Statistical learning enables humans to involuntarily process and utilize different kinds of patterns from the environment. However, the cognitive mechanisms underlying the simultaneous acquisition of multiple regularities from different perceptual modalities remain unclear. A novel multidimensional serial reaction time task was developed to test 40 participants’ ability to learn simple first‐order and complex second‐order relations between uni‐modal visual and cross‐modal audio‐visual stimuli. Using the difference in reaction times between sequenced and random stimuli as the index of domain‐general statistical learning, a (...) significant difference and dissociation of learning occurred between the initial and final learning phases. Furthermore, we used a negative and positive occurrence‐frequency‐and‐reaction‐time correlation to indicate implicit and explicit learning, respectively, and found that learning simple uni‐modal patterns involved an implicit‐to‐explicit segue, while acquiring complex cross‐modal patterns required an explicit‐to‐implicit segue, resulting in a X‐shape crossing of regularity learning. Thus, we propose an X‐way hypothesis to elucidate the dynamic interplay between the implicit and explicit systems at two distinct stages when acquiring various regularities in a multidimensional probability space. (shrink)

Congress's national-security legislation will often require clear and specific congressional authorization before the executive can undertake certain actions. The War Powers Resolution, for example, prohibits any law from authorizing military hostilities unless it "specifically authorizes" them. And the Foreign Intelligence Surveillance Act of 1978 required laws to amend FISA or repeal its "exclusive means" provision before they could authorize warrantless electronic surveillance. But efforts to legislate clear-statement regimes in national-security law have failed to induce compliance. The Clinton Administration inferred (...) congressional "authorization" for the 1999 Kosovo War from an appropriations statute that failed to specifically authorize the conflict. And the Bush Administration inferred congressional "authorization" for the NSA surveillance program from ambiguous language in the post-September 11th Authorization to Use Military Force. In both situations, executive-branch lawyers employed expansive theories of implied repeal and constitutional avoidance to evade the codified clear-statement requirements, and Congress and the courts acquiesced to the President's actions. Recent proposals to strengthen the clear-statement requirements in Congress's national-security framework legislation are unlikely to be effective without institutional mechanisms, such as points of order, that can deter future legislators from enacting vague or ambiguous legislation from which the executive might claim implicit congressional "authorization," and that can induce Congress to confront Presidents that act without specific congressional authorization. Simply enacting more narrow or explicit clear-statement requirements, or adding funding restrictions to Congress's framework legislation, fails to counter the aggressive interpretive doctrines that executives of both political parties have used to concoct congressional "authorization" from vague or ambiguous statutory language. (shrink)

Lon Fuller, one of the great American jurists of this century, is often remembered only for his stand on the morality of law in the Fuller-Hart debate. Rediscovering Fuller considers the full range of Fuller's writings, from his early engagement with legal fictions and his critique of legal positivism to his later work on implicit law and the art of institutional design. Contributors from the fields of both civil law and common law argue that Fuller's insights are highly relevant (...) to contemporary concerns. The book contains essays by K. Winston, D. Dyzenhaus, P. Cliteur, F. Schauer ("Beyond the Fuller-Hart Debate"), P. Westerman, W. van der Burg, D. Luban ("Moralities of Law"), G. Postema, P. Teachout ("Implicit Law"), R. Macdonald, W. Witteveen, J. Allison, M. Hertogh, K. Soltan ("The Art of Institutional Design"), J. Allan, F. Mootz, J. Vining ("Law's Dialogue"), and a preface by Ph. Selznick. "At some point in the future, when we become more open to the moral relevance of social inquiry, more empirical in our study of philosophical issues, more capable of uniting moral and social theory, Lon Fuller's work will stand as a landmark. This volume will help show the way." —Ph. Selznick. (shrink)

Interpreting the content of the law is not limited to what a relevant lawmaker utters. This paper examines the extent to which implied and implicit content is part of the law, and specifically whether the Gricean concept of conversational implicature is relevant in determining the content of law. Recent work has focused on how this question relates to acts of legislation. This paper extends the analysis to case law and departs from the literature on several key issues. The paper's (...) argument is based upon two points: Precedent-setting judicial opinions may consist of multiple conversations, of which some entail opposing implicata, and if a particular precedent-setting judicial opinion consists of multiple conversations, of which some entail opposing implicata, then no meaningful conversational implicatum is part of the content of that particular precedent-setting opinion. Nevertheless, the paper's conclusion leaves open the prospect of gleaning something in between conversational implicature and what is literally said, namely, conversational impliciture. (shrink)

[full article, abstract in English; only abstract in Lithuanian] In Normativity of Scientific Laws explicit and implicit normativities were discerned and it was shown, following Joseph Rouse, that scientific laws implicitly harbour what Alchourrón and Bulygin imply to be the core of normativity. Here I develop this claim by discerning six aspects of implicit normativity in scientific laws: general and special conceptual normativity, concerning analytical thinking and special scientific terminologies; theoretical and material epistemic normativity, concerning (...) mathematical and experimental accountability of the world; narrow and broad practical normativity, concerning technologies in both narrower and broader senses. (shrink)

At the University of Sheffield between 2011 and 2012, a leading group of philosophers, psychologists, and others gathered to explore the nature and significance of implicit bias. The two volumes of Implicit Bias and Philosophy emerge from these workshops. Each volume philosophically examines core areas of psychological research on implicit bias as well as the ramifications of implicit bias for core areas of philosophy. Volume II: Moral Responsibility, Structural Injustice, and Ethics is comprised of three parts. (...) “Moral Responsibility for Implicit Bias” contains chapters examining the relationship of implicit biases to concepts that are central to moral responsibility, including control, awareness, reasons-responsiveness, and alienation. The chapters in the second part—“Structural Injustice”—explore the connections between the implicit biases held by individuals and the structural injustices of the societies in which they are situated. And finally, the third part—“The Ethics of Implicit Bias: Theory and Practice”—contains chapters examining strategies for implicit attitude change, the ramifications of research on implicit bias for philosophers working in ethics, and suggestions for combating implicit biases in the fields of philosophy and law. (shrink)

My focus in this essay is on those singular causal explanations which purport to explain the occurrence of some particular event by means of a claim of the following general sort The occurrence of event caused the occurrence of event.Examples include sentences like The short circuit caused the fire’ and The impact of the hammer caused the shattering of the glass,’ Many philosophers hold that there is a sharp distinction to be drawn between singular causal explanations and those sentences which (...) simply report causal connections. While singular causal sentences are said to typically relate events, and to be extensional, singular causal explanations are held to relate items which are sentential or fact-like in structure and to be non-extensional.1 Singular causal explanations are held on this view to always be explanations of why events or other objects belong to certain kinds or possess certain properties. (shrink)

There is abundant evidence that most people, often in spite of their conscious beliefs, values and attitudes, have implicit biases. 'Implicit bias' is a term of art referring to evaluations of social groups that are largely outside conscious awareness or control. These evaluations are typically thought to involve associations between social groups and concepts or roles like 'violent,' 'lazy,' 'nurturing,' 'assertive,' 'scientist,' and so on. Such associations result at least in part from common stereotypes found in contemporary liberal (...) societies about members of these groups. Implicit Bias and Philosophy brings the work of leading philosophers and psychologists together to explore core areas of psychological research on implicit bias, as well as the ramifications of implicit bias for core areas of philosophy. Volume 2: Moral Responsibility, Structural Injustice, and Ethics is comprised of three sections. 'Moral Responsibility for Implicit Bias' contains chapters examining the relationship of implicit biases to concepts that are central to moral responsibility, including control, awareness, reasons-responsiveness, and alienation. The chapters in the second section--'Structural Injustice'--explore the connections between the implicit biases held by individuals and the structural injustices of the societies in which they are situated. And finally, the third section--'The Ethics of Implicit Bias: Theory and Practice'--contains chapters examining strategies for implicit attitude change, the ramifications of research on implicit bias for philosophers working in ethics, and suggestions for combatting implicit biases in the fields of philosophy and law. (shrink)

The idea of natural law, says the author, "is based on a belief that there exists a moral order which every normal person can discover by using his reason, and of which he must take account if he is to attune himself to his necessary ends as a human being." This notion has supported the philosophy and behaviour of men in all cultures since the beginning of society. It is implicit in the Mosaic code; is fundamental in the thought (...) of Aristotle, Thomas Aquinas, Rousseau, Newton and Mill; served as the "higher law" basis for English common law and the American Constitution; and is still relevant today. It is to natural law and to its relation to the condition of our society that the seven distinguished contributors to this volume address themselves. In keeping with their widely divergent backgrounds and different faiths, the writers reveal a refreshing range of opinion within a fundamental unity. (shrink)

The most famous chapter of Montesquieu’s _ The Spirit of the Laws _ (1748), Book XI, Chapter 6, 'On the constitution of England,' was an important i nspiration to the creators of modern constitutions, to which they often referred. However, as a result of scholarly focus on the political institutions discussed in this book, Montesquieu’s economic analysis has been woefully neglected. In order to correct this scholarly imbalance, this paper will elucidate the essential significance of Montesquieu’s comparison between the (...) constitution of modern England and that of ancient Rome in Book XI of _ The Spirit of the Laws _ ; inextricable relationship between military and political institutions on the one hand, and the transfer and distribution of wealth on the other. To argue this point, this paper will focus on Montesquieu’s other writings in the same year and shortly after the publication of _ The Spirit of the Laws _ : the revised edition in 1748 of _ The Considerations on the Causes of the Greatness of t... _. (shrink)

This book offers the first comprehensive discussion of Lacan's Kant with Sade, an essay widely recognised as one of his most important and difficult texts. Here, the reader will find a detailed roadmap for each section of the essay, including clarifications of the allusions, implicit borrowings and references in Lacan's text, unique insights into the essay's publication history, and a critical assessment of its reception. The author expertly defines key terms, explains complex theoretical arguments, and contextualizes the work within (...) a larger philosophical discourse. No prior knowledge of Lacan, Kant or Sade is assumed, allowing both newcomers and those who are well-versed in psychoanalysis, philosophy, and literary criticism to benefit from the book. This engaging book clears the path for a long overdue re-discovery and a proper appreciation of one of Lacan's most challenging works, inspiring a renewed debate on the significance of Lacanian psychoanalysis for moral philosophy and literary theory.. (shrink)

The reasonable person standard is used in adjudicating claims of self-defence. In US law, an individual may use defensive force if her beliefs that a threat is imminent and that force is required are beliefs that a reasonable person would have. In English law, it is sufficient that beliefs in imminence and necessity are genuinely held; but the reasonableness of so believing is given an evidential role in establishing the genuineness of the beliefs. There is, of course, much contention over (...) how to spell out when, and in virtue of what, such beliefs are reasonable. In this chapter, we identify some distinctive issues that arise when we consider that implicit racial bias might be implicated in the beliefs in imminence and necessity. Considering two prominent interpretations of the reasonable person standard, we argue that neither is acceptable. On one interpretation, we risk unfairness to the defendant-who may non-culpably harbour bias. On another, the standard embeds racist stereotypes. Whilst there are formulations of the defence that may serve to mitigate these problems, we argue that they cannot be avoided in the presence of racist social structures. (shrink)

In this article I argue for an empiricist view on laws. Some laws are fundamental in the sense that they are the result of inductive generalisations of observed regularities and at the same time in their formulation contain a new theoretical predicate. The inductive generalisations simul- taneously function as implicit definitions of these new predicates. Other laws are either explicit definitions or consequences of other previously established laws. I discuss the laws of classical mechanics, (...) relativity theory and electromagnetism in detail. Laws are necessary, whereas acciden- tal generalisations are not. But necessity here is not a modal concept, but rather interpreted as short for the semantic predicate “... is necessarily true”. Thus no modal logic is needed. The neces- sity attributed to law sentences is in turn interpreted as “necessary condition for the rest of the the- ory”, which is true since fundamental laws are implicit definitions of theoretical predicates use in the theory. (shrink)

A person with one dollar is poor. If a person with n dollars is poor, then so is a person with n + 1 dollars. Therefore, a person with a billion dollars is poor. True premises, valid reasoning, a false a conclusion. This is an instance of the Sorites-paradox. (There are infinitely many such paradoxes. A man with an IQ of 1 is unintelligent. If a man with an IQ of n is unintelligent, so is a man with an IQ (...) of n+1. Therefore a man with an IQ of 200 is unintelligent.) Most attempts to solve this paradox reject some law of classical logic, usually the law of bivalence. I show that this paradox can be solved while holding on to all the laws of classical logic. Given any predicate that generates a Sorites-paradox, significant use of that predicate is actually elliptical for a relational statement: a significant token of "Bob is poor" means that Bob is poor compared to x, for some value of x. Once a value of x is supplied, a definite cutoff line between having and not having the paradox-generating predicate is supplied. This neutralizes the inductive step in the associated Sorites argument, and the would-be paradox is avoided. (shrink)

The Laws of Thought is an exploration of the deductive and inductive foundations of rational thought. The author here clarifies and defends Aristotle’s Three Laws of Thought, called the Laws of Identity, Non-contradiction and Exclusion of the Middle – and introduces two more, which are implicit in and crucial to them: the Fourth Law of Thought, called the Principle of Induction, and the Fifth Law of Thought, called the Principle of Deduction. This book is a thematic (...) compilation drawn from past works by the author over a period of twenty-three years (1990-2013). (shrink)

In the article, questions from the field of philosophy of mathematics are studied. The author is driven by the need to achieve a balance between the philosophy of science and the history of science in formation of concepts of the science development. In this regard, the author justifies the reliance on the methodology of implicit knowledge, combined with the epistemology principle of criticism in studying the development of mathematics as the most expedient and effective. The author expresses the necessity (...) of criticizing the methodology of counterexamples typical for mathematical empiricism declared by I. Lakatos. In the article, an explanation of the concept of implicit knowledge, as well as the examples from mathematics are given. The author believes that application of the concept of implicit knowledge in philosophical and mathematical terms allows us to reveal the unique specificity of mathematical science deeper. The author concludes that it is necessary to recognize the fundamental importance of the methodology of implicit knowledge for the epistemology, as well as for the development of philosophy and methodology of science in general. (shrink)

_ Source: _Volume 26, Issue 1, pp 1 - 33 This article reinterprets Maimonides’ theory of creation and revelation by focusing upon the relationship between belief in creation and the affirmation of miracle and law described in _Guide_ II :25. Focusing upon Maimonides’ use of inference to describe creation and revelation, I re-evaluate Maimonides’ account as an instance of inferential reasoning. That is, Maimonides makes use of, rather than proves, the _implicit_ norms of creation and revelation in their _explicit_ function (...) of legal reasoning. Thus, I suggest that Maimonides’ emphasis upon inferential judgment in justifying law is a defense of creation and revelation as rules of reasoning. (shrink)

This fourth edition of Law in Context not only updates the text by reference to the latest thinking and developments in the broad area of 'law in context', but also introduces readers to the wider social, political and regulatory contexts of law.Bottomley and Bronitt, as in previous editions, expose readers to the multitude of contexts (some explicit, others implicit) that affect how law is made, broken and enforced by the state or individual citizens. The fundamental ideals of law - (...) such as the Rule of Law - rest on cherished liberal values, though the authors constantly encourage readers not to accept uncritically the rhetoric of law, but to test these assumptions through empirical eyes.This contextual and critical approach to law, laid out in Chapter 1 and 2, is further developed through specific studies of Gender and Race. Complementing these substantive critiques of law, later chapters examine some of the institutional limitation of law and justice through chapters on access to justice, the law-making process, and regulation. The final chapter, which serves as an epilogue, looks to the broader challenges for law in an age of globalisation through case studies on terrorism and global business regulation. (shrink)

Much recent work on Kant's argument that the Categorical Imperative is the fundamental principle of morality has focused on the gap in that argument between the conclusion that rational agents conform to laws that apply to every rational agent, and the requirement contained in the Universal Law of Nature formula.1 While it seems plausible – even trivial– that a rational agent, insofar as she is a rational agent, conforms to whatever laws there are that are valid for all (...) rational agents, there does not appear to be any obvious route from this seemingly trivial claim to the controversial and substantive principle of acting only on maxims that one can at the same time rationally will every rational agent to act on.2 In what follows, I argue that the connection between rational agency and mere conformity to universally valid laws is not as trivial as it may seem. Many readers, I suspect, assume that Kant makes the trivial claim about rational agency because rational agency is rational, and being rational requires conforming to those laws that apply to all rational beings. For instance, this assumption is implicit in Onora O'Neill claim that "the interest of a Kantian universality test is that it aims to ground an ethical theory on notions of consistency and rationality rather than upon considerations of desire and preference."3 But, as I contend in what follows, the requirement to conform to laws valid for all rational agents is based on the fact that rational agency is, not rational, but agency. Indeed, the arguments leading to the first formulation of the Categorical Imperative rely on the idea of rational willing as a kind of causation in order to show this. And, as it turns out, the claim that the concept of causation contains the idea of conformity to universally valid laws is not a trivial claim. (shrink)

Judges in multiple US states, such as New York, Pennsylvania, Wisconsin, California, and Florida, receive a prediction of defendants’ recidivism risk, generated by the COMPAS algorithm. If judges act on these predictions, they implicitly delegate normative decisions to proprietary software, even beyond the previously documented race and age biases. Using the ProPublica dataset, we demonstrate that COMPAS predictions favor jailing over release. COMPAS is biased against defendants. We show that this bias can largely be removed. Our proposed correction increases overall (...) accuracy, and attenuates anti-black and anti-young bias. However, it also slightly increases the risk that defendants are released who commit a new crime before tried. We argue that this normative decision should not be buried in the code. The tradeoff between the interests of innocent defendants and of future victims should not only be made transparent. The algorithm should be changed such that the legislator and the courts do make this choice. (shrink)

In the first part of my analysis, I wish briefly to clarify the different modes of relation found in the living being, and point out the multiplicity of disciplines in which biologists use (explicitly or implicitly) the notion of laws. In the second part, I shall analyse the notion of universal laws in biology and examine successively: (1) accidental generalizations; (2) non-causal biological correlations; (3) the meaning of 'necessity' in these correlations; and (4) causal connections. Finally, in the (...) third part, I shall examine statistical laws and probabilistic laws in biology, in particular: (1) chance in biology; (2) probabilistic theories; and (3) relations between logical probability and statistical probability. (shrink)

Antony Duff’s The Realm of Criminal Law offers an appealing moral reconstruction of the criminal law. I agree that the criminal law should be understood to predicate punishment upon sufficient proof that the defendant has committed a public wrong for which she is being held to account and censured. But the criminal law is not only about censoring people for public wrongs; it must serve other purposes as well, such as preventing people from committing serious crimes and more generally from (...) violating reasonable regulations. These purposes, and perhaps retributive justice, require the criminal law also to mete out harsh treatment, but only insofar as such treatments are proportional to the culpable wrong committed. The problem for the criminal law is that many mala prohibita crimes consist of a minor wrong but also call for a relatively severe punishment. To accommodate that mismatch, it is necessary to complement the criminal law, as Duff and I conceive of it, with what I call “penal law.” Penal law relies on forfeiture to explain why hard treatment is permissible. The forfeiture must be fair, and it comes with its own proportionality limits. But those limits are not as strict as the limits implicit in the criminal law. It allows for penalties that are harsher than the punishments that could justifiably be meted out for many mala prohibita offenses. One and the same act can count as a crime and a penal infraction, and one and the same criminal justice system can and should handle both crimes and the penal infractions. It is, I think, only in that way that we can accommodate both the need to prevent public wrongdoing and the distinct importance of holding people accountable for the commission of public wrongs. (shrink)

What conception of causation is at work in the law? I argue that the law implicitly relies on a contrastive conception. In a liability case where the defendant's breach of duty must be shown to have caused the plaintiff's damages, it is not enough to consider what would have happened if the cause had not occurredthe law requires us to look to a specific replacement for the effect, which in this case is the hypothetical outcome in which the plaintiff came (...) off better. In place of I suggest the more explicit An explicitly contrastive approach can thus potentially help the lawyer phrase her causal question in a more explicit way, while shedding light on our conception of causation. (shrink)

An analysis of the concept of law, its source and connection with human positive law. The article begins by noting that “law” relates not only to prescriptions governing the behavior of human individuals. The term has a far wider sense. It can also refer to a standard or rule that binds things or events. This sense of the term covers the laws of the physical as well as the moral sciences. There is a distinction to be drawn between scientific (...) laws of nature and moral laws. Regularities in natural occurrences are often regarded as laws of nature even though what we ordinarily think of as laws are those rules that govern human behavior. We speak, for example, of the “law” of gravity and of Newton's, Einstein's, and Kepler's laws. In so doing we emphasize the regularity and binding nature implicit in each of their formulas. The thought that there are laws of the natural sciences as well as moral laws has traditionally been seen as implying a creator and regulator of all things, and an eternal source of these laws. Equally it raises the disputed question of the place of miracles, or those suspensions of regularities, in the natural scheme of things. In the same way, sacred scripture speaks of Divine Wisdom as directing all actions and movements. This article considers the physical and moral laws more generally and considers human law and its connection with the natural law. (shrink)

According to Pariente-Butterlin’s interpretive hypothesis, the level of explicit laws cannot represent the paradigm of the norm. In other words, the construction of normativity refers to an implicit dimension which sheds light on its explicit workings. In this sense, one can grant that conduct is not an expression of the law. This point of view completely displaces the problematic pertaining to the determination of a possible meaning in the production of conducts, for « how is it that we (...) obey legal rules whose existence we are unaware of? » In most of our actions, we do not regulate our conduct according to the value and injunction of the law. This implies that even our relation to laws implies an implicit reference to norms. Hence it becomes conceivable that forms of resistance or acceptance of laws be understood as modalities of action or conduct falling under the implicit horizon of normativity. (shrink)

This essay examines two dominant traditions in legal philosophy, the natural law theory and legal positivism, in terms of how they account for the normativity of law. I argue that, although these two traditions generally take the question of the normativity of law seriously and try to account for it, they are not successful in doing so. This failure in the prevailing literature on the philosophy of law, I suggest, nevertheless has an implicit reconstructive impact: the insights into the (...) failure of natural law theory and legal positivism imply an alternative philosophical framework that may provide a positive answer to the question of the normativity of law. (shrink)

The concept of the exception has heavily shaped modern political theory. In modernity, Kierkegaard was one of the first philosophers to propound the exception as a facilitator of metaphysical transcendence. Merging Kierkegaard’s metaphysical exception with early modern political theorist Jean Bodin’s theory of sovereignty, Carl Schmitt introduced sovereignty to metaphysics. He thereby made an early modern concept usable in a post-metaphysical world. This essay carries Schmitt’s appropriation one step further. Drawing on Walter Benjamin’s replacement of transcendental metaphysics with contingent creaturehood, (...) it reintroduces the anti-foundationalist concept of repetition that was implicit in Kierkegaard’s paradigm but which was not made lucid until Benjamin crafted from the Schmittian exception a vision of political life grounded in creaturely existence. -/- . (shrink)

A collection that focuses on the role of European law in colonial contexts and engages with recent treatments of this theme in known works written largely from within the framework of postcolonial studies, which implicitly discuss colonial deployments of European law and politics via the concept of ideology.

Several important analyses of the structure of evolutionary explanation have explicitly or implicitly required that historical laws be among the explanans statements. The required historical laws take the form of a generalization which relates some property or event to a developmental sequence of properties or events. The thesis of this paper is that historical laws of this kind are precluded by modern biological theory and, hence, analysis of evolutionary explanation within modern biology that require such laws (...) are defective. (shrink)

Several important analyses of the structure of evolutionary explanation have explicitly or implicitly required that historical laws be among the explanans statements. The required historical laws take the form of a generalization which relates some property or event to a developmental sequence of properties or events. The thesis of this paper is that historical laws of this kind are precluded by modern biological theory and, hence, analysis of evolutionary explanation within modern biology that require such laws (...) are defective. (shrink)

Despite the emphasis on the state in the history of political philosophy, the twentieth century has been characterized by a remarkable lack of philosophical reflection on the concept. Until recently analytical philosophy had eschewed those evaluative arguments about political obligation and the limits of state authority that were typical of political theory in the past in favour of the explication of the meaning of the concept. However, even here the results have been disappointing. Logical Positivist attempts to locate some unique (...) empirical phenomenon which the word state described proved unsuccessful, and indeed led to the odd conclusion that there was nothing about the state that distinguished it from some other social institutions. For example, its coercive power was said to be not unique: in some circumstances trade unions and Churches exercised similar power over their members. Ordinary language philosophers were far more interested in the complexities that surround words such as law, authority and power than in the state. In all this there was perhaps the fear that to concentrate attention on the state was implicitly to give credence to the discredited doctrine that it stood for some metaphysical entity; propositions about which could not be translated into propositions about the actions of individuals, and which represented higher values than those of ordinary human agents. (shrink)

Despite the emphasis on the state in the history of political philosophy, the twentieth century has been characterized by a remarkable lack of philosophical reflection on the concept. Until recently analytical philosophy had eschewed those evaluative arguments about political obligation and the limits of state authority that were typical of political theory in the past in favour of the explication of the meaning of the concept. However, even here the results have been disappointing. Logical Positivist attempts to locate some unique (...) empirical phenomenon which the word state described proved unsuccessful, and indeed led to the odd conclusion that there was nothing about the state that distinguished it from some other social institutions. For example, its coercive power was said to be not unique: in some circumstances trade unions and Churches exercised similar power over their members. Ordinary language philosophers were far more interested in the complexities that surround words such as law, authority and power than in the state. In all this there was perhaps the fear that to concentrate attention on thestatewas implicitly to give credence to the discredited doctrine that it stood for some metaphysical entity; propositions about which could not be translated into propositions about the actions ofindividuals, and which represented higher values than those of ordinary human agents. (shrink)

This paper seeks to understand the transmission and reception of legal rules as a component of the regulatory compliance process. It adopts a frontline approach to regulatory compliance that traces the grassroot functioning of compliance processes from regulator, to compliance managers to individual employees. Through a multilevel and multi-sited ethnography of worker safety protection in Chinese construction industry, this paper shows that in the cases studied there is a fundamental disconnect in the transmission and reception of law from regulator to (...) organization and within the regulated organization. Yet at the same time, the paper finds that employees did comply with the law, and that thus compliance can exist without a full transmission and reception of legal rules into and within the regulated organization. By expanding the frontline approach to study regulation and compliance to look at the grassroots operation across three different frontlines, this study has been able to assess the legal assumptions inherent in existing regulatory compliance research. Not only does it find that compliance in these cases was not a top-down process and that we need to look at the grassroots operation inside organizations, it also shows that law does not always play a central role in regulatory compliance and that we need to reassess the implicit focus on law in regulatory compliance scholarship. (shrink)

Respect, as Kant describes it, has a duality of nature that seems to embody a contradiction – i.e., it is both a moral motive and a feeling, where these are thought to be mutually exclusive. Most solutions involve eliminating one of the two natures, but unfortunately, this also destroys what is unique about respect. So instead, I question the non-cognitive theory of emotion giving rise to the contradiction. In its place, I develop the cognitive theory implicit in Kant's work, (...) one in which emotions take the form of evaluative judgments that determine the will. I then show that, as a purely rational emotion, respect is perfectly suited to be a moral motive. (shrink)

Newton certainly regarded his second law of motion in the Principia as a fundamental axiom of mechanics. Yet the works that came after the Principia, the major treatises on the foundations of mechanics in the eighteenth century—by Varignon, Hermann, Euler, Maclaurin, d’Alembert, Euler (again), Lagrange, and Laplace—do not record, cite, discuss, or even mention the Principia’s statement of the second law. Nevertheless, the present study shows that all of these scientists do in fact assume the principle that the Principia’s second (...) law asserts as a fundamental axiom in their mechanics. (For what that second law asserts, we rely on Newton’s own testimony.) Some, like Varignon and Hermann, assume the axiom implicitly, apparently unaware that any assumption is being made, while others, like Maclaurin and Euler, assume the axiom explicitly, apparently unaware that the assertion assumed is the second law as Newton himself understood it. But in every case these scientists employ the principle asserted by the Principia’s second law fundamentally, unaware that they should be citing Neutonus, Prin., Phil. Nat. Math., Lex II. (shrink)

​In risposta all’ipotesi di estendere la categoria del falso valutativo alle motivazioni di una sentenza, l’articolo tenta una ricostruzione critica della progressiva apertura del falso intellettuale ad atti dispositivi e giudizi tecnici, ponendone in evidenza alcune aporie e proponendo specifici temperamenti. Tanto la teoria dei fatti psichici, quanto quella delle attestazioni implicite e del vero legale, nella loro congiunta sovrapposizione alla struttura della fattispecie penale, possono scadere in una violazione del divieto di analogia in materia penale. Il caso da cui (...) parte l’analisi attiene una procedura di selezione per la chiamata di professore universitario di prima fascia e la sentenza del T.A.R. che decide sul ricorso di un candidato. Falsity of the judicial decision. Implicit statements, legal truth and technical judgments. In response to the hypothesis of extending the category of "evaluative" falsehood to the motivations of a judicial decision, the paper attempts a critical reconstruction of the progressive evolution of these crimes in matter of acts of will and technical judgments, highlighting some aporias and proposing some corrections. Both the theory of psychic facts, as well as the theory of implicit attestations and the legal truth, in their joint action, can violate the prohibition of analogical interpretation in criminal matters. The controversial case from which the analysis starts concerns a public competition for a university professorship and the T.A.R.’s judgment that decides on a candidate's appeal. (shrink)

If the laws of nature are as the Humean believes, it is an unexplained cosmic coincidence that the actual Humean mosaic is as extremely regular as it is. This is a strong and well-known objection to the Humean account of laws. Yet, as reasonable as this objection may seem, it is nowadays sometimes dismissed. The reason: its unjustified implicit assignment of equiprobability to each possible Humean mosaic; that is, its assumption of the principle of indifference, which has (...) been attacked on many grounds ever since it was first proposed. In place of equiprobability, recent formal models represent the doxastic state of total ignorance as suspension of judgment. In this paper I revisit the cosmic coincidence objection to Humean laws by assessing which doxastic state we should endorse. By focusing on specific features of our scenario I conclude that suspending judgment results in an unnecessarily weak doxastic state. First, I point out that recent literature in epistemology has provided independent justifications of the principle of indifference. Second, given that the argument is framed within a Humean metaphysics, it turns out that we are warranted to appeal to these justifications and assign a uniform and additive credence distribution among Humean mosaics. This leads us to conclude that, contrary to widespread opinion, we should not dismiss the cosmic coincidence objection to the Humean account of laws. (shrink)

The idea of the Good Life – of what constitutes human thriving, is, implicitly, the foundation and justification of the law. The law exists to hold societies together; to hold in tension the rights of individuals as against individuals, the rights of individuals as against various types of non-humans such as corporations, and the rights of individuals individuals as against the state. In democratic states, laws inhibit some freedoms in the name of greater, or more desirable freedoms. The only (...) justification for law is surely that it tends to promote human thriving. But what is the Good Life? What does it mean to live a thriving life? There has been no want of discussion, at least since the great Athenians. But surprisingly, since human thriving is its sole raison d’etre, the law has been slow to contribute to the conversation. This book aims to start and facilitate this conversation. It aims to: -make lawyers ask: ‘What is the law for?’, and conclude that it is to maximise human thriving -make lawyers ask: ‘But what does human thriving mean?’ -make judges and advocates ask: ‘How can a judgment about the best interests of a patient be satisfactory unless its basis is made clear?’. (shrink)

What is the relationship between justice as an individual virtue and justice as an institutional virtue? The latter has been exhaustively explored by political philosophers, whereas the former remains underexplored in the literature on virtue ethics. This article defends the view that individual justice is logically prior to institutional justice, and argues that this view requires a conception of individual justice I call ‘justice as lawfulness’. The resulting view consists of three claims. First, just institutions are composed of the relations (...) between just persons. Second, the just person has a disposition to act in accordance with the legal and social norms (collectively, thenomoi) of the existing political tradition. Third, departures from thenomoirequire that the just person act with practical wisdom to reform thenomoiaccording to an implicit standard of justice in the political tradition. (shrink)

This article questions some assumptions in legal, moral and political theory regarding the law’s ways of functioning. As the constant revival of the topos ‘living law’ shows, underlying common models of law, and of the legitimacy of law, is, though often implicitly, the view that law is or should be particular, near to the facts, flexible, susceptible to realities, and as a consequence accessible to modernisations. However, this article proposes an immanent critique of similar hopes or fears, and it argues (...) that modern positive law can not be responsive to any other ‘order’ or context because it constitutes an order of its own. The article seeks to give an explanation of the specific character and forms of the juridical operating and to explain more specifically how decisions are produced. The article in this regard also investigates the importance and role of imagination, fiction and performativity. Underlining the fact that the juridical exceeds legal propositions by asserting itself as a distinct form of social communication, it calls for a shift from the representational to the performative analysis in the study of law. (shrink)

In 1934, Karl N. Llewellyn published a lively essay trumpeting the dawn of legal realism, "On Philosophy in American Law." The charm of his defective little piece is its style and audacity. A philosopher might be seduced into reading Llewellyn’s essay by its title; but one soon learns that by "philosophy" Llewellyn only meant "atmosphere". His concerns were the "general approaches" taken by practitioners, who may not even be aware of having general approaches. Llewellyn paired an anemic concept of philosophy (...) with a pumped-up conception of law. Llewellyn’s "law" included anything that reflects the "ways of the law guild at large" - judges, legislators, regulators, and enforcers. Llewellyn argued that the legal philosophies implicit in American legal practice had been natural law, positivism and realism, each adopted in response to felt needs of a time. We must reckon with many other implicit "philosophies" to understand the workings of the law guild, not the least of which has been racism. Others, maternalism and paternalism, my foci here, persist in American law, despite women’s progress toward equality. Both maternalism and paternalism were strikingly present in a recent decision of the U.S. Supreme Court, Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act. (shrink)

In his two chief works, the Theogony and Works and Days, Hesiod treats the possibility of providence. In the former poem, he considers what sort of god could claim to gives human beings guidance. After arriving at Zeus as the only consistent possibility, Hesiod presents Zeus’ rule as both cosmic and legalistic. In the latter poem, how- ever, Hesiod shows that so long as Zeus is legalistic, his rule is limited cosmically to the human being. Ultimately, Zeus’ rule emerges as (...) more human than cosmic, and thus unable to fulfill the cosmic demands of piety. Hesiod’s presentation thus begs, without thematically posing, the question of how human beings ought to live. Accordingly, Hesiod’s theological analysis, and not his theogony (or, implicit cosmogony or cosmology), sets the stage for the inquiries of the early Greek philosophers, and so political philosophy as a whole. (shrink)

Modelling that exploits visual elements and information visualisation are important areas that have contributed immensely to understanding and the computerisation advancements in many domains and yet remain unexplored for the benefit of the law and legal practice. This paper investigates the challenge of modelling and expressing structures and processes in legislation and the law by using visual modelling and information visualisation (InfoVis) to assist accessibility of legal knowledge, practice and knowledge formalisation as a basis for legal AI. The paper uses (...) a subset of the well-defined Unified Modelling Language (UML) to visually express the structure and process of the legislation and the law to create visual flow diagrams called lawmaps, which form the basis of further formalisation. A lawmap development methodology is presented and evaluated by creating a set of lawmaps for the practice of conveyancing and the Landlords and Tenants Act 1954 of the United Kingdom. This paper is the first of a new breed of preliminary solutions capable of application across all aspects, from legislation to practice; and capable of accelerating development of legal AI. (shrink)

In “Force of Law: The ‘Mystical Foundation of Authority’,” Jacques Derrida argues that the law’s authority is mystical, unattainable in its origins, theforce of law therefore precipitating conditions for its perpetual contest. The force of Derrida’s “Force of Law” is illustrated in his study of Nelson Mandela (“The Laws of Reflection: Nelson Mandela, In Admiration”). Derrida’s Mandela reflects the law’s divisibility, and therefore its iterability in representation beyond the force of its founding letter—of which apartheid was an extreme example. (...) Mandela makes visible the need for the law’s supplement, as performative justice in the face of inherent violence in the law’s conserving force. Mandela’s performativeforce of law, contesting the inaugural violence of law, is inseparable from an implicit warp and weft of historical and theological influences. (shrink)

Lawmakers regularly delegate authority to agents. Such delegation is accompanied by mechanisms that attempt to ensure that the agents adhere to the will of the lawmakers. But these mechanisms are often ineffective or inefficient. Moreover, at times the very imposition of constraints distorts the agents’ incentives and impels them to adopt skewed policies. We suggest that it is possible to reduce such wasteful enforcement costs by delegating authority to certain types of agents who will pursue the lawmaker’s policies without constraints (...) imposed by the lawmaker. In this Article we focus on agents who are impartial — but not indifferent! — and skillful enough to identify the proper course of action. The Article encompasses two main arguments. The normative argument is that when skillful and impartial agents can be identified, it makes sense to delegate to them decision-making powers with only limited constraints. Moreover, in such instances it may be more cost-effective to provide agents with incentives to act impartially rather than develop enforcement mechanisms to impose impartiality. The positive argument is that the law — sometimes explicitly and sometimes implicitly — is compatible with our normative argument in various fields. Although our argument is general in scope and applies to many areas of law, in this Article we begin by focusing on tort law and on international law. We distinguish five categories of cases where the law relies on agents and detect in some of them impartial and skillful agents. This analysis demonstrates that, in some of these categories, the law in fact relies on agents with only minimal constraints and that, in other situations, the constraints imposed by the law are counterproductive. Our normative argument thus serves an explanatory role in understanding many legal doctrines and principles, but, at the same time, offers a critical view on other doctrines and principles, which are not compatible with that argument. (shrink)

Alstin, Zac The varied iterations of Natural Law theory draw - either explicitly or implicitly - upon a meta-physical account of human nature. They are firmly grounded in an objective description of human nature, and the goods which characterise and sustain it. Natural Law theory is primarily a work of discovery: we distinguish between good and evil in the first instance by observing and discovering the things that contribute to human flourishing.