Wittgenstein and Kripke disagree about the status of the proposition: the Standard Metre is one metre long. Wittgenstein believes it is necessary. Kripke argues that it is contingent. Kripke's argument depends crucially on a certain sort of thought‐experiment with which we are invited to test our intuitions about what is and isn’t necessary. In this paper I argue that, while Kripke's conclusion is strictly correct, nevertheless similar Kripke‐style thought experiments indicate that the metric system of measurement is after all relative (...) in something like the way Wittgenstein seems to think. Central to this paper is a thought‐experiment I call The Smedlium Case. (shrink)

The so-called ‘Humean’ view of motivation is pretty standard in the Philosophy of Mind. Its most prominent contemporary defender, Michael Smith, calls it a ‘dogma’. Humeans believe in a strict divide between beliefs and desires. Beliefs have no intrinsic motivating force: I may believe anything at all, but only with the contribution of a separate desire will I be motivated to act. This claim should be broadened out to include all cognitive states (belief, knowledge…). The Humean claim is that (...) cognitive states are wholly lacking in conative power. If some beliefs seem to us to motivate action, that can only be due to a contingent association with a separate conative state. (shrink)

This paper consists of four parts. Part 1 is an introduction. Part 2 evaluates arguments for the claim that there are no strict empirical laws in biology. I argue that there are two types of arguments for this claim and they are as follows: (1) Biological properties are multiply realized and they require complex processes. For this reason, it is almost impossible to formulate strict empirical laws in biology. (2) Generalizations in biology hold contingently but (...) class='Hi'>laws go beyond describing contingencies, so there cannot be strict laws in biology. I argue that both types of arguments fail. Part 3 considers some examples of biological laws in recent biological research and argues that they exemplify strict laws in biology. Part 4 considers the objection that the examples in part 3 may be strict laws but they are not distinctively biological laws. I argue that given a plausible account of what distinctively biological means, such laws are distinctively biological. (shrink)

Errata slip inserted. Bibliography: p. 137-140.

A highly controversial issue in criminal law theory has been the use of strict liability offenses, i.e., offenses which create liability ‘without fault.’ The collection of strict liability offenses is varied according to the element of the particular offense with respect to which liability is strict. For example, a statute prohibiting the filing of a false financial statement with the Secretary of State might impose liability despite a reasonable error as to the truth of the statement, or (...) as to the financial nature of the statement, or as to the identity of the official in question. What all strict liability offenses have in common is the imposition of liability despite the possibility of reasonable mistake or due care regarding some important element of the offense. Generally, then, a strict liability offense is one to which a claim of no-negligence is not a defense. Indeed, such a claim will not even be heard. All that the prosecution need prove is the voluntary commission of the proscribed acts by the defendant; no other question concerning the defendant's efforts or opportunity to obey the law is relevant to liability or conviction. (shrink)

Kenneth R. Westphal presents an original interpretation of Hume's and Kant's moral philosophies, the differences between which are prominent in current philosophical accounts. Westphal argues that focussing on these differences, however, occludes a decisive, shared achievement: a distinctive constructivist account of the basic principles of justice which justifies their strict objectivity without invoking moral realism nor moral anti- or irrealism. Westphal explores how Hume developed a kind of constructivism for basic property rights and for government, and how Kant greatly (...) refined Hume's construction of justice within his 'metaphysical principles of justice', whilst preserving the core model of Hume's innovative account. Westphal contends that Hume's and Kant's constructivism avoids the conventionalist and relativist tendencies latent if not explicit in contemporary forms of moral constructivism. (shrink)

This essay, as will become obvious, owes a huge debt to Mark Kelman, particularly to his article “Interpretative Construction in the Substantive Criminal Law.” That debt is one of both concept and content. There is rich irony in my aping Kelman's deconstructionist enterprise, for I do not share his enthusiasm for either the “insights” or the political agenda of the Critical Legal Studies movement. I do not believe that either the law in general or the criminal law in particular is (...) radically indeterminate, rife with internal contradictions, or an expression of the interests of a dominant economic class. And although, like Kelman, I believe that the freedom/determinism, act/character, and rule/principle dichotomies must ultimately be dealt with in order to have a completely satisfactory account of criminal law, I also believe that these dichotomies loom just as large in other areas of law and in normative theory generally. They are problems for Crits as well as for liberal-legalists. In any event, my intentions in undertaking this deconstructionist enterprise are modestly reformist, not revolutionary. I do not intend to shift any paradigms, but to work with well-established ones. I will assume that criminal law seeks to accomplish some blend of retributive response to and deterrence of culpable choices, choices to defy moral norms that are also legal norms. I will also assume that a culpable choice is one that reflects negatively on the values held by the chooser. Beyond these quite modest assumptions, I need not and will not venture in this paper, realizing, of course, that much has and can be written about the proper aims of punishment and the proper account of culpability. (shrink)

This book explores how the design, construction, and use of robotics technology may affect today's legal systems and, more particularly, matters of responsibility and agency in criminal law, contractual obligations, and torts. By distinguishing between the behaviour of robots as tools of human interaction, and robots as proper agents in the legal arena, jurists will have to address a new generation of "hard cases." General disagreement may concern immunity in criminal law (e.g., the employment of robot soldiers in battle), personal (...) accountability for certain robots in contracts (e.g., robo-traders), much as clauses of strict liability and negligence-based responsibility in extra-contractual obligations (e.g., service robots in tort law). Since robots are here to stay, the aim of the law should be to wisely govern our mutual relationships. (shrink)

:Strict liability in tort law is thought by some to have a moral counterpart. In this essay I attempt to determine whether there is, in fact, strict liability in the moral domain. I argue that there is, and I critically evaluate several accounts of its normative foundations before suggesting one of my own.

The perennial question posed by the philosophically-inclined lawyer is 'What is law?' or perhaps 'What is the nature of law?' This book poses an associated, but no less fundamental, question about law which has received much less attention in the legal literature. It is: 'Who is law for?' Whenever people go to law, they are judged for their suitability as legal persons. They are given or refused rights and duties on the basis of ideas about who matters. These ideas are (...) basic to legal-decision making; they form the intellectual and moral underpinning of legal thought. They help to determine whether law is essentially for rational human beings or whether it also speaks to and for human infants, adults with impaired reasoning, the comotose, foetuses and even animals. Are these the right kind of beings to enter legal relationships and so become legal persons. Are they, for example, sufficiently rational, or sacred or simply human? Is law meant for them? This book reveals and evaluates the type of thinking that goes into these fundamental legal and metaphysical determinations about who should be capable of bearing legal rights and duties. It identifies and analyses four influential ways of thinking about law's person, each with its own metaphysical suppositions. One approach derives from rationalist philosophy, a second from religion, a third from evolutionary biology while the fourth is strictly legalistic and so endeavours to eschew metaphysics altogether. The book offers a clear, coherent and critical account of these complex moral and intellectual processes entailed in the making of legal persons. (shrink)

This book is a collection of original essays offering the first full-length consideration of the problem of strict liability in the criminal law: that is, the problem of criminal offences that allow a defendant to be convicted without proof of fault. Because of its potential to convict blameless persons, strict liability is a highly controversial phenomenon in the criminal law. Including Anglo-American and European perspectives, the contributions provide a sustained and wide-ranging examination of the fundamental issues. The breadth (...) and depth of the chapters combine to present readers with a sophisticated analysis of the place and legitimacy of strict liability in the criminal law. (shrink)

The responsible corporate officer doctrine is, as a formal matter, an instance of strict criminal liability: the government need not prove the defendant’s mens rea in order to obtain a conviction, and the defendant may not escape conviction by proving lack of mens rea. Formal strict liability is sometimes consistent with retributive principles, especially when the strict liability pertains to the grading of an offense. But is strict liability consistent with retributive principles when it pertains, not (...) to grading, but to whether the defendant has crossed the threshold from noncriminal to criminal conduct? In this essay, I review the two most plausible arguments supporting an affirmative answer in the context of the RCO doctrine. First, perhaps this doctrine reflects a rule-like form of negligence, akin to a rule that prohibits selling alcohol to a minor. Second, perhaps this doctrine expresses a duty to use extraordinary care to prevent a harm. Neither argument is persuasive. The first argument, although valid in some circumstances, fails to explain and justify the RCO doctrine. The second argument, a duty to use extraordinary care, is also inadequate. If “extraordinary care” simply means a flexibly applied negligence standard that considers the burdens and benefits of taking a precaution, it is problematic in premising criminal liability on ordinary negligence. If instead it refers to a higher duty or standard of care, it has many possible forms, such as requiring only a very slight deviation from a permissible or justifiable standard of conduct, placing a “thumb” on the scale of the Learned Hand test, identifying an epistemic standard more demanding than a reasonable person test, or recognizing a standard that is insensitive to individual capacities. However, some of these variations present a gratuitous or incoherent understanding of “negligence,” and none of them sufficiently explain and justify the RCO doctrine. (shrink)

This paper describes intellectual property legislation in the European Union, the US and the Draft Treaty on the legal protection of unoriginal databases, usually available in the Internet. I argue that this type of legislation, if enforced upon developing countries and countries in transition through international ‘agreements’, could in effect deprive them of their own information commons, their own public domain. With examples from China, India, Africa and Iceland, I argue that this deprivation in the case of developing countries is, (...) morally, equal to a virtual war against them by the West, wholly unjustified and dangerous-an example of virtual imperialism. (shrink)

Does criminal liability require an act? -- Motive and criminal liability -- The costs to criminal theory of supposing that intentions are irrelevant to permissibility -- Transferred intent -- The nature and justifiability of nonconsummate offenses -- Strict liability, justice, and proportionality -- The sequential principle of relative culpability -- Willful ignorance, knowledge, and the equal culpability thesis : a study of the significance of the principle of legality -- Rapes without rapists : consent and reasonable mistake -- Mistake (...) of law and culpability -- On the supposed priority of justification to excuse -- Partial defenses -- The "but everybody does that!" defense -- The de minimis "defense" to criminal liability -- Why punish the deserving -- Malum prohibitum and retributivism -- Already punished enough. (shrink)

The American tort system regularly conducts a sort of lottery in which plaintiffs try to name as many defendants in a tort action as they can in order to collect a large judgment from at least one of them. This procedure is encouraged under strict joint and several liability, which permits plaintiffs to recover greater damages from defendants - usually businesses - with less moral culpability for the tort than poorer defendants, who bear greater culpability. In a case involving (...) the Disney Corporation and a negligent amusement park rider, for instance, Disney was forced to pay 86% of the court award to the plaintiff, even though the jury found the company to be only 1% liable for the injury. The legal principle of joint and several liability violates morality in several different ways. Even though the principle appears to be better in the short run for plaintiffs, I will show that it fails not only to satisfy utilitarianism, but compensatory justice as well. Hence, the legal principle of joint and several liability should be eliminated in favor of a better, fairer law, which I will briefly sketch at the end. (shrink)

This article conceptualizes what strict liability is in the criminal law. Four properties are found to be individually necessary, only jointly sufficient, for there to be the kind of moral blameworthiness that must underlie any just punishment: prima facie wrongdoing, absence of justification, prima facie culpability, and absence of excuse. Whenever criminal liability is imposed without the presence of one or more of these properties, the liabuility is said to be strict.

. In the first part of this essay I sketch a view on cosmogenesis from the perspective of modern science, emphasizing, first, that the laws of nature are outcomes of the history of nature, not imposed on nature from outside of nature; and, second, that the universe, including human beings, is the result of a single, natural process. It consistently brings forth novelty through a probabilistic sequence of syntheses. Consequently, the new emerges from the unification of elements that were (...) previously unified. This universal creative process is both probabilistic and nonlinear. It is probabilistic because each creative event occurs within a cohort of also possible events. It is nonlinear because the new has qualities that its elements in isolation do not possess. I refer to this model of understanding cosmogenesis as strict naturalism. In the second part of the essay I argue that deistic and theistic models of cosmogenesis cannot cope with strict naturalism because they exclude teleology and supernatural interference in the creative process. In contrast to deism and theism, I show that Christianity is capable of integrating strict naturalism. To do that I focus on the Christian notion of incarnation. At the center of this reflection is the attempt to increase the understanding of Christian faith that only the Word of God creates. (shrink)

a This is an outline of a coherence theory of law. Its basic ideas are: reasonable support and weighing of reasons. All the rest is commentary.a (TM) These words at the beginning of the preface of this book perfectly indicate what On Law and Reason is about. It is a theory about the nature of the law which emphasises the role of reason in the law and which refuses to limit the role of reason to the application of deductive logic. (...) In 1989, when the first edition of On Law and Reason appeared, this book was ground breaking for several reasons. It provided a rationalistic theory of the law in the language of analytic philosophy and based on a thorough understanding of the results, including technical ones, of analytic philosophy. That was not an obvious combination at the time of the booka (TM)s first appearance and still is not. The result is an analytical rigor that is usually associated with positivist theories of the law, combined with a philosophical position that is not natural law in a strict sense, but which shares with it the emphasis on the role of reason in determining what the law is. If only for this rare combination, On Law and Reason still deserves careful study. On Law and Reason also foreshadowed and influenced a development in the field of Legal Logic that would take place in the nineties of the 20th century, namely the development of non-monotonic (a defeasiblea (TM)) logics for the analysis of legal reasoning. In the new Introduction to this second edition, this aspect is explored in some more detail. (shrink)

To protect what it deems fundamental rights, the Supreme Court strictly scrutinizes legislation that impinges on these rights. The Court views such legislation as a means to some end the legislation seeks to accomplish. The Court requires that the statute be neither overinclusive nor underinclusive; the legislation may not affect more people than necessary to achieve its end, nor is the statute permitted to leave some people out in achieving its end.I argue that when legislation imposes burdens, its underinclusiveness is (...) irrelevant, and that when it dispenses rewards its overinclusiveness is irrelevant, because those affected by the statute areex hypothesi deserving. One commits thetu quoque fallacy when one tries to infer that those affected by the law are undeserving from the fact that some deserving individuals were not affected by the statute. (shrink)

It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. Similar (...) arguments support the use of criminal liability for regulatory offenses. Greater punishment rates suggest greater compliance. But this analysis fails to appreciate the crime-control costs of strict liability. By explicitly providing for punishment in the absence of moral blameworthiness, the law undermines its moral credibility with the community and thereby provokes subversion and resistance instead of the cooperation and acquiescence it needs for effective crime control. More importantly, the system’s lost moral credibility undermines the law’s ability to harness the powerful forces of stigmatization, social influence, and internalized norms. Given the serious limitations inherent in the real-world application of general deterrence and preventive detention programs, the most effective crime-control strategy is to build the criminal law’s reputation for being just, which means avoiding the use of strict liability. (shrink)

In ‘What Has Philosophy to Learn from Tort Law?’, Bernard Williams reaffirms J. L. Austin’s suggestion that philosophy might learn from tort law ‘the difference between practical reality and philosophical frivolity’. Yet while Austin regarded tort law as just another repository of time-tested concepts, on a par with common sense as represented by a dictionary, Williams argues that ‘the use of certain ideas in the law does more to show that those ideas have strength than is done by the mere (...) fact that they are part of the currency of common sense’. But what does it mean to show that ideas or concepts ‘have strength’? How does conceptual strength relate to the distinction between practical reality and philosophical frivolity? And what special features of the law are supposed to make it a better test of conceptual strength than common sense? In this chapter, I reconstruct and develop Williams’s answers to these questions. I show why Williams believes that we need to test the concepts forming the currency of common sense against practical reality as embodied by legal practice; I identify seven features of tort law that make it particularly suitable to act as such a test; I distinguish three respects in which concepts can show strength, and unpack Williams’s metaphor of microwave-resistant concepts: concepts capable of holding and presenting material for intense critical scrutiny without succumbing to it themselves; lastly, I show how philosophy can learn to identify systematically weak concepts, and the limits of otherwise valuable concepts, by considering which concepts fail the test. (shrink)

Crispin Wright in his 1982 paper argues for strict finitism, a constructive standpoint that is more restrictive than intuitionism. In its appendix, he proposes models of strict finitistic arithmetic. They are tree-like structures, formed in his strict finitistic metatheory, of equations between numerals on which concrete arithmetical sentences are evaluated. As a first step towards classical formalisation of strict finitism, we propose their counterparts in the classical metatheory with one additional assumption, and then extract the propositional (...) part of ‘strict finitistic logic’ from it and investigate. We will provide a sound and complete pair of a Kripke-style semantics and a sequent calculus, and compare with other logics. The logic lacks the law of excluded middle and Modus Ponens and is weaker than classical logic, but stronger than any proper intermediate logics in terms of theoremhood. In fact, all the other well-known classical theorems are found to be theorems. Finally, we will make an observation that models of this semantics can be seen as nodes of an intuitionistic model. (shrink)

In “Advisory Opinion on Confidentiality, Its Limits and Duties to Others” the Canadian Interagency Advisory Panel on Research Ethics (PRE) articulates a rationale for a priori limitations to research confidentiality, based largely on putative legal duties to violate confidentiality in certain circumstances. We argue that PRE promotes a “Law of the Land” doctrine of research ethics that is but one approach to resolving potential conflicts between law and research ethics. PRE emphasises risks that have never materialized, and ignores jurisprudence on (...) challenges to research confidentiality. When we examine what the courts have actually done with research-based claims of privilege, we find they clearly recognize and affirm researchers’ ethical obligations to maintain strict confidentiality and protect research participants. Ironically, the one exception – where the court ordered that information be disclosed – occurred precisely because the researchers had limited confidentiality. The passive approach PRE espouses leaves vital questions about what protecting confidentiality to the “full extent possible in law” means, and leaves the impression that academics should accept whatever limitations the courts may impose without participating in the courtroom dialogue determining where those limits are drawn. In contrast, we believe confidentiality is so important to the protection of research participants and the integrity of the research enterprise that it is worth fighting for. The “ethics-first” doctrine of “strict confidentiality” we describe adheres to the social sciences’ and humanities’ longstanding commitment to research confidentiality and duty to the research participant. (shrink)

Abstract—How do judges decide cases? Are judges controlled by rules, principles and professional standards of reasoning or do they decide as politicians, using the law as an instrument to achieve predetermined goals. In Australia one influential view on this issue was expressed by Sir Owen Dixon when he called for a ‘strict and complete legalism’ for judges. Dixon’s strict legalism no longer commands the respect that it once did and his view is now commonly seen as naïve or (...) as a noble lie intended to hide the freedom open to judges when they decide cases. This article examines first Dixon’s understanding of strict legalism. It will argue that Dixon understood it as a form of practice and not as a rigorous scholarly system. Secondly, it will analyse Wilson v Darling Island Stevedoring to see whether the leading judgment of Fullagar J is in accord with Dixon’s judicial method. In Wilson the High Court was presented with a persistent legal problem—could stevedores claim the benefits of exemption and limitation clauses that commonly featured in bills of lading arising from the transport of goods and people? The third section of the article will consider the obvious belief of many of the judges in the authorities examined that the commercial inconvenience of not protecting stevedores was too great to ignore. These judges were willing to grant stevedores the protection of exemption clauses in contracts of carriage, a trend that continued, indeed accelerated, after Wilson. So, even if Fullagar J did judge as a strict legalist, does this perceived commercial imperative raise doubts about the appropriateness of this style of judging? In conclusion the article will consider the implications of showing that the reasoning in Wilson displayed a fidelity to Dixon’s notion of strict and complete legalism. (shrink)

This volume presents a Type Theory of Law (TTL), claiming that this is a unique theory of law that stems from the philosophical understanding of Jung's psychological types applied to the phenomenon of law. Furthermore, the TTL claims to be a universal, general and descriptive account of law. To prove that, the book first presents the fundamentals of Jungian psychological types, as they had been invented by Jung and consequently developed further by his followers. The next part of the book (...) describes how the typological structure of an individual determines their understanding of law. It then addresses the way in which inclusive legal theory can be understood based on this typology. Finally, the book describes the TTL in general and descriptive terms and puts it into context. All in all, the book shows how the integral or inclusive approach to understanding the nature of law is not only in tune with our time, but also relevant for presenting a more persuasive picture of law than the older exclusivist or dualist approaches of strict natural law and rigid legal positivism did. (shrink)

I reply to Steven Jensen’s article, “Phoenix Rising from the Ashes: Recent Attempts to Revive New Natural Law Action Theory,” which appeared in this journal in 2020. His arguments helpfully clarify where the disagreements between the strict and broad views of intention lie but, I argue, fail to refute the arguments and explanations he criticizes. I argue he misinterprets the strict view’s reference to necessity in its criterion for what is intended. I also argue against what he labels (...) as the “identity thesis,” and against his attempt to show that the strict view (or New Natural Law theory of action) leads to the absurdity that most acts of adultery are not actually adultery. (shrink)

Standard deontic logic (SDL) is defined on the basis of possible world semantics and is a logic of alethic-deontic modalities rather than deontic modalities alone. The interpretation of the concepts of obligation and permission comes down exclusively to the logical value that a sentence adopts for the accessible deontic alternatives. Here, we set forth a different approach, this being a logic which additionally takes into consideration whether sentences stand in relation to the normative system or to the system of values (...) under which we predicate the deontic qualifications. By taking this aspect into account, we arrive at a logical system which preserves laws proper to a deontic logic but where the standard paradoxes of deontic logic do not arise. It is a logic of strictly-deontic modalities DR. (shrink)

The paper argues against the widely accepted assumption that the causal laws of (completed) physics, in contrast to those of the special sciences, are essentially strict. This claim played an important role already in debates about the anomalousness of the mental, and it currently experiences a renaissance in various discussions about mental causation, projectability of special science laws, and the nature of physical laws. By illustrating the distinction with some paradigmatic physical laws, the paper demonstrates (...) that only law schemata are strict whereas causal laws are generally non-strict. Several potential replies to this argument are discussed and rejected as unsound. (shrink)

This essay explores the case against strict liability offenses as part of the more general debate about proportional punishment. This debate takes on a very different look in light of a formal result derived by the authors elsewhere, that is briefly summarized and whose implications are pursued here. Traditional objections that consequentialists have mounted against the deontologists’/retributivists’ defense of proportionality fall by the wayside, but a new threat to the proportionality requirement replaces it: the ease with which any such (...) requirement can be circumvented. (shrink)

Deontologists often assume that ethical constraints hold ‘come what may’ but that violations of the constraints can be excused or pardoned. Vinit Haksar has argued for pardon as deontologically appropriate mitigation for the violation of deontological constraints. However, the reasons he adduces against excuse are inconclusive. In this paper, I show how complex the question of excuse versus pardon for deontological transgressions is. Liability for the development of character traits and the assumption of agent-centered responsibility have to be taken into (...) account before the possibility of pardon can be identified as appropriate deontological softener for strict constraints. (shrink)

A geometric interpretation of gravitation is given using general relativity. The law of gravitation is taken in the formR 44=0, whereR 44is the component of the contracted Riemann-Christoffel (Ricci) tensor representing the curvature of time. The remaining curvature components of the contracted Riemann-Christoffel tensor may or may not vanish. All that is required in addition toR 44=0 is that the Gaussian curvatureR be nowhere infinite. The conditionR 44=0 yields a nonlinear wave equation. One of the static degenerate solutions represents the (...) gravitational field surrounding a static gravitational point singularity. It is found that for this solution, the three famous predictions of general relativity are obtained in the weak-field approximation. In addition, it is found that there is a correction to the Kepler period of revolution for an orbit. (shrink)

The rich connections between metaphysics and natural philosophy in the early modern period have been widely acknowledged and productively mined, thanks in no small part to the work of Margaret Wilson, whose book, Descartes, served as an inspirational example for a generation of scholars. The task of this paper is to investigate one particular such connection, namely, the relation between occasionalist metaphysics and strict mechanism. My focus will be on the work of Nicholas Malebranche, the most influential Cartesian philosopher (...) after Descartes himself. I begin with two crucial facts about Malebranche’s philosophy: (1) Malebranche was an occasionalist, that is, he held that God was the only true cause, that all modifications of bodies and of minds can be produced by God alone. (2) Malebranche adhered firmly to strict mechanism. By strict mechanism, I mean the view, found most prominently in Descartes and in Boyle’s more ideological writings, that the qualities of bodies are exhausted by a very short list (size, shape, motion, and perhaps solidity) and that, most importantly, bodies interact only at contact by impact. Another way of describing this “contact action” requirement is as the thesis that the only fundamental laws of physics are laws of inertial motion and laws of the communication of motion at impact. In.. (shrink)

Proponents of strict rule-based theories of judicial reasoning in common-law systems have offered a number of criticisms of analogical alternatives. I explain these criticisms and show that at best they apply equally well to rule-based theories. Further, I show how the analogical theories explain a feature of judicial common-law reasoningthat rule-based theories ignore. Finally, I show that reason-based, analogical theories of common-law judicial reasoning, such as those offered by John Horty and Grant Lamond, offer especially strong rejoinders to the (...) rule-theorist objections and persuasive accounts of distinguishing. (shrink)

"Public reason" is one of the central concepts in modern liberal political theory. As articulated by John Rawls, it presents a way to overcome the difficulties created by intractable differences among citizens' religious and moral beliefs by strictly confining the place of such convictions in the public sphere. Identifying this conception as a key point of conflict, this book presents a debate among contemporary natural law and liberal political theorists on the definition and validity of the idea of public reason. (...) Its distinguished contributors examine the consequences of interpreting public reason more broadly as "right reason," according to natural law theory, versus understanding it in the narrower sense in which Rawls intended. They test public reason by examining its implications for current issues, confronting the questions of abortion and slavery and matters relating to citizenship. This energetic exchange advances our understanding of both Rawls's contribution to political philosophy and the lasting relevance of natural law. It provides new insights into crucial issues facing society today as it points to new ways of thinking about political theory and practice. (shrink)

According to the deductive-nomological account of ground, a fact A grounds another fact B in case the laws of metaphysics determine the existence of B on the basis of the existence of A. Accounts of grounding of this particular variety have already been developed in the literature. My aim in this paper is to sketch a new version of this account. My preferred account offers two main improvements over existing accounts. First, the present account is able to deal with (...) necessitarian as well as non-necessitarian cases of grounding by acknowledging the existence of two types of metaphysical laws. I will argue that we should assume that metaphysical laws come in the necessitarian as well as in the non-necessitarian varietyclosely paralleling the distinction between strict and non-strict laws in the philosophy of science. The second main improvement of the present account is that this account is able to provide an explanation of why the laws of metaphysics have a direction built into them. I will argue that we should characterize metaphysical laws with the help of Theodore Sider’s (2011) notion of structure, which is a descendent of David Lewis’s (1983) notion of naturalness. According to the account of metaphysical laws developed in this paper, metaphysical laws express in their antecedents either perfectly structural truths or more structural truths than in their consequents. Since on Sider’s account structural features of reality are fundamental features of reality, the account is able to explain as to why the laws of metaphysics take us from the fundamental to the derivative. (shrink)

Can laws of nature be universal regularities and nevertheless have exceptions? Several answers to this question, in particular the thesis that there are no laws outside of fundamental physics, are examined and rejected. It is suggested that one can account for exceptions by conceiving of laws as strictly universal determination relations between (instances of) properties. When a natural property is instantiated, laws of nature give rise to other, typically dispositional properties. In exceptional situations, such properties manifest (...) themselves either in an unusual way or not at all. (shrink)

This paper argues that ceteris paribus (cp) laws exist based on a Lewisian best system analysis of lawhood (BSA). Furthermore, it shows that a BSA faces a second trivialization problem besides the one identified by Lewis. The first point concerns an argument against cp laws by Earman and Roberts. The second point aims to help making some assumptions of the BSA explicit. To address the second trivialization problem, a restriction in terms of natural logical constants is proposed that (...) allows one to describe regularities, as specified by basic generics (e.g. ‘birds can fly’) and universals (e.g. ‘all birds can fly’). It is argued that cp laws rather than strict laws might be a part of the the best system of such a regularity-based BSA, since sets of cp laws can be both (a) simpler and (b) stronger when reconstructed as generic non-material conditionals. Yet, if sets of cp laws might be a part of the best system of a BSA and thus qualify as proper laws of nature, it seems reasonable to conclude that at least some cp laws qualify as proper laws of nature. (shrink)

Of silence, paradoxically, one can only speak. By virtue of the alliance that unites reason and language, the capacity to name and to address indeed obeys a certain desire to restrain excessive communication. Laughter, tears and silence are part of the expressive world: however, they attest to the impossible pitfall of words in the socializing function that we accord them. Of extreme sociality, of meaning that exceeds the bearable, the suitability and the commerce of ideas, the only thing that rises (...) to the surface of the perceptible is that emotional logic whose significations shatter every criterion of certitude and of truth on the real. Confronted with three forms of experience of the unspeakable, we ordinarily allow ourselves to lend credit to the spontaneity of the first two (laughter and tears), while the symbolic dimension of silence seems to derive from an invisible orchestration, from a rather simple calculation or from a more elaborate strategy. This difference in nature is essential, and no one would dream of equating what “can” not be said with what “should” not be said. Silence exists as a sort of constraint, interiorized at various levels of the personality, and thereby more social than psychological. Even the involuntary silence of the unknowing person can be codified: as a disciplined avowal or the politeness of the humble who neither tolerates nor imagines any escape from his embarrassment. If speech is born in the abandon of a burst of expressivity, in hilarity or in sobs, it expires in a law, no less severe than the one which endows phrases with semantic coherence. Such a rule thus manifests a universal character socially more affirmed than the multiple syntaxes that organize each linguistic patrimony. That muteness can also be subject to a particular form of apprenticeship shows how each process of socialization determines the price of the communicable and assigns a value to the unformulated. Without pretending to offer a strict typology of this phenomenon, I will distinguish five classes that are capable of comprising its collective aspects. (shrink)

This paper is concerned with the question of the truth conditions of nomological statements. My fundamental thesis is that it is possible to set out an acceptable, noncircular account of the truth conditions of laws and nomological statements if and only if relations among universals - that is, among properties and relations, construed realistically - are taken as the truth-makers for such statements. My discussion will be restricted to strictly universal, nonstatistical laws. The reason for this limitation is (...) not that I feel there is anything dubious about the concept of a statistical law, nor that I feel that basic laws cannot be statistical. The reason is methodological. The case of strictly universal, nonstatistical laws would seem to be the simplest case. If the problem of the truth conditions of laws can be solved for this simple subcase, one can then investigate whether the solution can be extended to the more complex cases. I believe that the solution I propose here does have that property, though I shall not pursue that question here.1. (shrink)

In this article, I examine what Kant’s Formula of Universal Law requires of an individual agent in situations of great need, e.g.: if you can easily help a drowning child, or if you know of a famine situation in another country. I first explain why I do not simply apply the standard interpretation of how one can derive concrete duties from Kant’s Universal Law formulation of the Categorical Imperative. I then glean an alternative procedure from Kant’s texts and give the (...) reasons for using that interpretation. Finally, I apply the alternative procedure to situations of great need. – According to the interpretation I glean from Kant’s texts, one (i) should not make an exception to (ii) laws that we believe to be objectively necessary, whereby we derive these rules from (iii) universal ends of humankind. Since we take survival as one of the universal ends of mankind, we deem helping someone whose life is in danger as objectively necessary (to achieve the end). The formal Categorical Imperative demands that one does not make an exception to this rule. Applying this interpretation to cases of great need depends on at least three factors: (i) how urgent the need is, (ii) how great the costs are to the one who helps, and (iii) how many people can help. But at one extreme, where you are the only one who can easily save an innocent person’s life, the Kantian procedure generates a strict duty to help the other in need. (shrink)

The article is a review of A.P. Simester, ed., Appraising Strict Liability. We strongly recommend the book for the sophistication of the contributors’ analyses, and the contribution the book makes to clarifying the normative issues at stake in strict liability legal regimes. The review focuses on the more philosophical essays in the book. The specific issues from the book identified in the review are: the rights-based character of the prohibition on conviction without moral fault; the importance of the (...) principle of proportionality; due diligence defences; the instrumental worth of strict liability in relation to quasi-criminal regulation; the faultiness of genuinely creating risks. (shrink)