Neil MacCormick
- Published in print:
- 2008
- Published Online:
- May 2009
- ISBN:
- 9780198268772
- eISBN:
- 9780191713071
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198268772.001.0001
- Subject:
- Law, Philosophy of Law
The concept of practical reason is central to contemporary thought on ethics and the philosophy of law — acting well means acting for good reasons. Explaining this requires several stages. How do ...
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The concept of practical reason is central to contemporary thought on ethics and the philosophy of law — acting well means acting for good reasons. Explaining this requires several stages. How do reasons relate to actions at all, as incentives and in explanations? What are values, how do they relate to human nature, and how do they enter practical reasoning? How do the concepts of ‘right and wrong’ fit in, and in what way do they involve questions of mutual trust among human beings? How does our moral freedom — our freedom to form our own moral commitments — relate to our responsibilities to each other? How is this final question transposed into law and legal commitments? This book explores these questions, vital to understanding the nature of law and morality. It presents an account of practical reason. It also offers a reinterpretation of Kant's views on moral autonomy and Adam Smith's on self-command, marrying Smith's ‘moral sentiments’ to Kant's ‘categorical imperative’.Less
The concept of practical reason is central to contemporary thought on ethics and the philosophy of law — acting well means acting for good reasons. Explaining this requires several stages. How do reasons relate to actions at all, as incentives and in explanations? What are values, how do they relate to human nature, and how do they enter practical reasoning? How do the concepts of ‘right and wrong’ fit in, and in what way do they involve questions of mutual trust among human beings? How does our moral freedom — our freedom to form our own moral commitments — relate to our responsibilities to each other? How is this final question transposed into law and legal commitments? This book explores these questions, vital to understanding the nature of law and morality. It presents an account of practical reason. It also offers a reinterpretation of Kant's views on moral autonomy and Adam Smith's on self-command, marrying Smith's ‘moral sentiments’ to Kant's ‘categorical imperative’.
John Gardner
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199239351
- eISBN:
- 9780191716959
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199239351.001.0001
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
This book collects together a selection of John Gardner's best-known and most provocative writings on the theory of criminal law. Gardner tackles persistent and troublesome questions about the ...
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This book collects together a selection of John Gardner's best-known and most provocative writings on the theory of criminal law. Gardner tackles persistent and troublesome questions about the philosophical foundations of the criminal law. Which wrongs are suitable to be crimes and why? What are the conditions of criminal responsibility, and how do they relate to the conditions of moral responsibility? What does it take to be complicit in another's wrongdoing? Should crimes ever be excused, and if so, on what basis? How, if at all, should the criminal law adapt to conditions of social and cultural diversity? The issues raised in these essays have a significance extending beyond the law. What does it mean to be a responsible agent and why does it matter? Is my moral character only or mostly my own business? Is there a difference between being reasonable and being rational? These and many other moral problems lurk in the background of the criminal law, and the pieces in this book bring them into the foreground. Theoretical writings on the criminal law have often been dominated by a preoccupation with the justification of criminal punishment. This work is different. Although it discusses the legitimacy of criminal punishment, it proceeds on the footing that the criminal law does many important things apart from punishing people. In particular, Gardner argues that the criminal law provides an important forum for people to explain themselves. Such a forum would be important, argues Gardner, even if criminal punishment were to be abolished.Less
This book collects together a selection of John Gardner's best-known and most provocative writings on the theory of criminal law. Gardner tackles persistent and troublesome questions about the philosophical foundations of the criminal law. Which wrongs are suitable to be crimes and why? What are the conditions of criminal responsibility, and how do they relate to the conditions of moral responsibility? What does it take to be complicit in another's wrongdoing? Should crimes ever be excused, and if so, on what basis? How, if at all, should the criminal law adapt to conditions of social and cultural diversity? The issues raised in these essays have a significance extending beyond the law. What does it mean to be a responsible agent and why does it matter? Is my moral character only or mostly my own business? Is there a difference between being reasonable and being rational? These and many other moral problems lurk in the background of the criminal law, and the pieces in this book bring them into the foreground. Theoretical writings on the criminal law have often been dominated by a preoccupation with the justification of criminal punishment. This work is different. Although it discusses the legitimacy of criminal punishment, it proceeds on the footing that the criminal law does many important things apart from punishing people. In particular, Gardner argues that the criminal law provides an important forum for people to explain themselves. Such a forum would be important, argues Gardner, even if criminal punishment were to be abolished.
MARCUS GEORGE SINGER
- Published in print:
- 2003
- Published Online:
- October 2011
- ISBN:
- 9780198250210
- eISBN:
- 9780191681264
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198250210.003.0009
- Subject:
- Philosophy, Moral Philosophy
This chapter considers the relation between judicial decisions and judicial opinions — more specifically, the question whether opinions are necessary ...
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This chapter considers the relation between judicial decisions and judicial opinions — more specifically, the question whether opinions are necessary or dispensable, and what light that question throws on the question of the relations between law and justice. It then looks at the relations between law and morality.Less
This chapter considers the relation between judicial decisions and judicial opinions — more specifically, the question whether opinions are necessary or dispensable, and what light that question throws on the question of the relations between law and justice. It then looks at the relations between law and morality.
Nicola Lacey
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199202775
- eISBN:
- 9780191705953
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199202775.003.0010
- Subject:
- Law, Legal History
This chapter focuses on the publication of Causation in the Law and The Concept of Law. Causation in the Law represents a thoroughgoing application of the linguistic philosophical analysis to law. It ...
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This chapter focuses on the publication of Causation in the Law and The Concept of Law. Causation in the Law represents a thoroughgoing application of the linguistic philosophical analysis to law. It presents a spirited defence of the idea that causation in law is indeed a distinctive ground for the attribution of liability, and a persuasive critique of the causal minimalist position as collapsing questions of the ground of liability (causation) into questions about its scope or extent (policy factors affecting the extent of damages or the scope of the rule), and, in doing so, as blurring what is argued to be the proper division of labour between judge and jury, between law and fact. In The Concept of Law Hart claimed to set out a general, descriptive theory of law: a theory of law as it is, and not an ideal theory of what law ought to be. This would be at once a contribution to ‘analytical jurisprudence’ and to ‘descriptive sociology’. In other words, Hart sought to elucidate a concept of law which would be relevant to all forms of law, wherever or whenever they arose.Less
This chapter focuses on the publication of Causation in the Law and The Concept of Law. Causation in the Law represents a thoroughgoing application of the linguistic philosophical analysis to law. It presents a spirited defence of the idea that causation in law is indeed a distinctive ground for the attribution of liability, and a persuasive critique of the causal minimalist position as collapsing questions of the ground of liability (causation) into questions about its scope or extent (policy factors affecting the extent of damages or the scope of the rule), and, in doing so, as blurring what is argued to be the proper division of labour between judge and jury, between law and fact. In The Concept of Law Hart claimed to set out a general, descriptive theory of law: a theory of law as it is, and not an ideal theory of what law ought to be. This would be at once a contribution to ‘analytical jurisprudence’ and to ‘descriptive sociology’. In other words, Hart sought to elucidate a concept of law which would be relevant to all forms of law, wherever or whenever they arose.
Wojciech Sadurski
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199545179
- eISBN:
- 9780191719905
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199545179.003.0001
- Subject:
- Law, Philosophy of Law
This chapter prepares the ground for the discussion of legitimacy of democratic laws by considering the relationship between law's legitimacy, its justification, and the obligation to obey the law. ...
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This chapter prepares the ground for the discussion of legitimacy of democratic laws by considering the relationship between law's legitimacy, its justification, and the obligation to obey the law. If legitimacy of law is seen as based on the law being justified (as in Raz's ‘service conception’), our duty to obey it does not follow automatically: it must be based on some additional arguments. Raz's conception of legitimate authority does not presuppose, as many critics claim, any unduly deferential attitude towards authorities. Disconnection of the law's legitimacy from the absolute duty to obey it leads to the critical scrutiny of the claim that the democratically adopted law is legitimate only insofar as it expresses the right moral values. This claim is shown to be, under one interpretation (‘motivational’), nearly meaningless or, under another interpretation (‘constitutional’), too strong to survive the pressure from moral pluralism.Less
This chapter prepares the ground for the discussion of legitimacy of democratic laws by considering the relationship between law's legitimacy, its justification, and the obligation to obey the law. If legitimacy of law is seen as based on the law being justified (as in Raz's ‘service conception’), our duty to obey it does not follow automatically: it must be based on some additional arguments. Raz's conception of legitimate authority does not presuppose, as many critics claim, any unduly deferential attitude towards authorities. Disconnection of the law's legitimacy from the absolute duty to obey it leads to the critical scrutiny of the claim that the democratically adopted law is legitimate only insofar as it expresses the right moral values. This claim is shown to be, under one interpretation (‘motivational’), nearly meaningless or, under another interpretation (‘constitutional’), too strong to survive the pressure from moral pluralism.
Aruna Nair
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199567751
- eISBN:
- 9780191705267
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199567751.003.0013
- Subject:
- Law, Law of Obligations, Philosophy of Law
The chapter considers the implications of the decision of the House of Lords in Kleinwort Benson v Lincoln City Council for an understanding of the nature of legal reasoning. It also considers the ...
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The chapter considers the implications of the decision of the House of Lords in Kleinwort Benson v Lincoln City Council for an understanding of the nature of legal reasoning. It also considers the implications of alternative models of legal reasoning for the substantive law relating to the recovery of benefits conferred under the influence of ‘mistakes of law’. In Kleinwort Benson, the House of Lords decided that a bank that had paid money to a local authority in reliance on a ‘settled interpretation of the law’, departed from by a later judicial decision, had made a mistake of law. They held that this mistake qualified as an ‘unjust factor’ entitling the bank to recover the money. It is argued, first, that Ronald Dworkin's explanation of the nature of legal reasoning cannot provide a plausible account of the facts of the case or of the response of the judges to those facts. It is claimed that this demonstrates the limitations of an analysis of legal reasoning that treats it as an individualistic process of moral reasoning; such an analysis cannot make sense of the way in which English law is experienced by those affected by it, as constrained, structured, and altered by a hierarchical system of authoritative decision-making. Secondly, it is argued that, if Dworkin's model of legal reasoning were applied in the context of the substantive law of unjust enrichment, unacceptable conclusions would follow. These can be avoided if a positivist account of law were accepted instead.Less
The chapter considers the implications of the decision of the House of Lords in Kleinwort Benson v Lincoln City Council for an understanding of the nature of legal reasoning. It also considers the implications of alternative models of legal reasoning for the substantive law relating to the recovery of benefits conferred under the influence of ‘mistakes of law’. In Kleinwort Benson, the House of Lords decided that a bank that had paid money to a local authority in reliance on a ‘settled interpretation of the law’, departed from by a later judicial decision, had made a mistake of law. They held that this mistake qualified as an ‘unjust factor’ entitling the bank to recover the money. It is argued, first, that Ronald Dworkin's explanation of the nature of legal reasoning cannot provide a plausible account of the facts of the case or of the response of the judges to those facts. It is claimed that this demonstrates the limitations of an analysis of legal reasoning that treats it as an individualistic process of moral reasoning; such an analysis cannot make sense of the way in which English law is experienced by those affected by it, as constrained, structured, and altered by a hierarchical system of authoritative decision-making. Secondly, it is argued that, if Dworkin's model of legal reasoning were applied in the context of the substantive law of unjust enrichment, unacceptable conclusions would follow. These can be avoided if a positivist account of law were accepted instead.
Scott Hershovitz (ed.)
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546145
- eISBN:
- 9780191706462
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546145.001.0001
- Subject:
- Law, Philosophy of Law
This book is a collection of essays examining the work of Ronald Dworkin in the philosophy of law and constitutionalism. A group of leading legal theorists develop, defend, and critique the major ...
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This book is a collection of essays examining the work of Ronald Dworkin in the philosophy of law and constitutionalism. A group of leading legal theorists develop, defend, and critique the major areas of Dworkin's work, including his criticism of legal positivism, his theory of law as integrity, and his work on constitutional theory. The volume concludes with a lengthy response to the essays by Dworkin himself, which develops and clarifies many of his positions on the central questions of legal and constitutional theory. The volume represents an ideal companion for students and scholars embarking on a study of Dworkin's work.Less
This book is a collection of essays examining the work of Ronald Dworkin in the philosophy of law and constitutionalism. A group of leading legal theorists develop, defend, and critique the major areas of Dworkin's work, including his criticism of legal positivism, his theory of law as integrity, and his work on constitutional theory. The volume concludes with a lengthy response to the essays by Dworkin himself, which develops and clarifies many of his positions on the central questions of legal and constitutional theory. The volume represents an ideal companion for students and scholars embarking on a study of Dworkin's work.
Carl F. Cranor
- Published in print:
- 1993
- Published Online:
- October 2011
- ISBN:
- 9780195074369
- eISBN:
- 9780199852932
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195074369.001.0001
- Subject:
- Philosophy, Philosophy of Science
This book in the philosophy of law and risk assessment is concerned with the topic of the standards of evidence in legal proceedings and regulatory decisions regarding the toxicity of chemicals. The ...
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This book in the philosophy of law and risk assessment is concerned with the topic of the standards of evidence in legal proceedings and regulatory decisions regarding the toxicity of chemicals. The book argues that the scientific and statistical criteria usually used to determine whether substances are toxic are too rigorous and time-consuming for evidentiary purposes in tort cases and for regulation. The result is the under-regulation of toxic substances and the under-compensation of plaintiffs in tort cases. The book proposes the evidential standards now used should be evaluated with the purposes of the law in mind.Less
This book in the philosophy of law and risk assessment is concerned with the topic of the standards of evidence in legal proceedings and regulatory decisions regarding the toxicity of chemicals. The book argues that the scientific and statistical criteria usually used to determine whether substances are toxic are too rigorous and time-consuming for evidentiary purposes in tort cases and for regulation. The result is the under-regulation of toxic substances and the under-compensation of plaintiffs in tort cases. The book proposes the evidential standards now used should be evaluated with the purposes of the law in mind.
John Braithwaite and Philip Pettit
- Published in print:
- 1992
- Published Online:
- October 2011
- ISBN:
- 9780198240563
- eISBN:
- 9780191680205
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198240563.001.0001
- Subject:
- Philosophy, Political Philosophy
This book offers a new approach to sentencing and punishment. It inaugurates a radical shift in the research agenda of criminology. The authors attack currently fashionable retributivist theories of ...
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This book offers a new approach to sentencing and punishment. It inaugurates a radical shift in the research agenda of criminology. The authors attack currently fashionable retributivist theories of punishment, arguing that the criminal justice system is so integrated that sentencing policy has to be considered in the system-wide context. They offer a comprehensive theory of criminal justice that draws on a philosophical view of the good and the right, and that points the way to practical intervention in the real world of incremental reform. The authors put the case for a criminal justice system that maximizes freedom in the old republican sense of the term, and that they call ‘dominion’.Less
This book offers a new approach to sentencing and punishment. It inaugurates a radical shift in the research agenda of criminology. The authors attack currently fashionable retributivist theories of punishment, arguing that the criminal justice system is so integrated that sentencing policy has to be considered in the system-wide context. They offer a comprehensive theory of criminal justice that draws on a philosophical view of the good and the right, and that points the way to practical intervention in the real world of incremental reform. The authors put the case for a criminal justice system that maximizes freedom in the old republican sense of the term, and that they call ‘dominion’.
Anthony J. Lisska
- Published in print:
- 1997
- Published Online:
- October 2011
- ISBN:
- 9780198269670
- eISBN:
- 9780191683732
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198269670.003.0010
- Subject:
- Religion, Philosophy of Religion
This concluding chapter discusses the prospects and pitfalls of Thomas Aquinas' natural law theory. It highlights the renewed interest in natural law theory in contemporary philosophy of law and ...
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This concluding chapter discusses the prospects and pitfalls of Thomas Aquinas' natural law theory. It highlights the renewed interest in natural law theory in contemporary philosophy of law and suggests that the re-emergence of natural law in both meta-ethics and in jurisprudence indicate the need that more work should be undertaken in these areas and a substantive theory of natural law should be developed. One of the most noted pitfalls of natural law is its close association with morality, which can lead to a repressive system of both law and morality.Less
This concluding chapter discusses the prospects and pitfalls of Thomas Aquinas' natural law theory. It highlights the renewed interest in natural law theory in contemporary philosophy of law and suggests that the re-emergence of natural law in both meta-ethics and in jurisprudence indicate the need that more work should be undertaken in these areas and a substantive theory of natural law should be developed. One of the most noted pitfalls of natural law is its close association with morality, which can lead to a repressive system of both law and morality.
Scott Soames
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691160726
- eISBN:
- 9781400850464
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691160726.003.0013
- Subject:
- Philosophy, American Philosophy
This chapter combines recent work on vagueness in the philosophy of language with recent work in the philosophy of law on the value of vagueness in certain legal situations. The question at issue is ...
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This chapter combines recent work on vagueness in the philosophy of language with recent work in the philosophy of law on the value of vagueness in certain legal situations. The question at issue is whether leading philosophical theories of what vagueness is can account for the positive utility of certain kinds of legal vagueness. The two theories put to the test are (i) epistemicism, according to which vagueness is a matter of irremediable ignorance of the sharp borderlines separating cases in which (totally defined) vague predicates apply from those in which their negations do; and (ii) the theory according to which vague predicates are (a) only partially defined, leaving a range of borderline cases in which there is no fact of the matter regarding the application or nonapplication of the predicates, and (b) context sensitive, which results in constantly shifting lines separating the defined from the undefined cases.Less
This chapter combines recent work on vagueness in the philosophy of language with recent work in the philosophy of law on the value of vagueness in certain legal situations. The question at issue is whether leading philosophical theories of what vagueness is can account for the positive utility of certain kinds of legal vagueness. The two theories put to the test are (i) epistemicism, according to which vagueness is a matter of irremediable ignorance of the sharp borderlines separating cases in which (totally defined) vague predicates apply from those in which their negations do; and (ii) the theory according to which vague predicates are (a) only partially defined, leaving a range of borderline cases in which there is no fact of the matter regarding the application or nonapplication of the predicates, and (b) context sensitive, which results in constantly shifting lines separating the defined from the undefined cases.
Nicola Lacey
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199202775
- eISBN:
- 9780191705953
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199202775.003.0008
- Subject:
- Law, Legal History
This chapter focuses on H. L. A. Hart's experiences as Chair of Jurisprudence at University College. Herbert's inaugural lecture as Professor of Jurisprudence, ‘Definition and Theory in ...
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This chapter focuses on H. L. A. Hart's experiences as Chair of Jurisprudence at University College. Herbert's inaugural lecture as Professor of Jurisprudence, ‘Definition and Theory in Jurisprudence’, delivered in 1953, which laid out the positive and substantive agenda which he saw as defining the autonomous terrain of a jurisprudence informed by analytical philosophy. The lecture set out Herbert's stall as a linguistic philosopher prepared both to bring the insights of philosophy to law, and to exploit his legal understanding to generate a fund of examples suitable for philosophical analysis.Less
This chapter focuses on H. L. A. Hart's experiences as Chair of Jurisprudence at University College. Herbert's inaugural lecture as Professor of Jurisprudence, ‘Definition and Theory in Jurisprudence’, delivered in 1953, which laid out the positive and substantive agenda which he saw as defining the autonomous terrain of a jurisprudence informed by analytical philosophy. The lecture set out Herbert's stall as a linguistic philosopher prepared both to bring the insights of philosophy to law, and to exploit his legal understanding to generate a fund of examples suitable for philosophical analysis.
Mark Greenberg
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546145
- eISBN:
- 9780191706462
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546145.003.0012
- Subject:
- Law, Philosophy of Law
This chapter argues that the most influential version of legal positivism — that associated with H. L. A. Hart — fails. The argument's engine is a requirement that a constitutive account of legal ...
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This chapter argues that the most influential version of legal positivism — that associated with H. L. A. Hart — fails. The argument's engine is a requirement that a constitutive account of legal facts must meet. According to this rational-relation requirement, it is not enough for a constitutive account of legal facts to specify non-legal facts that modally determine the legal facts. The constitutive determinants of legal facts must provide reasons for the obtaining of the legal facts. The chapter shows that the Hartian account is unable to meet this requirement. That officials accept a rule of recognition does not by itself constitute a reason why the standards specified in that rule are part of the law of the community. It is argued that it is false that understanding the explanatory significance of officials' acceptance of a rule is part of our reflective understanding of the nature of law.Less
This chapter argues that the most influential version of legal positivism — that associated with H. L. A. Hart — fails. The argument's engine is a requirement that a constitutive account of legal facts must meet. According to this rational-relation requirement, it is not enough for a constitutive account of legal facts to specify non-legal facts that modally determine the legal facts. The constitutive determinants of legal facts must provide reasons for the obtaining of the legal facts. The chapter shows that the Hartian account is unable to meet this requirement. That officials accept a rule of recognition does not by itself constitute a reason why the standards specified in that rule are part of the law of the community. It is argued that it is false that understanding the explanatory significance of officials' acceptance of a rule is part of our reflective understanding of the nature of law.
David Lyons
- Published in print:
- 1991
- Published Online:
- October 2011
- ISBN:
- 9780198239642
- eISBN:
- 9780191679971
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198239642.003.0001
- Subject:
- Philosophy, Political Philosophy, History of Philosophy
This chapter presents an interpretive study of Bentham's thought, focusing on two of his fundamental doctrines—the principle of utility and his conception of law. It suggests some new ways of reading ...
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This chapter presents an interpretive study of Bentham's thought, focusing on two of his fundamental doctrines—the principle of utility and his conception of law. It suggests some new ways of reading Bentham. It also discusses Bentham's life and work. One cannot read Bentham seriously without reflecting on the largest, most important problems in the philosophy of morality and law, and some general questions are discussed in the course of our interpretive explorations.Less
This chapter presents an interpretive study of Bentham's thought, focusing on two of his fundamental doctrines—the principle of utility and his conception of law. It suggests some new ways of reading Bentham. It also discusses Bentham's life and work. One cannot read Bentham seriously without reflecting on the largest, most important problems in the philosophy of morality and law, and some general questions are discussed in the course of our interpretive explorations.
Benjamin Hill and Henrik Lagerlund (eds)
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199583645
- eISBN:
- 9780191738456
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199583645.001.0001
- Subject:
- Philosophy, History of Philosophy, Philosophy of Religion
During the seventeenth century the Iberian Jesuit Francisco Suárez was considered one of the greatest philosophers of the age. He was the last great Scholastic thinker and profoundly influenced the ...
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During the seventeenth century the Iberian Jesuit Francisco Suárez was considered one of the greatest philosophers of the age. He was the last great Scholastic thinker and profoundly influenced the thought of his contemporaries within both Catholic and Protestant circles. He contributed across all fields of philosophy, from the natural law, ethics and political theory, to natural philosophy, the philosophy of mind, and philosophical psychology, and most importantly to metaphysics, ontology, and natural theology. Echoes of his thinking reverberate through Descartes, Locke, Leibniz, and beyond. Yet curiously Suárez has not been well‐studied by historians of philosophy. It is only recently that he has emerged as a significant subject of critical and historical investigation for historians of late medieval and early modern philosophy, and that small sections of Suárez’s magnum opus, the Metaphysical Disputations, have begun to be translated into English, French, and Italian. The historical task of interpreting Suárez’s thought is still in its infancy, and this volume of essays represents one of the first collections in English written by the leading figures largely responsible for this new trend in the history of philosophy. It covers all areas of Suárez’s philosophical contributions and contains cutting‐edge research, which is sure to shape and frame Suárez scholarship for years to come as well as the history of seventeenth‐century generally. It is an essential text for anyone interested in Suárez, the seventeenth‐century world of ideas, and late Scholastic or early modern philosophy.Less
During the seventeenth century the Iberian Jesuit Francisco Suárez was considered one of the greatest philosophers of the age. He was the last great Scholastic thinker and profoundly influenced the thought of his contemporaries within both Catholic and Protestant circles. He contributed across all fields of philosophy, from the natural law, ethics and political theory, to natural philosophy, the philosophy of mind, and philosophical psychology, and most importantly to metaphysics, ontology, and natural theology. Echoes of his thinking reverberate through Descartes, Locke, Leibniz, and beyond. Yet curiously Suárez has not been well‐studied by historians of philosophy. It is only recently that he has emerged as a significant subject of critical and historical investigation for historians of late medieval and early modern philosophy, and that small sections of Suárez’s magnum opus, the Metaphysical Disputations, have begun to be translated into English, French, and Italian. The historical task of interpreting Suárez’s thought is still in its infancy, and this volume of essays represents one of the first collections in English written by the leading figures largely responsible for this new trend in the history of philosophy. It covers all areas of Suárez’s philosophical contributions and contains cutting‐edge research, which is sure to shape and frame Suárez scholarship for years to come as well as the history of seventeenth‐century generally. It is an essential text for anyone interested in Suárez, the seventeenth‐century world of ideas, and late Scholastic or early modern philosophy.
Sotirios A. Barber and James E. Fleming
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780195328578
- eISBN:
- 9780199855339
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195328578.003.0002
- Subject:
- Law, Constitutional and Administrative Law
This chapter takes up the principal questions of constitutional interpretation and the assumptions underlying the enterprise of constitutional interpretation by considering William Rehnquist's ...
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This chapter takes up the principal questions of constitutional interpretation and the assumptions underlying the enterprise of constitutional interpretation by considering William Rehnquist's classic criticism of the notion of a “living constitution” and defense of a narrow originalism. It argues that fidelity to the Constitution as written — understood as a scheme of abstract moral principles or concepts like fairness rather than as a code of concrete historical conceptions of those concepts — requires what Ronald Dworkin has called a “fusion” of constitutional law and moral philosophy. Such a philosophic approach would require “judicial activism”, not “judicial deference”. It also would, as Dworkin argues, presuppose a moral objectivity of principle, not, as Rehnquist assumes, moral skepticism.Less
This chapter takes up the principal questions of constitutional interpretation and the assumptions underlying the enterprise of constitutional interpretation by considering William Rehnquist's classic criticism of the notion of a “living constitution” and defense of a narrow originalism. It argues that fidelity to the Constitution as written — understood as a scheme of abstract moral principles or concepts like fairness rather than as a code of concrete historical conceptions of those concepts — requires what Ronald Dworkin has called a “fusion” of constitutional law and moral philosophy. Such a philosophic approach would require “judicial activism”, not “judicial deference”. It also would, as Dworkin argues, presuppose a moral objectivity of principle, not, as Rehnquist assumes, moral skepticism.
Sotirios A. Barber and James E. Fleming
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780195328578
- eISBN:
- 9780199855339
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195328578.003.0010
- Subject:
- Law, Constitutional and Administrative Law
This chapter defends the philosophic approach to constitutional interpretation. This thinking for oneself must be conducted with an attitude of self-criticism, seeing constitutional interpretation as ...
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This chapter defends the philosophic approach to constitutional interpretation. This thinking for oneself must be conducted with an attitude of self-criticism, seeing constitutional interpretation as a self-critical quest for the best understanding of the Constitution. The chapter emphasizes that the philosophic approach does not involve judges or other interpreters doing moral and political philosophy without regard to the commitments of our constitutional order. But it does involve judges making philosophic choices in elaborating the meanings of our constitutional commitments. Some jurists and scholars have objected that judges simply are not capable of discharging this responsibility. In fact, the chapter shows that all the philosophic approach requires is that judges take responsibility for the kinds of philosophic choices that they have been making all along. It also defends the philosophic approach against charges that it is undemocratic, un-American, and dangerous. It shows how it does not exclude considerations of constitutional meaning associated with other approaches but in fact represents a fusion of several approaches.Less
This chapter defends the philosophic approach to constitutional interpretation. This thinking for oneself must be conducted with an attitude of self-criticism, seeing constitutional interpretation as a self-critical quest for the best understanding of the Constitution. The chapter emphasizes that the philosophic approach does not involve judges or other interpreters doing moral and political philosophy without regard to the commitments of our constitutional order. But it does involve judges making philosophic choices in elaborating the meanings of our constitutional commitments. Some jurists and scholars have objected that judges simply are not capable of discharging this responsibility. In fact, the chapter shows that all the philosophic approach requires is that judges take responsibility for the kinds of philosophic choices that they have been making all along. It also defends the philosophic approach against charges that it is undemocratic, un-American, and dangerous. It shows how it does not exclude considerations of constitutional meaning associated with other approaches but in fact represents a fusion of several approaches.
H. L. A. Hart
- Published in print:
- 1983
- Published Online:
- March 2012
- ISBN:
- 9780198253884
- eISBN:
- 9780191681431
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198253884.003.0004
- Subject:
- Law, Philosophy of Law
This chapter discusses the problems of the philosophy of law. It is more important to distinguish certain groups of questions as belonging to the philosophy of law. Three such groups of problems may ...
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This chapter discusses the problems of the philosophy of law. It is more important to distinguish certain groups of questions as belonging to the philosophy of law. Three such groups of problems may be distinguished: problems of definition and analysis, problems of legal reasoning, and problems of the criticism of law. Objections to these are also considered. The theory of social contract focuses on two aspects of the obligation of obedience to law. It is also possible to detach from what is mythical or otherwise objectionable in contract theory certain considerations which show that the obligation to obey the law may be regarded as the obligation of fairness to others, which is independent of and may conflict with utility.Less
This chapter discusses the problems of the philosophy of law. It is more important to distinguish certain groups of questions as belonging to the philosophy of law. Three such groups of problems may be distinguished: problems of definition and analysis, problems of legal reasoning, and problems of the criticism of law. Objections to these are also considered. The theory of social contract focuses on two aspects of the obligation of obedience to law. It is also possible to detach from what is mythical or otherwise objectionable in contract theory certain considerations which show that the obligation to obey the law may be regarded as the obligation of fairness to others, which is independent of and may conflict with utility.
Mónica García-Salmones Rovira
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199685202
- eISBN:
- 9780191765407
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199685202.003.0003
- Subject:
- Law, Public International Law, Philosophy of Law
This chapter examines the work of Lassa Oppenheim, analysing him as a figure connecting several traditions and as the initiator of an important strand of twentieth-century internationalism in ...
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This chapter examines the work of Lassa Oppenheim, analysing him as a figure connecting several traditions and as the initiator of an important strand of twentieth-century internationalism in international law, pragmatism, with its intellectual origin in the British Empire. It argues that Oppenheim's work was truly groundbreaking in its modernity and in its vision of a liberal-economic, positivist legal international order. It shows that his economic idea of a Family of Nations remains a key notion of international law, but the past century has given time to problematize its legal content, check its self-complacency, and its consequences in practice.Less
This chapter examines the work of Lassa Oppenheim, analysing him as a figure connecting several traditions and as the initiator of an important strand of twentieth-century internationalism in international law, pragmatism, with its intellectual origin in the British Empire. It argues that Oppenheim's work was truly groundbreaking in its modernity and in its vision of a liberal-economic, positivist legal international order. It shows that his economic idea of a Family of Nations remains a key notion of international law, but the past century has given time to problematize its legal content, check its self-complacency, and its consequences in practice.
James Bernard Murphy
- Published in print:
- 2005
- Published Online:
- October 2013
- ISBN:
- 9780300107883
- eISBN:
- 9780300138016
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300107883.003.0001
- Subject:
- Law, Philosophy of Law
This introductory chapter begins by considering the meaning of positive law. It then discusses debates over the relative importance of nature and convention in explaining many kinds of human conduct; ...
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This introductory chapter begins by considering the meaning of positive law. It then discusses debates over the relative importance of nature and convention in explaining many kinds of human conduct; how the discourse of positive law takes its starting point from theories that have already transcended the nature-convention dichotomy; the logic of nature, custom, and enactment; positive language and positive law; the quandaries of positive law; and legal positivism and the end of positive law.Less
This introductory chapter begins by considering the meaning of positive law. It then discusses debates over the relative importance of nature and convention in explaining many kinds of human conduct; how the discourse of positive law takes its starting point from theories that have already transcended the nature-convention dichotomy; the logic of nature, custom, and enactment; positive language and positive law; the quandaries of positive law; and legal positivism and the end of positive law.
