore the nature of selfhood. He argues that the most fundamental level of selfhood is not socially constructed or dependent upon others, but accepts that certain dimensions of the self and types of self-experience are other-mediated.

Humans massively depend on communication with others, but this leaves them open to the risk of being accidentally or intentionally misinformed. To ensure that, despite this risk, communication remains advantageous, humans have, we claim, a suite of cognitive mechanisms for epistemic vigilance. Here we outline this claim and consider some of the ways in which epistemic vigilance works in mental and social life by surveying issues, research and theories in different domains of philosophy, linguistics, cognitive psychology and the social sciences.

The alleged for-me-ness or mineness of conscious experience has been the topic of considerable debate in recent phenomenology and philosophy of mind. By considering a series of objections to the notion of for-me-ness, or to a properly robust construal of it, this paper attempts to clarify to what the notion is committed and to what it is not committed. This exercise results in the emergence of a relatively determinate and textured portrayal of for-me-ness as the authors conceive of it.

In his recent book ‘Kant and the Mind’ Andrew Brook makes a distinction between two types of selfawareness. The first type, which he calls empirical self-awareness, is an awareness of particular psychological states such as perceptions, memories, desires, bodily sensations etc. One attains this type of self-awareness simply by having particular experiences and being aware of them. To be in possession of empirical self-awareness is, in short, simply to be conscious of one’s occurrent experience. The second type of self-awareness he (...) calls apperceptive self-awareness. This type of self-awareness entails an awareness of oneself as the subject of experience. For this type of self-awareness to obtain, it would not be enough merely to be conscious of, say, an occurrent perception of a chair, one would also have to be aware that it was oneself who was perceiving the chair. And as Brook adds, when I am self-aware in this way, I am not only aware of being the subject of a single experience, but also aware of myself as the common subject of other psychological states (Brook, 1994: 55-57). I find Brook’s distinction illuminating, but it raises a question which I would like to pursue in this paper. When we speak of self-awareness, do we then necessarily also speak of a self, is there so to speak always a self involved in self-awareness, or is it rather the case, as Brook’s notion of empirical selfawareness might suggest, that there are types of self-awareness which are ‘selfless’, or to use two other related terms ‘subjectless’ or ‘non-egological’? Is self-awareness always to be understood as an awareness of a self, or can it be understood simply as the awareness which a specific experience has of itself? Ultimately, I believe an answer to these questions are important, both when it comes to an understanding of what exactly self-awareness amounts to, and also when it comes to a proper understanding of what a self is.. (shrink)

Many contemporary legal positivists have argued that legal theory is evaluative because it requires the theorist to make judgments of importance. At the same time they argue that it is possible to know without resort to evaluative considerations. I distinguish between two senses of : in one sense it refers to legal validity, in another to the content of legal norms, and I argue that legal positivism is best understood (as indeed some legal positivists have explicitly said) as a claim (...) about legal content. Understood this way, however, it is open to the objection that knowing the content of legal norms requires evaluative considerations for reasons similar to those offered by positivists for thinking that legal theory is requires evaluative considerations. I then distinguish between evaluative considerations in general and moral considerations and argue that because of the subject-matter of legal norms, there are good reasons for thinking that it is moral considerations, and not just any other evaluative considerations, that are required for knowing the content of legal norms. (shrink)

Abstract. The paper begins by challenging Hart's argument aimed to show that sanctions are not part of the concept of law. It shows that in the "minimal" legal system as understood by Hart, sanctions may be required for keeping the legal system efficacious. I then draw a methodological conclusion from this argument, which challenges the view of Hart (and his followers) that legal philosophy should aim at discovering some general, politically neutral, conceptual truths about law. Instead, the aim should be (...) to discover the values because of which certain things in the world are classified as law and others as non-law. Focusing on those would give us a more insight to the roles law plays in society, as well as more illuminating answers to traditional jurisprudential questions like the status of law in evil regimes. (shrink)

Many of the current debates in jurisprudence focus on articulating the boundaries of law. In this essay I challenge this approach on two separate grounds. I first argue that if such debates are to be about law, their purported subject, they ought to pay closer attention to the practice. When such attention is taken it turns out that most of the debates on the boundaries of law are probably indeterminate. I show this in particular with regard to the debate between (...) inclusive and exclusive positivists: I present several ways of understanding what this debate is about and argue that none of them is defensible. My second argument focuses more on the purpose of jurisprudential inquiry. I argue there that even if some jurisprudential debates have determinate answers, it does not follow that they deserve our attention, because not all true facts are worth knowing. After discussing and rejecting the claim that jurisprudence could be justified as knowledge for its own sake, I propose one possible justification for engaging in legal philosophy and outline its implications for the kind of issues that should be pursued. (shrink)

The aim of this volume is to discuss recent research into self-experience and its disorders, and to contribute to a better integration of the different ...

Responds to Leiter's naturalist/realist approach to jurisprudence - particularly his claim that such an approach implies exclusive positivism. Considers analogy with naturalized epistemology. "With regard to the first step the realists were anti-foundationalists in the sense that they 'denied that legal reasons justify a unique decision: the legal reasons underdetermine the decision '. The second step, the replacement suggests that instead of a justificatory account of adjudication, i.e. some prescription as to how judges should decide cases, the reaslists provided an (...) empirical description o fhow judges actually decide cases." Notes that positivists are generally commited to a moderate foundationalism by their acceptance of a RoR. "[T]he analogy with the epistemological anti-foundationalist thesis would suggest that foundationalism in law is committed to the view that if X is a legal norm, it is a legal norm in virtue of inference from self-validating foundations. There is nothing in this view that commits the legal foundationalist to the view that legal norms necessarily cover the entire practical domain, and therefor provide a determinate answer to every practical question...Now, if the anti-foundationl step fails, then we need not, indeed must not, take the second step, because if we take it, we will lsoe something of great importance for our understanding of law. If legal norms qua reasons are part of what determines the outcome of cases, then in order to understand how legal decisions are reached, we cannot disregard them." If Leiter rejects this moderate foundationalism, then it is in tension with his other claim that the realists were positivists. Goes on to argue that nothing in the realist program contributes to the hard vs. soft positivism debate and, in fact, does nothing to substantiate positivism. Offers brief explication of "positivism of norms". (shrink)

What does the fact that we feel shame tell us about the nature of self? Does shame testify to the presence of a self-concept, a self-ideal, and a capacity for critical self-assessment, or does it rather, as some have suggested, point to the fact that the self is in part socially constructed? Should shame primarily be classified as a self-conscious emotion, is it rather a distinct social emotion, or might this forced alternative be misguided? In the chapter, I contrast certain (...) prevalent cognitivist accounts of shame with different proposals that can be found in the phenomenological tradition and ultimately argue that prototypical forms of shame provide vivid examples of other-mediated forms of self-experience. (shrink)

The text surveys the development of the debate between Zahavi and Brough/Sokolowski regarding Husserl’s account of inner time-consciousness. The main arguments on both sides are reconsidered, and a compromise is proposed.

The claim that the human cognitive system tends to allocate resources to the processing of available inputs according to their expected relevance is at the basis of relevance theory. The main thesis of this chapter is that this allocation can be achieved without computing expected relevance. When an input meets the input condition of a given modular procedure, it gives this procedure some initial level of activation. Input-activated procedures are in competition for the energy resources that would allow them to (...) follow their full course. What determines which of the procedures in competition get sufficient resources to trigger their full operation is the dynamics of their activation. This dynamics depend both on the prior degree of mobilisation of a modular procedure and on the activation that propagates from other active modules. It is quite conceivable also that the mobilisation of some procedures has inhibitory effects on some others. The relevance-theoretic claim is that, at every instant, this dynamics of activation provides rough physiological indicators of expected relevance. The flow of energy in the system is locally regulated by these indicators. As a result, those input-procedure combinations that have the greatest expected relevance are the more likely ones to receive sufficient energy to follow their course. (shrink)

The Oxford Handbook of Contemporary Phenomenology presents twenty-eight essays by some of the leading figures in the field, and gives an authoritative overview of the type of work and range of topics found and discussed in contemporary phenomenology. It is the definitive guide to what is currently going on in phenomenology, and offers a rich source of insight and stimulation for philosophers, students of philosophy, and for people working in other disciplines of the humanities, social sciences, and sciences, who are (...) interested in the state of phenomenology today. The essays explore a diverse range of topics, including intentionality, embodiment, perception, naturalism, temporality, self-consciousness, language, knowledge, ethics, politics, art and religion, and will make it clear that phenomenology, far from being a tradition of the past, is alive and in a position to make valuable contributions to contemporary thought. (shrink)

Millikan and Her Critics offers a unique critical discussion of Ruth Millikan's highly regarded, influential, and systematic contributions to philosophy of mind and language, philosophy of biology, epistemology, and metaphysics. These newly written contributions present discussion from some of the most important philosophers in the field today and include replies from Millikan herself.

The Oxford Handbook of the History of Phenomenology contains thirty-seven new essays by leading scholars in the field. The essays all highlight historical influences, connections, and developments and provide an in-depth coverage of the development of phenomenology; one that allows for a better comprehension and assessment of the continuity as well as diversity of the phenomenological tradition. The handbook is divided into three distinct parts. The first part contains chapters that address the way phenomenology has been influenced by earlier periods (...) or figures in the history of philosophy. The second part contains chapters targeting prominent phenomenologists: How was their work affected by earlier figures, how did their own views change over time, and what kind of influence did they exert on subsequent thinkers? The contributions in the third part trace various core topics such as subjectivity, intersubjectivity, embodiment, spatiality, and imagination in the work of different phenomenologists, in order to explore how the notions were transformed, enriched, and expanded up through the century. The handbook will be a source of insight for philosophers, students of philosophy, and for people working in other disciplines of the humanities, social sciences, and sciences, who are interested in the phenomenological tradition. It is an authoritative guide to how phenomenology started, how it developed, and where it is heading. (shrink)

The relationship of self, and self-awareness, and experience: exploring classical phenomenological analyses and their relevance to contemporary discussions in ...

This revised edition includes a new Preface outlining developments in Relevance Theory since 1986, discussing the more serious criticisms of the theory, and ...

This essay defends a novel interpretation of the term xìng 性 as it occurs in Chinese texts of the late Warring States period (roughly 320–221 BCE). The term played an important role both in the famous controversy over the goodness or badness of people’s xìng and elsewhere in the intellectual discourse of the period. Extending especially the work of A.C. Graham, the essay stresses the importance for understanding xìng of early Chinese assumptions about spontaneity, continuity, health, and (in the human (...) case) motivation. These assumptions make xìng fundamentally different from the contemporary nature concepts with which it is often equated. In particular, people’s xìng is not a near-equivalent of human nature or (in modern Chinese) of rénxìng 人性. (shrink)

How should we appraise Bergson’s relation to phenomenology? There are different ways to tackle this question. In the following my focus will be quite narrow. I will restrict myself to a close reading of Bergson’s doctoral dissertation Essai sur les données immédiates de la conscience. The question I wish to ask is basically whether the analysis of consciousness that Bergson provides in the second chapter of the dissertation is phenomenologically convincing.