The fields of linguistic pragmatics and legal interpretation are deeply interrelated. The purpose of this paper is to show how pragmatics and the developments in argumentation theory can contribute to the debate on legal interpretation. The relation between the pragmatic maxims and the presumptions underlying the legal canons are brought to light, unveiling the principles that underlie the types of argument usually used to justify a construction. The Gricean maxims and the arguments of legal interpretation are regarded as presumptions subject (...) to default used to justify an interpretation. This approach can allow one to trace the different legal interpretive arguments back to their basic underlying presumptions, so that they can be compared, ordered, and assessed according to their defeasibility conditions. This approach allows one to understand the difference between various types of interpretive canons, and their strength in justifying an interpretation. (shrink)

Lilian Bermejo-Luque has posed these questions:1.What is the relationship between presumption and presumptive inference? 2.What are the correctness conditions for presumptions and presumptive inferences? Cohen’s method of relevant variables, Toulmin’s model, and Rescher’s theory of plausibility suggest answers. An inference is presumptive just in case its warrant transfers presumption from its premises to its conclusion. A warrant licencing an inference from the claim that an empirical property φ holds to the claim that some other property ψ holds is (...) backed by observation of a constant conjunction of those properties. The stronger the backing, the stronger the warrant. Warrants may be defeated by instances of φ holding in conjunction with some property χ and ψ not holding. The method of relevant variables directs us to organize such defeating properties into relevant variables. We then test the strength of a warrant by seeing how many variables fail to have a value which defeats the warrant. The more variables with no defeater, the stronger the warrant. We may construct a canonical ordering of the relevant variables by ranking them according to the plausibility of their including defeating values. We may evaluate the strength not only of empirically backed warrants, but warrants backed by institutional rules, such as a branch of law, or by a priori intuited connections between properties. An inference rule will be presumptive just in case the plausibility of its warrant being defeated is below some specified level. (shrink)

Today’s textualist Supreme Court draws a bright line between essential “linguistic” interpretive canons and suspect “substantive” canons. This Article’s thesis is that the venerable linguistic/substantive dichotomy is false. We present the first empirical study of whether ordinary people (N = 1,520) understand rules in line with some of law’s substantive canons. The study supports that some substantive canons represent valid linguistic generalizations about how ordinary people understand rules’ meaning. For example, the presumption against retroactivity is usually justified by values (...) like fairness, but it also best reflects ordinary readers’ default understanding of rules’ meanings. -/- In an age of textualism, this argument has direct practical implications. Interpreters committed to the ordinary reader should reconsider whether rules that have been traditionally described as “substantive canons” might also be linguistic ones. The article’s analysis also puts pressure on textualists to better justify their recent embrace of purely substantive canons, like the new “major questions” canon. Most broadly, the Article makes progress on a longstanding philosophical debate about facts and values in interpretation. Beyond the exclusively linguistic canons and the exclusively substantive canons, there is an important but overlooked category: The linguistic and substantive canons. (shrink)

A superb new edition of Epictetus’s famed handbook on Stoicism—translated by one of the world’s leading authorities on Stoic philosophy Born a slave, the Roman Stoic philosopher Epictetus taught that mental freedom is supreme, since it can liberate one anywhere, even in a prison. In How to Be Free, A. A. Long—one of the world’s leading authorities on Stoicism and a pioneer in its remarkable contemporary revival—provides a superb new edition of Epictetus’s celebrated guide to the Stoic philosophy of life (...) along with a selection of related reflections in his Discourses. Freedom, for Epictetus, is not a human right or a political prerogative but a psychological and ethical achievement, a gift that we alone can bestow on ourselves. We can all be free, but only if we learn to assign paramount value to what we can control, treat what we cannot control with equanimity, and view our circumstances as opportunities to do well and be well, no matter what happens to us through misfortune or the actions of other people. How to Be Free features splendid new translations and the original Greek on facing pages, a compelling introduction that sets Epictetus in context and describes the importance of Stoic freedom today, and an invaluable glossary of key words and concepts. The result is an unmatched introduction to this powerful method of managing emotions and handling life’s situations, from the most ordinary to the most demanding. (shrink)

In this essay, I compare two pioneer thinkers of the “just war” tradition across cultures: Gratian in the Christian tradition, and Mengzi (Mencius) in the Confucian tradition. I examine their historical-cultural contexts and the need for both to discuss just war, introduce the nature of their treatises and the rudimentary theories of just war therein, and trace the influence both thinkers’ theories have had on subsequent just war ethics. Both deemed just cause, proper authority, and right intention to be necessary (...) conditions for initiating a just war. However, Gratian’s theory has a presumption against injustice whereas Mengzi’s theory has a presumption against war. As a jurist of the Church, Gratian sought to discriminate just from unjust wars, while Mengzi, a moral-political advisor to rulers, was more concerned with avoiding bloodshed and building lasting peace. In addition to examining these thinkers’ respective historical influences, I submit that Gratian’s Decretum and the Mengzi are pioneering in two more senses. First, they offer important clues to understanding how just war ideas were developed very differently in medieval Europe and in premodern China. Second, both embodied features that helped shape their subsequent intellectual tradition, which in turn molded the different legacies of these two works. (shrink)

Christian theology’s concern for the individual whatever their station expanded the scope of criminal law from protection of the interests of the regime to the security of all in society. The concept of mens rea was first mentioned by Augustine of Hippo and became a key part of the Church’s canon law. From there it was adopted by the secular legal systems of both civil law and common law. Such systems imposed criminal liability on those whose state of mind (...) was adjudged to make them guilty for serious wrongs they did to others. Christian theology also offered the West’s legal systems a grammar for criminal law built around the idea of criminal responsibility for personal, voluntary, culpable acts. These requirements protected against scapegoating and stereotyping, led to the presumption of innocence, and limited the range of actions for which one could be punished. (shrink)

Contrary to the received understanding that Francisco de Vitoria and Francisco Suárez ruled out religious war by grounding just cause in natural law, they supported a robust view of papal authority for war when necessary for the defense of the church against heretics, schismatics, and pagans as well as for the spread of Christianity and Christendom throughout the world. They believed that religious wars were in accord with natural law as a means to its fulfillment in Christianity, as a justification (...) for the defense of the church as the one true faith, and as a moral obligation to provide all of humanity with the opportunity to receive Christian truth and grace. The neo‐Thomists' vigorous support for religious war was in the mainstream of the Christian just war tradition from the time of the wars against pagans in the early middle ages through their own time. This finding and the continuation into the modern era of sanctified patriotism stemming from the mixing of church and state especially during war that began in early Middle Ages, along with the historic roots of the recently prominent presumption against war, argue for a more complex understanding of the normative Christian just war tradition than that found among supporters of the classic interpretation of that tradition. (shrink)

My aim in this paper is fairly modest. I obviously do not claim that there has never been or could never be an instance of irrational or fallacious appeals to quotations from canonical sources in the marxist tradition. Instead, I claim that the practice of using quotations from canonical sources is not, as such, irrational. If we understand the epistemological infrastructure of the practice -- the rational underpinnings of it -- we can grasp how these citations appeal to the presumptive (...) authoritativeness of formulations that condense or concisely convey the core of insights that emerged from learning processes that the intellectual tradition of marxism has already traversed. The rational underpinnings of the practice include, first, the neo-Hegelian idea that we can justify a view we now hold by rationally reconstructing the insight-motivated learning process from which it emerged, and second, the convention that these rational reconstructions do not have to be elaborated in each insistence, but can be invoked in a short-form way, such as by citing the name of a decision or a concise statement of it (like a short quotation), as is common in the epistemologically similar practice of precedential reasoning in common law juridical justification. No claim is true just because of who made it; but a claim might be presumptively authoritative in cases where it was made at the end of a learning process, which has not been overtaken by a change in the circumstances or further learning. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Philosophy 41.4 (2003) 558-559 [Access article in PDF] Stephen Gaukroger. Descartes' System of Natural Philosophy. New York: Cambridge University Press, 2002. Pp. viii + 258. Cloth, $60.00. Paper, $22.00. Stephen Gaukroger, author of a definitive biography of Descartes, has now written an excellent account of Descartes's natural philosophy as presented in his Principia philosophiae. Gaukroger claims that the roots of modernity lay in the (...) philosophies of Francis Bacon and René Descartes, both of whom regarded natural philosophy, rather than either moral philosophy or metaphysics, as the core of the philosophical enterprise. Whereas Bacon developed his ideas from a background steeped in the writings of the Renaissance humanists who emphasized moral philosophy, Descartes developed his ideas in the context of Scholastic philosophy, particularly the textbooks of the Jesuits that he had encountered at La Flèche and that located the foundations of philosophy in metaphysics.Regarding the unpublished early works, Le monde and L'homme, as suppressed parts of Descartes's mature project and taking seriously Descartes's stated intention of dealing with living things and humans along with the physical world in his natural philosophy, Gaukroger presents a detailed account of this "complete" version of the Principia philosophiae. In a series of six chapters, he explicates Descartes's views on the principles of knowledge, the principles of material objects, the visible universe, the Earth, living things, and man. In addition to Le monde and L'homme, Gaukroger draws on Les Passions de l'âme as an important source for Descartes's views on human nature.Gaukroger situates Descartes's natural philosophy in the context of the Scholastic textbook tradition in a chapter preceding his account of the Principa philosophiae. He delves into the history of medieval universities, the place of natural philosophy in the medieval curriculum, and the changing relationship between metaphysics and natural philosophy, particularly after the Condemnations of 1277. Difficulties in reconciling Aristotelian natural philosophy and Christian theology, which had been formulated in terms of Aristotelian metaphysics, continued into the sixteenth century and provided the immediate background to the Jesuit commentaries and textbooks to which Descartes was exposed as a student. In these works, Jesuit philosophers attempted to derive a coherently unified Christian Aristotelianism from first principles. Gaukroger reminds us that Descartes's Principia philosophiae was a deliberate attempt to replace these Jesuit textbooks with one based on mechanistic principles.Despite the strength of Gaukroger's book as a contextualized study of a major philosophical figure who is frequently treated in an entirely ahistorical way, the book is not without its problems. The main problem is one that plagues many studies of Descartes (and other canonical figures in the history of philosophy), to wit, the presumption that he is somehow unique. For example, Gaukroger writes at length about Descartes's views about the differences between animals and humans with regard to cognition, arguing that Descartes did not consider animals to be automata because they lack rational souls but rather that they actually experience some but not all of the more abstract or reflexive forms of cognition usually ascribed to humans. Gaukroger does not mention the fact that many other early modern philosophers held a view like this. For example, Descartes's contemporary and fellow mechanical philosopher Pierre Gassendi claimed that animals could know universals, as when a dog recognizes that it is a human that is approaching, but differ from humans in not being capable of contemplating the nature of universality per se. Descartes was part of a community of thinkers concerned with similar problems, and his natural philosophy can be illuminated by viewing him in that context as well as against the backdrop of Scholasticism.Gaukroger underplays the significance of theology for Descartes's philosophy. Although he discusses how God's attributes, especially immutability, provide the basis for Descartes's laws of motion, he does not explore the specific aspects of Descartes's theological presuppositions and the way they influenced his entire natural philosophical project. Gaukroger repeats the received view that "One of the principal tasks of a mechanistic natural philosophy... (shrink)