This book demonstrates how legal realism offers important and unique jurisprudential insights that are not just a part of legal history, but are also relevant and useful for a contemporary understanding of legal theory.

ABSTRACTThis article develops a theory of just contractual relationships for a liberal society. As a liberal theory, our account is premised on liberalism's canonical commitments to self-determination and substantive equality. As a theory of contract law, it focuses on the parties’ interpersonal interactions rather than on the justice of the social order as a whole.Normatively, the article claims that the rules governing cases where one party experiences harsh circumstances or vulnerability during the bargaining process or operates under significant informational disadvantage (...) must be guided by the commitment to relational justice, that is, to reciprocal respect for self-determination and substantive equality. Jurisprudentially, the article studies the systemic difficulties hindering the translation of these normative prescriptions into legal language and analyzes how they affect the form assumed by the law of precontractual justice and its institutional pedigree. (shrink)

This article focuses on cases of restitution within contract, investigating the normative desirability of enabling a promise to pursue the profits derived by the promisor through a breach of contract as an alternative pecuniary remedy of wide applicability. Situated at the frontier of both contractual and restitutionary liability, the question of whether restitutionary damages for breach of contract should be available has received a considerable amount of attention. This article makes a critical examination of the normative groundings that have been (...) proposed for and against awarding this pecuniary remedy. This article arrives at two significant conclusions. The first is deconstructive. Parts I and II critique two conventional arguments often raised in the debate over restitutionary damages. These Parts raise doubts as to the ability of these arguments to substantiate the doctrinal conclusions they purport to support. I claim that both promise-keeping and unjust enrichment are neutral between rules offering restitutionary damages and denying such awards. The significance of the results of this analysis extends beyond the specific questions at hand, since these arguments dominate many of the debates surrounding private law theory. The second conclusion reached is reconstructive. Parts III, IV and V present three normative considerations that are more helpful: protection of proprietary rights, enhancement of efficiency, and good faith. Here an attempt is made to reconceptualize the conventional arguments for the derivation of legal rules from these normative prescriptions. From this reconceptualization, we realize that in order to settle the debate over restitutionary damages for breach of contract, a choice must be made between the instrumental conception of contract and its more cooperative alternative. Thus, it emerges that here, too, just as in the case of many other legal issues, the persistent need to choose between two conflicting social visions cannot be avoided. (shrink)

Volume 13, Issue 4, December 2022, Page 668-688.

In ‘The Choice Theory of Contracts’, we advance a claim about the centrality of autonomy to contract. Since publishing Choice Theory, we have engaged dozens of reviews and responses; here, we reply to Robert Stevens, Arthur Ripstein, and Brian Bix. All this rigorous debate confirms for us one core point: contract’s ultimate value must be autonomy, properly understood and refined. Autonomy is the telos of contract and its grounding principle. In Choice Theory, we stressed the proactive facilitation component of autonomy, (...) in particular, the state’s obligation regarding contract types. Here, we highlight two additional, necessary implications of autonomy for contract: regard for future selves and relational justice. These three aspects of autonomy shape the range, limit, and floor, respectively, for the legitimate use of contract. They provide a principled and constrained path for law reform. (shrink)

Volume 10, Issue 3, September 2019, Page 422-433.

Modern contract law accords considerable significance to the basic assumptions on which a contract is made. It thus takes to heart a failure of a belief whose truthfulness is taken for granted by both parties. Where the failure results from the parties’ mistake at the time of formation, “the contract is voidable by the adversely affected party,” if that mistake “has a material effect on the agreed exchange of performances” and unless that party “bears the risk of the mistake.”1 Where, (...) in turn, the failure of such a basic assumption results from the parties’ erroneous beliefs about future states of the world, a party’s duty to render performance may be discharged if they are not responsible for the supervening impracticability or frustration and “unless the language or the circumstances indicate the contrary.”2. (shrink)

Property enhances autonomy for most people, but not for all. Because it both empowers and disables, property requires constant vigilance. A Liberal Theory of Property addresses key questions: how can property be justified? What core values should property law advance, and how do those values interrelate? How is a liberal state obligated to act when shaping property law? In a liberal polity, the primary commitment to individual autonomy dominates the justification of property, founding it on three pillars: carefully delineated private (...) authority, structural pluralism, and relational justice. A genuinely liberal property law meets the legitimacy challenge confronting property by expanding people's opportunities for individual and collective self-determination while carefully restricting their options of interpersonal domination. The book shows how the three pillars of liberal property account for core features of existing property systems, provide a normative vocabulary for evaluating central doctrines, and offer directions for urgent reforms. (shrink)

This article argues that contemporary accounts of justice miss a relational dimension of justice, which focuses on the terms private individuals’ interactions must meet for them to constitute relationships among equal, self-determining persons. The article develops the argument that the justice requirement to respect others as substantively free and equal individuals can sometimes be adequately discharged only if the relevant private persons are held responsible for its realization. It further elaborates the normative framework of relational justice to explain the generic (...) structure, content, and scope of such a requirement. (shrink)

In “The Choice Theory of Contracts,” we explain contractual freedom and celebrate the plurality of contract types. Here, we reply to critics by refining choice theory and showing how it fits and shapes what we term the “Contract Canon”. I. Freedom. (1) Charles Fried challenges our account of Kantian autonomy, but his views, we show, largely converge with choice theory. (2) Nathan Oman argues for a commerce-enhancing account of autonomy. We counter that he arbitrarily slights noncommercial spheres central to human (...) interaction. (3) Yitzhak Benbaji suggests that choice theory’s commitment to autonomy is overly perfectionist. Happily, in response to Benbaji, we can cite with approval Charles Fried’s point that contract types are “enabling our liberties.” II. Choice. (4) Aditi Bagchi criticizes our inattention to impediments to choice. We show how choice theory’s commitments to both multiplicity and relational justice ameliorate these impediments. (5) Gregory Klass explores parol evidence to highlight the mechanisms of choice. We substantially concur with his position, and show how such mechanisms can ensure voluntariness, an essential element of choice. (6) Oren Bar-Gill and Clayton Gillette question the institutional capacity of existing legal actors to implement choice theory. Working from the example of cohabitation, we offer a somewhat more optimistic view. III. Contracts. (7) Peter Benson contends our focus on the rational slights the reasonable. Although we did not use this Rawlsian vocabulary, choice theory complies with its strictures — more so than transfer theory. (8) Daniel Markovits and Alan Schwartz claim provocatively that contract theory must: capitulate before pluralism (as they endorse); leverage it; or fall victim to a so-called “embracing” approach (their charge against us). We reject the charge that choice theory is foundationally value-pluralist. Instead, we cabin pluralism and put it to work. (9) The Contract Canon starts on the next big step for choice theory by explaining existing doctrine (rebutting Benson on lack of fit) and helping adjudicate contract practice (countering Markovits and Schwartz on the vices of our pluralism). Each Article in this Issue advances the field; each prompts us to refine choice theory — all steps, we hope, toward a more just and justified law of contract. (shrink)

For private property to be legitimately recognized as a universal human right, its meaning should pass the test of self-imposability by an end. In this Essay, we argue, negatively, that the prevailing understanding of private property cannot plausibly meet this demanding standard; and develop, affirmatively, a liberal conception which has a much better prospect of meeting property’s justificatory challenge. Private property, on our account, is an empowering device, which is crucial both to people’s personal autonomy and to their relational equality. (...) The liberal conception of the human right to property has both vertical and horizontal significance — it implies respect from both the public authority and other individuals — which means that it is thoroughly political but not necessarily statist. Our account generates important implications, both domestic and transnational. Domestically, it implies that whereas some property rights should be subject to strong constitutional protection, state law should facilitate other types of private and non-private property institutions, and these property institutions may well be subject to non-owners’ claims to access and, more broadly, to being treated respectfully. Furthermore, our conception of the human right to property requires that everyone have the unusual authority typical of full-blown private ownership. Transnationally, our analysis highlights a freestanding dimension of relational justice, which is relevant across borders even given that our distributive obligations are statist. This injunction of relational justice in transnational interactions brings into question the adequacy of the current state of the law, according to which these interactions are mainly governed by choice-of-law rules that conceptualize them as wholly subsumed under the capacities of the parties as citizens of their respective polities. (shrink)

Contract and employment law have grown apart. Long ago, each side gave up on the other. In this Article, we reunite them to the betterment of both. In brief, we demonstrate the emancipatory potential of contract for the law of work. Today, the dominant contract theories assume a widget transaction between substantively equal parties. If this were an accurate description of what contract is, then contract law would be right to expel workers. Worker protections would indeed be better regulated by—and (...) relegated to—employment and labor law. But contract law is not what contract theorists claim. Neither is contract law what the dominant employment theorists fear—a domain that necessarily misses the constitutive place of work in people’s life-plans and overlooks the systemic vulnerability of workers to their employers. Contract, we contend, is not work law’s canonical “other.” Rightly understood, contract is an autonomy-enhancing device, one founded on the fundamental liberal commitment of reciprocal respect for self-determination. From this “choice theory” perspective, the presumed opposition between employment and contract law dissolves. We show that many employment law doctrines are not external to contract, but are instead entailed in liberal contract itself. Grounding worker protections in contract theory has two salutary effects. First, it offers workers more secure protection than that afforded by their reliance on momentary public-law compromises. Second, it reveals contract’s emancipatory potential for all of us—not just as workers, but also as widget buyers. Contract can empower, and employment can show the way. (shrink)

Property concerns conflicts — both conflicts between individuals and conflicts of interest. Conflicts between individuals have long been the paradigmatic property focus. According to this view, property debates circle around issues of autonomy and productive competition. But this is an impoverished view. In this Article, we shift attention to conflicts of interest. By helping people manage conflicts of interest, a well-governed property system balances interdependence with autonomy and productive cooperation with productive competition. We identify three mechanisms woven throughout property law (...) that help manage conflicts of interest: internalization of externalities; democratization of management; and de-escalation of transactions. We show that property law predictably selects among these mechanisms depending on the ratio of economic to social benefits that people seek from a group resource. When economic concerns predominate, property law typically uses contribution-based allocations of rights and responsibilities mediated by formal, foreground procedures, while at the social end of the spectrum we tend to see more egalitarian substantive rules operating as an informal, background safety net. (shrink)

Searle's Chinese Room was supposed to prove that computers can't understand: the man in the room, following, like a computer, syntactical rules alone, though indistinguishable from a genuine Chinese speaker, doesn't understand a word. But such a room is impossible: the man won't be able to respond correctly to questions like What is the time?, even though such an ability is indispensable for a genuine Chinese speaker. Several ways to provide the room with the required ability are considered, and it (...) is concluded that for each of these the room will have understanding. Hence, Searle's argument is invalid. (shrink)

This paper explores the contribution by the contemporary legal realist Hanoch Dagan. Dagan’s brand of realism defines law on the basis of its institutions or social practices, not of its norms or rules. The paper first provides a critical overview of this realist theory of law: It is not synonymous with the predictive theory of law, with Leiter’s theory of judges, or Frank’s “breakfast theory”. By focusing on the role of judges and the methodology of legal reasoning, (...) we discover that the core difference between realism and positivism lies in the claim that law is affected by a strong form of indeterminacy, stemming from the plurality of legal sources, not from the open texture of legal language as expressed in rules; and we are also able to distinguish this form of realism from contemporary movements in legal theory, such as critical legal studies and law & economics. The normative dimension of realism is also addressed: This theory of law develops a specific concept of justice, on the ground of a cognitivist theory of value. (shrink)

This Article challenges Hanoch Dagan and Michael Heller’s choice theory of contract, according to which contract law is autonomy-enhancing. I make three points: first, the choice theory of contract cannot clarify the critical normative distinction between enforceable formal contracts and unenforceable informal promises. Second, I develop the roads/contract-types analogy: instead of promoting individuals’ autonomy and enhancing their choice among different projects, most contract types are justified by the preexisting preferences of citizens. Finally, I outline a teleological justification of (...) contract law that is different from that propounded by Dagan and Heller. On this view, contract law should remain neutral as to which conception of the good is commendable and provide individuals with the means of shaping and pursuing a conception of a good life. (shrink)

While the roots of the common law of restitution reach back hundreds of years, the idea that it constitutes a domain of private law was first clearly articulated in the American Law Institute’s Restatement of Restitution in 1932. The U.S. was at the forefront of development in the law of restitution but interest has declined. Recently John Langbein offered an explanation, first in terms of law and economics and then through legal realism. Realism, by Langbein’s estimation, has exacted “a terrible (...) toll” on doctrinal study in the postwar period. One of the principal aims of The Law and Ethics of Restitution, Hanoch Dagan writes, is to disprove this claim. Realism, properly understood, is supportive of doctrine and, he argues, in this context, provides a better account of the law than the prevailing view. This book is a challenging and important work not only in the law of restitution but also in legal theory. My main interest in this Critical Notice is to ask whether the kind of justification for liability in restitution Dagan offers is compelling. While part of what separates Dagan from Langbein is their understanding of legal realism, I take Dagan to be right on this point, and ask whether he’s made the case in favour of a realist account of restitution. I do that by considering two examples of the doctrinal analyses that form the bulk of the book: first by outlining a pair of issues on which Dagan takes a position by setting up the question he aims to ask, and then by considering his rejection of the view to which>The Law and Ethics of Restitutionoffers an alternative. (shrink)

Liberalism’s concern with human freedom seems related to contractual freedom and thus contract law. There are, however, many strands of liberal thought and which of them best justifies contract is a difficult question. In The Choice Theory of Contracts, Hanoch Dagan and Michael Heller offer a vision of contract based on autonomy. Drawing on the work of Joseph Raz, they argue that extending autonomy should be the law’s primary concern, which requires that we extend the range of contractual (...) choices available. While there is much to admire in their work, I argue that autonomy as conceived by Dagan and Heller cannot justify contract law. First, there are reasons to doubt the coherence of autonomy as an ideal. Second, given the pluralism of liberal societies, which, for example, often include substantial numbers of religious believers who reject core assumptions of autonomy theory, it is doubtful that such a theory can legitimate contract law. A more modest version of liberalism concerned primarily with protection against cruelty and providing a modus vivendi in pluralistic societies is more tenable. Such a vision of liberalism yields a more modest vision of contract law. Rather than making it into another means of realizing the dream of a more autonomous self, it is enough that contract law facilitates commerce and the marketplace. Markets in turn can serve an important — albeit limited — role in sustaining the peaceful cooperation and coexistence toward which a more realistic liberalism should aim. (shrink)

In this Article, I contest on both theoretical and empirical grounds the progressive agenda, as represented by Hanoch Dagan, that seeks to advance the unionization movement in the name of individual autonomy and property. Theoretically, the Article shows that the common-law account of autonomy, which stresses freedom of action from external constraints involving the use or threat of force, provides the best analytical framework, one that undermines the modern progressive case for collective bargaining by workers. The negative account (...) of autonomy applies to all persons; its correlative duties are simple. It applies regardless of the overall level or distribution of wealth. It is scalable from small to large societies. And it forces employers to respect the full range of material and psychological needs in order to recruit and retain their workers. In contrast, the modern progressive alternative imposes no clear correlative duties on employers. It has no obvious way to constrain the dominance of union forces. And its commands are sufficiently complex that they are often not understood by the workers whom they are intended to protect. Empirically, this Article shows that the institutional rigidity of union structures in dynamic markets fails; and it rejects the claim that individual workers are wedded to their current employer, given competitive forces that allow for rapid entry and exit. Given the long-term systematic advantages of the classical liberal model, it is no surprise that unions are generally in decline in major industrial societies. (shrink)

Private law theory must confront the plurality of values that inform the problems that private law addresses in practice. We consider Hanoch Dagan’s and Michael Heller’s The Choice Theory of Contracts as a case-study in the promise and perils that embracing plural values poses for private law theory. We begin by arguing that private law theory cannot ignore value pluralism and identify three approaches that theory might take to pluralism. We call these approaches capitulating to, leveraging, and embracing (...) value pluralism. We illustrate each approach and assess its strengths and weaknesses. Theories that capitulate to pluralism simultaneously limit their scope and hamper their persuasiveness even within their restricted domains. Theories that leverage pluralism limit their domains more dramatically still. And theories that embrace pluralism are difficult to operationalize in practice without abandoning their pluralist roots. We briefly illustrate the drawbacks of capitulating to and leveraging pluralism with examples from recent contract theory. We then take up theories that embrace pluralism in greater detail, by studying Dagan and Heller’s approach. We argue that Dagan and Heller do not solve the deep problems that operationalizing their embrace of pluralism inevitably engenders. (shrink)

This Article contrasts two views of the relationship between the fields of work law and private law. The “internal” view, propounded by Hanoch Dagan, would bring work law into the domain of private law by recentering the latter, including property law, around liberal values of reciprocal respect for autonomy. The “external” view locates the law of work in an overlapping but distinct domain that we might call “social law,” where it operates as a set of externally imposed conditions (...) on the activity of employing others. When workers’ rights and interests come into conflict with those of owner-employers, the two views face off on the constitutional terrain of takings. In principle, the internal view might afford a better defense against takings challenges to laws that constrain property owners’ entitlements in the interest of those who work there, for it would redefine the former to reflect the latter. The external view relies more on takings law than property law to accommodate others’ interests when they conflict with traditional property rights. Unfortunately, the U.S. Supreme Court’s recent decision in Cedar Point Nurseries v. Hassid deals a heavy blow to both views. Its neo-Blackstonian conception of property rights rejects the notion that property law itself recognizes workers’ interests and entrenches that conception of property rights within the constitutional law of takings, sharpening the takings sword against social law’s regulation of property rights in the interest of others, including workers. Cedar Point thus underscores and magnifies the challenges that modern U.S. takings law, with its constitutional definition of property rights, poses to the advancement of workers’ rights, whether those are understood as internal or external to property law. (shrink)

In The Choice Theory of Contracts, Hanoch Dagan and Michael Heller state that by arguing “that autonomy matters centrally to contract,” Contract as Promise makes an “enduring contribution... but [its] specific arguments faltered because [they] missed the role of diverse contract types and because [it] grounded contractual freedom in a flawed rights-based view.... We can now say all rights-based arguments for contractual autonomy have failed.” The authors conclude that their proposed choice theory “approach returns analysis to the mainstream (...) of twentieth-century liberalism – a tradition concerned with enhancing self-determination that is mostly absent in contract theory today.” Perhaps the signal flaw in Contract as Promise they sought to address was the homogenization of all contract types under a single paradigm. In this Article, I defend the promise principle as the appropriate paradigm for the regime of contract law. Along the way I defend the Kantian account of this subject, while acknowledging that state enforcement necessarily introduces elements — both normative and institutional — for which that paradigm fails adequately to account. Of particular interest and validity is Dagan and Heller’s discussion of contract types, to which the law has always and inevitably recurred. They show how this apparent constraint on contractual freedom actually enhances freedom to contract. I discuss what I have learned from their discussion: that choice like languages, is “lumpy,” so that realistically choices must be made between and framed within available types, off the rack, as it were, and not bespoke on each occasion. I do ask as well how these types come into being mutate, and can be deliberately adapted to changing circumstances. (shrink)

Scholars have to date paid relatively little attention to the rules for deciding when a writing is integrated. These integration rules, however, are as dark and full of subtle difficulties as are other parts of parol evidence rules. As a way of thinking about Hanoch Dagan and Michael Heller’s The Choice Theory of Contracts, this Article suggests we would do better with tailored integration rules for two transaction types. In negotiated contracts between firms, courts should apply a hard (...) express integration rule, requiring firms to say when they intend a writing to be integrated. In consumer contracts, standard terms should automatically be integrated against consumer-side communications, and never integrated against a business’s communications. The argument for each rule rests on the ways parties make and express contractual choices in these types of transactions. Whereas Dagan and Heller emphasize the different values at stake in different spheres of contracting, differences among parties’ capacities for choice — or the “mechanics of choice” — are at least as important. (shrink)

Absent mistake or misrepresentation, most scholars assume that parties who agree to contract do so voluntarily. Scholars tend further to regard that choice as an important exercise in moral agency. Hanoch Dagan and Michael Heller are right to question the quality of our choices. Where the fundamental contours of the transaction are legally determined, parties have little opportunity to exercise autonomous choice over the terms on which they deal with others. To the extent that our choices in contract (...) do not reflect our individual moral constitutions — our values, virtues, vices, the set of reasons we reject and the set of reasons we endorse — we are not justified in regulating contracts reluctantly. Contracts are entitled to the privilege of liberal regulatory deference only to the extent that they are the work product of individual autonomy. The assumption that contract is voluntary does enormous work in most normative theories of contract. This Article takes still more seriously the obstacles to autonomous choice that contracting parties face. The most important constraints are not in contract law itself but in the material and moral imperatives that dictate parties’ contracting preferences. Many contracts are driven by circumstantial considerations or actual background obligations. While these contracts are not wholly lacking in the element of voluntariness, we should distinguish them from those choices — and those contracts — which more fully realize our potential to self-consciously author our relations with others. Autonomous choice in contract requires more than Dagan and Heller imply, and it is likely beyond the power of contract law standing alone to deliver it. (shrink)

Cette contribution témoigne de l’importance de la réception de la phénoménologie de langue française en Amérique Latine. En revisitant la thèse de la duplicité de l’apparaître – apparaître de la vie comme affect et comme force, apparaître du monde comme sens et distance –, Roberto J. Walton s’attache au concept fondamental de la phénoménologie de la vie, en mettant en avant des modalités dans lesquelles l’auto-affection opère sans hétéro-affection d’une manière avérée. Il précise d’emblée que cette auto-affection sans hétéro-affection est (...) définie par deux aspects : un premier « aspect de base » – ou rapport de fondation – en vertu duquel l’auto-affection est la condition de possibilité de toute intentionnalité ou ek-stase ; et un deuxième aspect « d’intensification ou d’excédence » qui renvoie à la phénoménologie de l’événement, en ceci que l’auto-affection y apparaît dans une sorte de plus-value, c’est-à-dire dans la condition de l’acte comme accroissement créateur. (shrink)

Bart Streumer employs a reductio ad absurdum to show that a hyperintensional conception of properties has a multiplication problem; roughly, this conception of properties leads to the absurd result that we can multiply distinct but co-intensional properties without end. In this paper, I will explain why Streumer’s reductio fails to convince.

In lieu of an abstract, here is a brief excerpt of the content:570 BOOK REVIEWS like reasonable rule for economic life. This effort is worthy of more attention than is possible here, but let it be noted that it must inevitably suffer the same fate as any ethical calculus: someone must decide for others what is their due and what is not. How much wealth, for example, makes for a concentration [of wealth] that would be " demonstrably detrimental to some (...) people's exercise of their generic rights "? His is ultimately an entitlement or rights ethic, rather than an aitial ethic of goal-purposive fulfillment for the individual, projected outwards for a common good scenario. While his rejection of goal ethics's inability to detail principles for distribution of goods is noteworthy, it does not appear that a tightened version of generic rights theory will come closer to either of Phillips's desiderata: a justification of moral reasoning apart from any theory of nature or a calculus for its application. Desan and Phillips wish to think against the limits of the human situation. For Desan, rising above limitation is a moral task and obligation facing us each, if there is to be a common future. His call is to be World Citizen in a Polis of Nations. Phillips's vision is more concrete, a distribution of benefits to benefit all with well-being and freedom. But this mundane task is no less difficult than Desan's transcendent one. Indeed, according to Augustine, even the Divine Mind must utilize an artifice in dealing with human creation: "He loves each of us as though there were only one of us." Both ethicists have striven to show us how we might think this vision for ourselves, i.e., for each other of us. ]OIIN B. DAVIS, O.P. ' Detroit, Michigan Catholics, Anglicans, and Puritans: Seventeenth-Century Essays. By HUGH TREVOR-ROPER. Chicago: The University of Chicago Press, 1988. Pp. xiii + 317. $27.50 (hardbound). Even to list the changes and events which occurred in seventeenth century England is a difficult task: the century spans the period from the death of Queen Elizabeth to the Glorious Revolution and beyond, through the Civil War, the accession and exile (twice) of the Stuarts, the rise of science, the transformation of the theological and religious issues of the English Reformation, to name only the most obvious. To conceive a book, in the form of occasional essays, which not only addresses these changes and events but does so by establishing the connections which were present with European currents at the same time surely tempts fate, even when it does not tempt reviewers. BOOK REVIEWS 571 But Hugh Trevor-Roper is a master, both of the period under survey and of the form of the essay. With one exception, each of these essays began as a lecture or seminar paper, and the pleasantly legible style in which they are written must bear some trace of that origin. The occasional flashes of wit, mixed with rthe fairly non-technical style, make the book a joy to read and a welcome escape from the usually constipated style of scholarly prose. In his Introduction, the essayist clearly sets forth his thesis that English intellectual history does not exist apart from the currents of European intellectual history (a thesis for which Trevor-Roper has already staked a claim). That leads to what may very well be the major problem with these essays: its end is in its beginning. The list of names cited in these essays only partially coincides with the list of names in the index; the former is much longer than the latter. And while the style of the essay welcomes the reader to the period, it also throws up more names and places and events than can be explained or even annotated adequately. This occurs both on a large and on a small scale. The first essay, on "Nicholas Hill, the English Atomist" contains such a vast array of names that at times it becomes the prosopo· graphical equivalent of a telephone book. On a large scale, there is the problem with a definition of Arminianism. No definition, at least no formal definition, is attempted-and this is probably wise. But, particularly in... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Call for New Theological Reflection on the Sacramental Character of Marriage and the Thought of St. ThomasLawrence J. WelchTheologians across the theological spectrum have called attention to the urgent need for a new reflection on the theological and sacramental character of marriage. Peter Hünermann, known for his strong criticism of magisterial teachings on marriage, and the late Cardinal Carlo Caffarra, known for his equally strong defense of them, (...) have both drawn attention to this need. At an international symposium in September 2015, held in Rome prior to the Ordinary Synod of Bishops on Marriage and the Family, Hünermann gave a presentation entitled "On the Specific Theological Character of the Sacrament of Matrimony."1 The symposium aimed at providing a critical and scholarly discussion of new and constructive perspectives for the Church doctrine on marriage and family life in time for the 2015 synod on the family.2 Some of Hünermann's work from this paper also came to be known from an interview in Commonweal magazine where he summarized some of the main points of his symposium presentation.3 In the interview, he also revealed that before the 2015 synod he [End Page 845] was invited to speak with Pope Francis about the theology of marriage. Understandably, this meeting heightened interest in the German theologian's thought.Hünermann argues that "the specific character of the sacrament of marriage, which is very closely connected to the dying of the marriage bond,... has scarcely been the object of theological reflection, [and] is almost unknown in the consciousness of the bishops." 4 Hünermann appeals to St. Thomas as a way forward for understanding the theological character of marriage. This appeal is situated within a wider examination5 that offers an elaboration and new interpretation of "the specific dogmatic characteristics of the sacrament of matrimony that emerge in today's situation from a critical comparison of the encyclical Casti connubii and the Catholic theological tradition, especially the theology of St. Thomas."6 Sharply critical of the encyclical, Hünermann sees it as having saddled the Church with a legalistic concept of marriage elevated above history that is too far removed from the Catholic theological tradition and St. Thomas's theology of marriage.The year before his death, Cardinal Caffarra gave the 2016 graduation address at the John Paul II Institute for Marriage and Family in Washington, DC.7 Among the challenges he identified for the institute to address was the [End Page 846] need for theological reflection on the sacramental character of marriage. Referring to his earlier work, he pointed out that theology after the Council of Trent "lost the awareness of sacramental ontology, of the real transformation produced by the sacrament in the persons of the spouses [res et sacramentum]."8 Furthermore, according to Caffarra, the "theology of the conjugal covenant was supplanted by the notion of a contract, as a human act by which two persons commit to one another." The sacramental character was thought of as consisting of the assurance of divine graces given to fulfill the contract. Caffarra claimed that, "consequently, the words of Jesus 'What God has joined together, let not man put asunder,' lost all their realistic force. Absolute indissolubility, once the sacrament was perfected [=a ratified, consummated marriage], became essentially indefensible."9The primary interest of this paper is to respond to the call for a renewed theological reflection on the specific character of the sacrament of marriage. I wish to take up Caffarra's suggestion to focus on the sacramental character (res et sacramentum) on the one hand, and on the other hand, Hünermann's suggestion that a kind of ressourcement from St. Thomas Aquinas's theology of marriage can be of great help for a fresh theological reflection on the specific character of the sacrament of marriage. Although I agree with Hünermann that a renewed consideration of the thought of St. Thomas can be a way forward, I differ from him on how it can be. Hünermann notices that St. Thomas speaks of the grace of the sacrament of marriage as a helping grace.10 St. Thomas does indeed speak this way of the... (shrink)

In Revering God, author and scholar Thaddeus Williams bridges the gap between abstract theology and awe-inspired devotion, helping readers better understand God and drawing them into a deeper state of joy and reverence for their Creator.

The grammatical manipulation and production of language is a great deceiver. We have become habituated to accept the use of well-constructed language to indicate intelligence, understanding and, consequently, intention, whether conscious or unconscious. But we are not always right to do so, and certainly not in the case of large language models (LLMs) like ChapGPT, GPT-4, LLaMA, and Google Bard. This is a perennial problem, but when one understands why it occurs, it ceases to be surprising that it so stubbornly (...) persists. This paper will have three main sections. In the Introduction I will say a little about language, its aetiology, and useful sub-divisions into natural and cultural. In the second section I will explain the current situation with regard to large language models and fill in the background debates which set the problem up as one of increased complexity rather than one of a qualitatively different kind from narrow or specific AI. In the third section I will present the case for the missing phenomenological background and why it is necessary for the co-creation of shared meaning in both natural and cultural language, and I will conclude this section by presenting a rationale for why this situation arises and will continue to arise. Before we do any of this, I need to clarify one point: I do not wish to challenge the ascription of artificial general intelligence (AGI) to LLMs, indeed I think agnosticism is best in this respect, but I do challenge the more serious, and erroneous, ascription of understanding, intention, reason, and consciousness to them. And so, I am making two points: an epistemological one about why we fall into error in our ascription of a mental life to LLMs, and an ontological one about the impossibility of LLMs being or becoming conscious. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Deification through the Cross:Reflections from an Implied Ideal WorshiperAndrew J. SummersonKhaled Anatolios's most recent book, Deification through the Cross,1 develops a definition of salvation out of his experience of the Byzantine liturgy. This experience of worship offers an immersion in what he calls "doxological contrition." By this, Anatolios means that Christ saves us by offering us the ability to participate in the mutual glorification of the persons of the (...) Holy Trinity by vicariously repenting for our sins. For Anatolios, this objective content is subjectively appropriated in Byzantine Christian worship. To explore this theme, Anatolios develops a working account of "doxological contrition" through a synthetic discussion of the Lenten Triodion and Pentecostarion, books of liturgical hymnography that govern the Byzantine worship from Lent to Pentecost. Anatolios derives his approach from the adaption of reader response theory, which aims to expose the effect a text should have on the "implied ideal reader." As such, his account speaks from the perspective of the "implied ideal worshiper"—presumably a theologically educated congregant who can seize these themes that evaporate into the ether as quickly as incense swung throughout the church during the services.Let me say from the outset, I heartily recommend Anatolios's book. It is both an ambitious work and a rewarding read. Ambitious because Anatolios's approach makes otherwise fragmented theological disciplines—liturgical [End Page 1089] studies, Scripture, historical theology, and systematics—fruitful dialogue partners in his exposition of a working account of the Christian experience of salvation. Rewarding because the reader can explore in depth the touchstones of the Christian tradition through Anatolios's deep retrieval of a more coherent soteriology. Deification of the Cross demonstrates the perennial value of historical theology to correctly account for the "half-forgotten, half misunderstood" details of the Christian tradition in the face of caricatures that at best misrepresent and at worst present an idolatrous, counterfeit Christianity.Eastern Christian Liturgy and RevelationPerhaps I am not Anatolios's ideal audience; I may be too close to the source material and lack objectivity. That aside, the bulk of my reflections on this book comes from the perspective of an "implied ideal worshiper." I do share some of Anatolios starting points. Like Anatolios, I am a convert, scholar, and Eastern Catholic priest. Furthermore, I also share the discontent with which Anatolios begins his book, though perhaps for different reasons. He bemoans a loss of the experience of salvation. My own vocation as priest and scholar comes out of a frustrated wonder. As a college student, I set out to learn about this Church and its Tradition. I learned about the Sunday experience I was supposed be having. It was in university when I read for the first time John Paul II's 1995 apostolic letter Orientale Lumen, written to acquaint the wider Catholic Church with the riches of the Christian East. John Paul II dedicated much reflection to the "genius of Eastern liturgy," emphasizing its power to envelop all our human senses into the fullness of the mystery of God. It is worth quoting in full:Within this framework, liturgical prayer in the East shows a great aptitude for involving the human person in his or her totality: the mystery is sung in the loftiness of its content, but also in the warmth of the sentiments it awakens in the heart of redeemed humanity. In the sacred act, even bodiliness is summoned to praise, and beauty, which in the East is one of the best loved names expressing the divine harmony and the model of humanity transfigured, appears everywhere: in the shape of the church, in the sounds, in the colors, in the lights, in the scents. The lengthy duration of the celebrations, the repeated invocations, everything expresses gradual identification with the mystery celebrated with one's whole person. Thus the prayer of the Church already becomes participation in the heavenly liturgy, an anticipation of the final beatitude.(§11) [End Page 1090]The experience of this liturgy has been quite potent throughout history. It led to the baptism of the entire kingdom of Rus' in 988 AD. As the story goes, its ruler, Vladimir the Great, sent emissaries to find a... (shrink)

Protein post‐translational modifications (PTMs) play a crucial role in all cellular functions by regulating protein activity, interactions and half‐life. Despite the enormous diversity of modifications, various PTM systems show parallels in their chemical and catalytic underpinnings. Here, focussing on modifications that involve the addition of new elements to amino‐acid sidechains, I describe historical milestones and fundamental concepts that support the current understanding of PTMs. The historical survey covers selected key research programmes, including the study of protein phosphorylation as a regulatory (...) switch, protein ubiquitylation as a degradation signal and histone modifications as a functional code. The contribution of crucial techniques for studying PTMs is also discussed. The central part of the essay explores shared chemical principles and catalytic strategies observed across diverse PTM systems, together with mechanisms of substrate selection, the reversibility of PTMs by erasers and the recognition of PTMs by reader domains. Similarities in the basic chemical mechanism are highlighted and their implications are discussed. The final part is dedicated to the evolutionary trajectories of PTM systems, beginning with their possible emergence in the context of rivalry in the prokaryotic world. Together, the essay provides a unified perspective on the diverse world of major protein modifications. (shrink)

A textbook for the undergraduate who is meeting the Lebesgue integral for the first time, relating it to the calculus and exploring its properties before deducing the consequent notions of measurable functions and measure.

Your God is too small—way too small! What if God is not a human-like personal being but the God Beyond God of the Christian mystical traditions? What if God is the ultimate reality beyond all beings, including beyond all divine beings, indeed beyond all Being? It’s a mind-bending idea. Speaking of God as a human-like personal being is much easier but people who care about the deepest mystical understandings of God within our traditions need to make the effort to speak (...) about the God Beyond God, despite the difficulties. This book makes the attempt to speak of the God Beyond God in the language of the sermon, using metaphor and potent imagery tuned to the existential intensities of human life. The God Beyond God is closer to us than our jugular veins, vividly present in every moment of our lives. These sermons are practical and moving, and they also resonate with the most rigorous theological understandings of ultimate reality. Their deconstruction of our convenient fantasies about a divine being make these sermons emotionally intense and perhaps not suitable for beginners in the journey of faith. But veteran believers can breathe deeply in the air of these meditations, relaxing into the bliss of engaging ultimate reality without delusions, without deflections, and without controlling the object of our worship. (shrink)

Abstract:This essay places the writings of John Lachs in the tradition of classical American philosophy through an appreciative and critical analysis of several central ideas: pluralism, individualism, mediation, meddling, the cost of comfort, and Stoic pragmatism. I focus on the need to move pluralism from the conceptual to practical realm, and on the need for a less self-contained, libertarian, and ultimately Romantic form of individualism. I also stress the importance of viewing philosophies as personal expressions of temperament.