Wesley Newcomb Hohfeld's account of legal rights is now 100 years old. It has been much discussed, and remains very influential with philosophers and lawyers alike. Yet it is still sometimes misunderstood in crucial respects. This article offers a rigorous exposition of Hohfeld's framework; discusses its claims to comprehensiveness and fundamentality, reviewing recent work on the topic; and highlights the argumentative uses of Hohfeld's most important distinction.
Successful accounts of analogy in law have two burdens to discharge. First, they must reflect the fact that the conclusion of an argument by analogy is a normative claim about how to decide a certain case. Second, they must not fail to accord relevance to the fact that the source case was authoritatively decided in a certain way. We argue in the first half of this paper that the common view of the structure of analogical arguments in law cannot overcome (...) these hurdles. In the second half we develop an original account that aims to succeed where others failed. (shrink)
This paper discusses the first incarnation of what came to be known as the “Frege-Geach” point. The point was made by Peter Geach in his 1960 essay “Ascriptivism”, and developed in “Assertion”, a 1965 piece. Geach’s articles launch a wholesale attack on theories of non-descriptive performances advanced by “some Oxford philosophers” whom he accuses of ignoring “the distinction between calling a thing ‘P’ and predicating ‘P’ of a thing”. One view that Geach specifically targets is H. L. A. Hart’s claim (...) that sentences of the form “X φ-ed” are not primarily descriptive but ascriptive of responsibility for actions. Hart explicitly accepted Geach’s criticism, and disowned his essay. I argue that he was wrong to do so. Perhaps the essay was worth retracting, but not because of Geach’s objections. I begin by restating and refining Geach’s arguments, in order to bring out the flaw he claimed to have detected in the “pattern of philosophising” that he took Hart’s essay to exemplify. I go on to argue that Geach’s original point poses no obstacle either to non-descriptivism in general, or to Hart’s sui generis non-descriptivist claim in particular. (shrink)
Our paper has three parts. In Part 1, we discuss John Gardner’s thesis that the non-elliptical ascription of agency to law is a necessary and irreducible part of any adequate explanation of the activities of legal officials. We consider three explananda which might conceivably necessitate this ascription, and conclude that none in fact does so. In Part 2, we discuss two other theses of Gardner’s: that it makes no sense to ascribe to law the claim that there are legal obligations (...) , and that law’s claim is the claim that there are moral obligations . We take issue with Gardner’s arguments for , and suggest that is unwarranted in the absence of an argument that law makes any claims at all. In Part 3, we briefly argue that, insofar as it issues requirements, there are certain claims that law cannot but make. We conclude that if Gardner is right that law’s claims are those of certain of its officials, it is law-making and not law-applying officials who make law’s claim. (shrink)
You find yourself in a court of law, accused of having hit someone. What can you do to avoid conviction? You could simply deny the accusation: 'No, I didn't do it'. But suppose you did do it. You may then give a different answer. 'Yes, I hit him', you grant, 'but it was self-defence'; or 'Yes, but I was acting under duress'. To answer in this way-to offer a 'Yes, but...' reply-is to hold that your particular wrong was committed in (...) exceptional circumstances. Perhaps it is true that, as a rule, wrongdoers ought to be convicted. But in your case the court should set the rule aside. You should be acquitted. Within limits, the law allows for exceptions. Or so we tend to think. In fact, the line between rules and exceptions is harder to draw than it seems. How are we to determine what counts as an exception and what as part of the relevant rule? The distinction has important practical implications. But legal theorists have found the notion of an exception surprisingly difficult to explain. This is the longstanding jurisprudential problem that this book seeks to solve. The book is divided into three parts. Part I, Defeasibility in Question, introduces the topic and articulates the core puzzle of defeasibility in law. Part II, Defeasibility in Theory, develops a comprehensive proof-based account of legal exceptions. Part III, Defeasibility in Action, looks more closely into the workings of exceptions in accusatory contexts, including the criminal trial. (shrink)
Can there be a non-reductivist, source-based explanation of the use of normative language in statements describing the law and legal situations? This problem was formulated by Joseph Raz, who also claimed to have solved it. According to his well-known doctrine of ‘detached’ statements, normative legal statements can be informatively made by speakers who merely adopt, without necessarily sharing, the point of view of someone who accepts that legal norms are justified and ought to be followed. In this paper I defend (...) two theses. I argue, first, that the notion of a detached statement cannot be made to work, and that Raz’s problem is thus not thereby solved. But the problem itself, I also suggest, is a false one. (shrink)
Most philosophers of criminal law agree that between criminal offences and defences there is a significant, substantial difference. It is a difference, however, that has proved hard to pin down. In recent work, Duff and others have suggested that it mirrors the distinction between criminal answerability and liability to criminal punishment. Offence definitions, says Duff, are—and ought to be—those action-types ‘for which a defendant can properly be called to answer in a criminal court, on pain of conviction and condemnation if (...) she cannot offer an exculpatory answer’; and defences are ‘exculpatory answers’ that ‘block the transition from responsibility to liability’. I criticise this answerability-based account of the offence/defence divide. It is descriptively false, I claim, as well as normatively unappealing. (shrink)
The distinction between 'conduct norms' and 'sanction norms' is widely assumed to be an essential tool for any correct understanding of criminal responsibility. Conduct norms (often also called 'primary') are referred to with the language of 'prohibitions', and it is normally accepted that a crime is by definition a 'prohibited' human behaviour, in the sense that it is always an infraction of a 'conduct norm'. I mean to discuss and criticize this rather consensual assumption. Modern criminal codes don't usually incorporate (...) a catalogue of prohibitions, but this is considered to be of no consequence when it comes to discuss whether the law prohibits those behaviours whose performance may lead to the application of a criminal sanction: there is no question that sanction norms may be properly read out of the special parts of our criminal codes, and from a sanction norm it is always possible to infer the correspondent prohibition. Or so the current understanding goes. I shall first try to make some sense of this common idea, which I call the inference thesis. I will then proceed to show why it is wrong. The inference thesis is necessarily committed to an understanding of conduct norms as prescriptive norms addressed to citizens, and the relevant notion of a prescriptive norm has to be characterized in some detail. Having done so, I will argue that such a prescriptive understanding of 'conduct norms' is incompatible with several aspects common to most modern systems of criminal law and unquestionably essential to the concept of a crime. (shrink)
: In this paper we examine two challenges to the orthodox understanding of the fallacy of denying the antecedent. One challenge is to say that passages thought to express the fallacy can usually be given an interpretation on which they express valid arguments, entitling us to query whether the fallacy is commonly, if ever, committed at all. We discuss this claim in Section 1. The second challenge comes from those who think that there are legitimate uses of denying the antecedent (...) that have traditionally been overlooked. In Section 2 we propose a general test for claims of this sort, and assess three versions of this view. (shrink)
In his essay “Pre-Conventions: A Fragment of the Background”, Bruno Celano seems to endorse three claims about what he calls ‘pre-conventions’: that such ‘entities’ exist; that they are neither rules nor de facto regularities; and that their ‘character’ is at once factual and normative: that pre-conventions are “literally, ‘normative facts’.” I suggest that and are not particularly striking claims, and that Celano’s case for is unpersuasive.
I propose and defend a proof-based account of legal exceptions. The basic thought is that the characteristic behaviour of exceptions is to be explained in terms of the distinction, relative to some given decision-type C in some decision-making context, between two classes of relevant facts: those that may, and those that may not, remain uncertain if a token decision C is to count as correctly made. The former is the class of exceptions. A fact F is an exception relative to (...) some decision-type C, I claim, if (i) the ascertainment of F is sufficient for a token decision C not to count as correctly made, and (ii) the ascertainment of the negation of F is not necessary for a token decision C to count as correctly made. I also recuperate, reconstruct and discuss some of HLA Hart’s early views on defeasible judicial decisions. These two projects are closely connected: the latter is a vehicle for the former. (shrink)
This is my reply to five extended critical assessments of my book Law as a Leap of Faith, appearing together in a symposium issue of Law and Philosophy. The critics are Kevin Toh, LuísDuarte d’Almeida and James Edwards, Fábio Perin Shecaira, Cristina Redondo, and Matthew Smith. The topics include H.L.A. Hart’s philosophical legacy, the moral claims of law, the nature of legal reasoning, the doctrine of legal positivism, and the possibility of alienation from law.
Exposing Fake Logic by Avi Sion is a collection of essays written after publication of his book A Fortiori Logic, in which he critically responds to derivative work by other authors who claim to know better. This is more than just polemics; but allows further clarifications of a fortiori logic and of general logic. This collection includes essays on: a fortiori argument (in general and in Judaism); Luis Duarte D’Almeida; Mahmoud Zeraatpishe; Michael Avraham (et al.); an anonymous reviewer of (...) BDD (a Bar Ilan University journal); and self-publishing. (shrink)
Le discours managérial constitue un véritable genre et représente une catégorie particulière au sein des énoncés performatifs. L’objectif annoncé de présentation des orientations stratégiques et de dynamisation des équipes s’accompagne d’une mise en scène particulière qui constitue une des conditions de sa félicité, de son accomplissement. Le contexte d’internationalisation et d’interdépendance dans lequel se déroule l’activité des entreprises renforce la stéréotypie de ce langage qui mobilise un format, un vocabulaire et une syntaxe particulière marqués par l’anglicisme et l’asyncticité. Destiné à (...) unifier et à galvaniser les équipes, ce langage est porteur de signes de pouvoir et de distinction, il exclut plus qu’il n’inclut, génère la perplexité et le désarroi et s’inscrit dans une stratégie du flou qui semble être le seul mode contemporain de l’avenir économique. Circulant à l’envi dans la communauté internationale et de la finance qu’il unifie à sa manière, il a une force incantatoire sur la scène financière et médiatique mais un impact paradoxal sur le travail quotidien des hommes et des femmes. Langage de la spéculation et de l’anticipation, il est plus proche des discours de la performance que des énoncés performatifs.Managerial language is a genre in itself and makes up a particular category of performative speech. The stated objective when presenting strategic goals or team building strategies is always dressed up in a particular way that will determine its aptness and success. The context of internationalisation and interdependence in which business activities take place reinforces a stereotype of management-speak, based on a particular format, vocabulary and grammar permeated by anglicisms and lack of syntax. Aimed at unifying and galvanising business teams, « corpu-speak » conveys a sense of power and distinctiveness, suggests exclusiveness rather than inclusiveness, generates bewilderment and anxiety and is very much at one with the strategy of obfuscation that seems to be the sole contemporary register where the economic future is concerned. Circulating freely within the international and finance community and uniting it as it goes, it acts with the hypnotic effect of incantation on the financial and media scene but has a paradoxical impact on the daily working lives of men and women. As the language of speculation and anticipation, it is more akin to performance discourse than to performative speech. (shrink)
Academic careers in French science during the mid-nineteenth century were made within the Université de France, an integrated state system of secondary and higher education controlled by a centralized Parisian educational administration. Among the most respected members of thecorps universitairewere Charles d'Almeida and Pierre Bertin, two historically obscurephysicienswhose significance derives from their substantial contributions to the social organization, teaching and communication of French experimental physics. This two-part comparative biography uses their entwined careers to make a case for the emergence (...) of a discipline of French experimental physics from the corps during the tumultuous politico-cultural transition from the Second Empire to the Third Republic. Of fundamental importance are disciplinary regimes of teaching and inspection within the corps, the foundation of the Société française de physique and theJournal de physique, and the diversification of the traditional pedagogical role of the Ecole normale supérieure, which, from around 1860, began to offer a career pathway for aspiring scientific researchers. Having established in this paper the socio-institutional mechanisms for the stabilization of a distinct field, in part two I characterize the epistemological–methodological aspects of French experimental physics. (shrink)
The fictional regime of the photographic image allows Helena Almeida to stage a theatrical metamorphosis of her own body through displacements, expansions and dissimulations, placing photography at the heart of a pictorial transgression that undermines the disciplinary boundaries of visual media: the artist becomes ink, inhabits the empty canvas space, multiplies herself in mirror games that produce the unfolding of a body in deep crisis, thrown beyond its physical limits and identity. Moreover, in multimedia works such as Feel me, Hear (...) me and See me (1979–1980), as well as in some images of the series entitled The House (1982–1983), Almeida seems to move towards a radical linguistic and pictorial derangement, likely to break the traditional communicative and representative mechanisms. We seek to demonstrate, on the basis of these different aspects relating to photography’s effects of hybridization, and making use of the post-structuralist thought of Jacques Derrida and Gilles Deleuze, that the artist moves towards the designation of a structural space that combines photography, writing and the reinvention of the body. Almeida’s work confronts us with a complex reconfiguration of ways of seeing, feeling and thinking the photographic act, as well as its discursive features. (shrink)
Este trabajo indaga las resemantizaciones del mito de Venus en tres poetas latinoamericanos: Julián del Casal, Rubén Darío y José Lezama Lima teniendo en cuenta la intertextualidad y las poéticas correspondientes. This paper analyses the Venus myth appropiation into the poetry of Julián del Casal, Rubén Darío and José Lezama Lima considering their poetry and intertextuality.
Este artigo é uma tentativa de mostrar, a partir de Gadamer, que o Mito está em estreita relação dialética com o Logos e que a compreensão de ambos pertence a um mesmo movimento circular e hermenêutico, que conecta os conceitos de indeterminado e determinada, incerto e certo, infinitude e finitude.
Este artigo é um diálogo com Hegel e Gadamer, partindo da pergunta: "O que é arte?''. Hegel é um divisor de águas; pode-se dizer que a arte antes de Hegel é uma coisa e depois de Hegel outra. Com Hegel diremos que a arte "morreu" ou foi supra assumida pelo espírito absoluto; se isso não significa morte, é, pelo menos, perda de identidade - de autonomia. Com Gadamer diremos que a arte é arte, sem estar dizendo uma tautologia; pois essa (...) seria a melhor forma de dizer que arte não tem conceito e nem depende de conceito para ser arte; a arte é enquanto tal, sem pendências e sem dependências. (shrink)
Anamnese - a filosofia e o retomo do reprimido, do professor Ernildo Stein, éum conjunto de doze ensaios, publicados em 1997 pela Editora da PUCRS, que nosbrinda com temas da relação Filosofia-Psicanálise, numa linguagem polêmica,associada a um estilo literário e livre. Sendo um livro de ensaios, não há exigênciade uma leitura seqüenciada, nem de conhecimento profundo de filosofia e psicanálise,mas, com certeza, o leitor será naturalmente lançado num campo muitofértil, cujas trilhas de discussão e as notáveis elaborações construídas são umconvite (...) ao estudo dos temas e problemas tratados. (shrink)
Este artigo pretende discutir a universalidadedo problema hermenêutico na perspectivade H. G. Gadamer. O ponto de partida é areviravolta ontológica da hermenêutica realizadapor Heidegger. Por isso, tomando a ontologiafundamental como referência inicial, Gadamerapresenta a historicidade como princípio hermenêuticobásico e descobre na linguagem olugar filosófico por excelência, pois ela é, aomesmo tempo, acontecimento, especulação eabertura. Gadamer considera que no centroespeculativo da linguagem acontece a maisradical experiência humana: a experiência dafinitude.
O objetivo deste artigo é refletir sobre o modo como as lutas locais e suas movimentações em torno do discurso dos direitos humanos podem ser alçadas à condição de ação política. Trata-se da tentativa de ampliar o conceito de política tendo em vista a potência de transformação contida nos coletivos de subjetividades portadoras de experiências comuns de violência e sofrimento. Fazendo uso do conceito de quilombo, em Beatriz Nascimento, buscaremos fundamentar o alargamento da ideia de política a partir de duas (...) configurações: a disputa por territórios e a conectividade entre saberes específicos e menores oriundos das lutas. Para tanto, cotejaremos o pensamento da autora com a filosofia contemporânea de Michel Foucault, Gilles Deleuze e Félix Guattari. Nossa hipótese é a de que o conceito de ação política demandaria um alargamento em sua formulação de modo a abranger as variadas e singulares formas de resistência cotidianas. (shrink)
This study aims to map out the relationships that make up green innovation initiatives in Brazilian industry. The sample comprised 100 managers at manufacturing companies, most of them operating in the business of farm machinery and equipment and steel structures. To develop this study, Medeiros et al. study, mapping critical factors that drive the success of green product innovation and the paradigm of complexity, was used as a reference study. Based on the results, it was possible to identify that the (...) operational dynamic of the factors and variables that affect market success do not happen in an isolated or fragmented way; they occur systematically with different contingencies and structured basic and intermediate skills in order to meet the expectations of consumers, laws, and environmental legislation. Initially, the technological expertise factor was noted as very important for sustaining green product innovation. Furthermore, since proactive leaders are an important factor for successfully developing environmentally sustainable products, it must be added to technological expertise as the foundation for developing green innovation. After defining the basis for green product innovation, the intermediary conditions necessary for using the available technology appropriately were mapped out. In this sense, variables such as “elimination of cultural barriers,” “capacity for critical reflective analysis,” and “experimentation” are also very important. In addition, some of the variables of the cross-functional collaboration and market knowledge factors were a part of the structure that organizations need to transform potential into developing green products, which is the basis for the third level of the model. The fourth level of the model has the “meeting consumer expectations” and “following law and legislation” factors, which make up the main goals for developing environmentally sustainable products according to a number of surveys that were conducted. (shrink)
There is an intriguing recent effort to develop a valid cosmological argument on the basis of quite minimal assumptions.1 Indeed, the basis of the new cosmological argument is so slight that it is likely to make even a conscientious theist suspicious – to say nothing of our vigilant atheists. In Section 1 we present the background assumptions and central premises of the new cosmological argument. We are sympathetic to the conclusion that there necessarily exists an intelligent and powerful creator of (...) the actual universe, but we show in Section 2 that the new cosmological argument cannot establish this claim. Speciﬁcally, we show by reductio ad absurdum that the new argument is unsound, and that every plausibly modiﬁed version of the argument is also unsound.2 We close our discussion with a diagnosis of what went wrong in the new cosmological argument. Our conclusion is that this intriguing new argument promises considerably more than it can show. (shrink)
the objective of this article, making use of the theory of Hannah Arendt, is to show as the disruption with regimes of exception if it effected by means of transistions, of a vision of the politics as confrontation and violence for a model of the consensus and its counterpart was to occult the divergent ways with that the social subjetividades breach with the rational model, overshadowing the interpretations of the memory in the democratic normalization.
This paper analyses the gender pay determinants between top and lower level of Portuguese employees. A relatively large data pool, for 2003, covering business functions hitherto neglected, sheds a new light into the factors that lead to the earnings of men and women. Our analysis combines human capital with internal-labour-markets theories. Our findings allow the identification of jobsegregation as one important source of the gender pay gap. Moreover, they confirm that earnings are determined by different factors and suggest a reasonable (...) opportunity for women to combine career and family. (shrink)