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Abstract
Contemporary legal philosophy is predominantly anti-naturalistic. This is true of natural law theory, but also, more surprisingly, of legal positivism. Several prominent legal philosophers have in fact argued that the kind of questions that legal philosophers are interested in cannot be naturalized, such that a naturalistic legal philosophy is something of a contradiction in terms. Against the dominant view I argue that there are arguable naturalistic versions of both legal positivism and natural law. Much of the essay is dedicated to showing that such views are possible: I identify naturalistic versions of a “natural law” view, a “positivist” view, as well as a “semi positivist” view, all of which are variants of the familiar (anti-naturalistic) views defended under these labels. I also offer a tentative argument in support of a naturalistic positivist view, one that has more in common with the views of Thomas Hobbes and Jeremy Bentham than with the anti-naturalistic positivist views popular these days.
This article discusses the penalties for intoxicated drivers in Malaysia under both positive and natural laws.
In this paper, I sketch out and assess two readings of Bentham's theory of meaning, one reductive (Section 2), the other quasi‐pragmatist (Section 3)—both implicating Bentham's ontological and epistemological views. I focus on the way these readings would understand Bentham's analyses of claims in moral and political discourse that rely on putatively normative notions such as obligations and rights, good and bad, and what ought to be the case. I conclude the paper by suggesting tentatively that the independent merits of both readings could signal an irreconcilable tension at the heart of Bentham's thought (Section 4).
ABSTRAKTindak Pidana Perdagangan Orang telah meluas dalam bentuk jaringan kejahatan baik terorganisir maupun tidak terorganisir. Indonesia sebagai Negara hukum telah memiliki paying hukum terkait dengan Tindak Pidana Perdagangan Orang yaitu UU No. 21 tahun 2007 tentang Pemberantasan Tindak Pidana Perdagangan Orang. Aturan tersebut sebenarnya telah mengatur mengenai pidana minimal khusus, namun kenyataannya masih ada hakim yang memutus di bawah pidana minimal khusus, salah satunya adalah Putusan Nomor 475/Pid.Sus/2018/PN.Bkn jo Putusan Nomor 72/Pid.Sus/2018/PT PBR. Penelitian ini bertujuan untuk mengkaji dan mengetahui kebebasan hakim dalam mengambil putusan terhadap tindak pidana perdagangan orang berdasarkan UU No. 21 Tahun 2007 Tentang Tindak Pidana Perdagangan Orang dengan ancaman pidana minimum khusus pada saat inisert auntuk mengkaji dan mengetahui faktor-faktor yang menyebabkan hakim memutus perkara di bawah sanksi minimum. Metode penelitian pada tesis ini menggunakan jenis penelitian digunakan dalam penulisan hukum ini adalah penelitian hukum normatif, yaitu pendekatan yang dilakukan dengan cara meneliti bahan pustaka atau data sekunder terhadap azas-azas hukum serta studi kasus yang dengan kata lain sering disebut sebagai penelitian hukum kepustakaan. Hasil penelitian dapat dibagi menjadi dua, yaitu: pertama, kebebasan hakim dalam mengambil putusan terhadap tindak pidana perdagangan orang berdasarkan UU No. 21 tahun 2007 tentang Tindak Pidana Perdagangan Orang dengan ancaman pidana minimum khusus menurut Kode Etik dan Pedoman Perilaku Hakim, dapat dilakukan karena hakim harus berperilaku adil. Sedangkan dalam Putusan Nomor 475/Pid.Sus/2018/PN.Bkn jo Putusan Nomor 72/Pid.Sus/2018/PT PBR dikaitkan dengan paradigma positivisme sangatlah bertentangan, sebab tidak memebuhi prinsip bebas nilai serta menjawab pertanyaan why, sehingga jauh dari aturan yang ada. Kedua, Faktor-faktor yang menyebabkan hakim memutus perkara di bawah sanksi minimum ada tiga, yaitu: faktor hukum, faktor pribadi hakim, sertafaktorfaktahukumpersidangan. Terkait Putusan Nomor 475/Pid.Sus/2018/PN.Bkn jo Putusan Nomor 72/Pid.Sus/2018/PT PBR yang diputus di bawah aturan minimum khusus disebabkan karena terdapat keadaan yang meringankan dalam fakta hukum persidanganKata Kunci: kebebasan hakim; tindak pidana perdagangan orang; paradigma positivisme.ABSTRACTHuman Trafficking has expanded in the form of organized and unorganized crime networks. Indonesia as a state of law already has a legal umbrella related to the Law on Elimination of Human Trafficking Crimes (Law No. 21/2007). The regulation has actually regulated the special minimal criminal law, but in reality there are still judges who decide under the special minimal criminal, one of which is Decision Number 475/Pid.Sus/2018/ PN.Bknjo Decision Number 72/Pid.Sus/2018/PT PBR. This study aims to examine and find out the freedom of judges in making decisions against trafficking in persons based on Law on Elimination of Human Trafficking Crimes (Law No. 21/2007) with specific minimum criminal threats at present as well as to examine and find out the factors that have caused judges to decide cases under minimum sanctions.The research method in this thesis uses the type of research used in writing this law is normative legal research, which is an approach carried out by examining library materials or secondary data on legal principles and case studies which in other words are often referred to as library law research. The results of the study can be divided into two, namely: first, the freedom of judges to take decisions on trafficking in persons based Law on Elimination of Human Trafficking Crimes (Law No. 21/2007) with specific minimum criminal threats according to the Code of Ethics and the Code of Conduct for Judges, can be done because judges must behave fairly. Whereas in Decision Number 475/Pid.Sus/2018/ PN.Bknjo Decision Number 72/Pid.Sus/2018/PT PBR is associated with the positivism paradigm is very contradictory, because it does not fulfill the principle of free values and answer the question why, so far from the rules which exists. Second, there are three factors that cause judges to decide a case under a minimum sanction, namely: legal factors, personal factors of judges, as well as legal facts in court proceedings. Regarding Decision Number 475/Pid.Sus/2018/PN.Bknjo Decision Number 72/Pid.Sus/2018/PT PBR which was decided under a special minimum rule is due to a mitigating situation in the legal facts of the trial.Keywords: freedom of judges; criminal trafficking in persons; positivism paradigm.
Some things stay the same, and some things change. We know more about some of the issues addressed in this book than we did when it was written. I have made changes, some small and some larger, to bring the discussion up to date. There are new footnotes and lots of new references, of course. Some larger modifications are made in the substantive discussions. In Chapter 1 I say a little more to preview the importance of correlation that is to be the main theme in Chapter 3. I refer to correlation set up by local interaction in the form of bargaining with neighbors. This is work done with Jason McKenzie Alexander that was produced subsequent to the publication of the first edition. I also make a historical correction: Darwin himself really cracked the sex ratio puzzle. I am more circumspect in Chapter 2 about the connection between rationality and backward induction, perhaps one might say evasive, since I do not want to plunge into the counterfactual reasoning involved. That is not what this book is about. I change terminology from “modular rationality” to “sequential rationality” to bring it into alignment with the standard terminology in the game theory literature. The empirical discussion of behavior in ultimatum bargaining now includes the work of anthropologists, which reveals great variability across small-scale societies. This fits well with a discussion of framing of social norms that was only hinted at in the first edition. There is a reference to new work with Kevin Zollman on a model of such framing.
Talk of linguistic universals has given cognitive scientists the impression that languages are all built to a common pattern. In fact, there are vanishingly few universals of language in the direct sense that all languages exhibit them. Instead, diversity can be found at almost every level of linguistic organization. This fundamentally changes the object of enquiry from a cognitive science perspective. This target article summarizes decades of cross-linguistic work by typologists and descriptive linguists, showing just how few and unprofound the universal characteristics of language are, once we honestly confront the diversity offered to us by the world's 6,000 to 8,000 languages. After surveying the various uses of “universal,” we illustrate the ways languages vary radically in sound, meaning, and syntactic organization, and then we examine in more detail the core grammatical machinery of recursion, constituency, and grammatical relations. Although there are significant recurrent patterns in organization, these are better explained as stable engineering solutions satisfying multiple design constraints, reflecting both cultural-historical factors and the constraints of human cognition.
Linguistic diversity then becomes the crucial datum for cognitive science: we are the only species with a communication system that is fundamentally variable at all levels. Recognizing the true extent of structural diversity in human language opens up exciting new research directions for cognitive scientists, offering thousands of different natural experiments given by different languages, with new opportunities for dialogue with biological paradigms concerned with change and diversity, and confronting us with the extraordinary plasticity of the highest human skills.
Interpretation has emerged in recent years as one of the most interesting and important elements of legal scholarship. This collection of new essays in law and interpretation provides an overview of this important topic, written by some of the most distinguished scholars in the field. The collection assesses the role of legislative intent in the interpretation of statutes, and in determining legal standards. This collection will appeal not only to lawyers and to legal theorists, but to all scholars of legal discourse.
A new theory of the evolution of human cognition and human social life that emphasizes the role of information sharing across generations.
Over the last three million years or so, our lineage has diverged sharply from those of our great ape relatives. Change has been rapid (in evolutionary terms) and pervasive. Morphology, life history, social life, sexual behavior, and foraging patterns have all shifted sharply away from those of the other great apes. In The Evolved Apprentice, Kim Sterelny argues that the divergence stems from the fact that humans gradually came to enrich the learning environment of the next generation. Humans came to cooperate in sharing information, and to cooperate ecologically and reproductively as well, and these changes initiated positive feedback loops that drove us further from other great apes.
Sterelny develops a new theory of the evolution of human cognition and human social life that emphasizes the gradual evolution of information-sharing practices across generations and how these practices transformed human minds and social lives. Sterelny proposes that humans developed a new form of ecological interaction with their environment, cooperative foraging. The ability to cope with the immense variety of human ancestral environments and social forms, he argues, depended not just on adapted minds but also on adapted developmental environments.
Bradford Books imprint
This book provides a comprehensive analysis of contemporary debates about the fundamental nature of law—an issue that has been at the heart of legal philosophy for centuries. What the law is seems to be a matter of fact, but this fact has normative significance: it tells people what they ought to do. The book argues that the myriad questions raised by the factual and normative features of law actually depend on the possibility of reduction—whether the legal domain can be explained in terms of something else, more foundational in nature. In addition to exploring the major issues in contemporary legal thought, the book provides a critical analysis of the people and ideas that have dominated the field in past centuries. It will be essential reading for anyone curious about the nature of law.
This is a new edition - with a substantial new introduction - of a book which has had a significant impact on economics, philosophy and political science. Robert Sugden shows how conventions of property, mutual aid, and voluntary supply of public goods can evolve spontaneously out of the interactions of self-interested individuals, and can become moral norms. Sugden was among the first social scientists to use evolutionary game theory. His approach remains distinctive in emphasizing psychological and cultural notions of salience.
Psychology, the study of the mind, was until late in the nineteenth century considered part of philosophy. An important catalyst in it gaining independence was when researchers in the field began adopting the experimental methods of the natural sciences. Fairly quickly, a gulf was created between the psychologists, who increasingly turned to ‘external’ means of enquiry, and the philosophers who continued to rely on introspection.1 These methods soon led to opposed substantive paradigms to the explanation of human nature: in psychology, behaviourism was the leading theory of the day; in philosophy it was theories that emphasised ‘understanding’, the examination of the workings of human reason as understood from ‘within’.
This book develops ideas on some of the central questions in practical philosophy: legal, political, and moral. It provides an overview of the author's work on jurisprudence and the nature of law in the context of broader questions in the philosophy of practical reason. The book opens with a discussion of methodological issues, focusing on understanding the nature of jurisprudence, asking how the nature of law can be explained, and how the success of a legal theory can be established. The book then addresses central questions on the nature of law, its relation to morality, the nature and justification of authority, and the nature of legal reasoning. It explains how legitimate law, while being a branch of applied morality, is also a relatively autonomous system, which has the potential to bridge moral differences among its subjects. The book offers responses to some critical reactions to the author's theory of authority, adumbrating and modifying the theory to meet some of them. The final part of the book brings together for the first time the author's work on the nature of interpretation in law and the humanities. It includes a new chapter explaining interpretive pluralism and the possibility of interpretive innovation.
How do laws resemble rules of games, moral rules, personal rules, rules found in religious teachings, school rules, and so on? Are laws rules at all? Are they all made by human beings? And if so how should we go about interpreting them? How are they organized into systems, and what does it mean for these systems to have 'constitutions'? Should everyone want to live under a system of law? Is there a special kind of 'legal justice'? Does it consist simply in applying the law of the system? And how does it relate to the ideal of 'the rule of law'? These and other classic questions in the philosophy of law form the subject-matter of this book. Taking an agenda broadly from H.L.A. Hart's The Concept of Law (1961), this book shows how the key ideas in that work live on, and how they have been and can still be improved in modest ways to meet important criticisms - in some cases by concession, in some cases by circumvention, and in some cases by restatement. In the process the book engages with key ideas of other modern giants of the subject including Kelsen, Holmes, Raz, and Dworkin.
The author is widely recognized as the leading philosophical interpreter of the jurisprudence of American Legal Realism, as well as the most influential proponent of the relevance of the naturalistic turn in philosophy to the problems of legal philosophy. This volume collects newly revised versions of ten of his best-known essays, which set out his reinterpretation of the Legal Realists as prescient philosophical naturalists; critically engage with jurisprudential responses to Legal Realism, from legal positivism to Critical Legal Studies; connect the Realist program to the methodology debate in contemporary jurisprudence; and explore the general implications of a naturalistic world view for problems about the objectivity of law and morality. He has supplied a lengthy new introductory essay, as well as postscripts to several of the essays, in which he responds to challenges to his interpretive and philosophical claims by academic lawyers and philosophers. © Brian Leiter, 2007, except where indicated. All rights reserved.
After giving different meanings for naturalism, this article discusses Wittgenstein and Bouwsma; the scope of naturalism; the ontology of imperialistic and non-imperialistic naturalism; naturalized epistemology and the problem of normativity; naturalized ethics; naturalizing normativity; and some thoughts on relativism. The discussion closes with Dewey's insight that 'Moral science is not something with a separate province. It is physical, biological, and historic knowledge placed in a humane context where it will illuminate and guide the activities of men'.
This book is a collection of 14 essays; 11 of these have been previously published and three are new. All but one of them have been written since 1993 when my essay collection Supervenience and Mind appeared. Essays used in the monographs, Mind in a Physical World and Physicalism, Or Something Near Enough, have been excluded. The book begins with four essays on emergence and related issues; in one way or another, each of these essays raises difficulties for the idea of emergence. In particular, the last essay casts serious doubt on the intelligibility of the very idea of ontological emergence (distinguished from epistemological emergence). These essays are followed by two essays on explanation of action. Both stress the centrality and priority of the agent's first-person point of view in understanding actions. The second of the two, which is new, develops an agent-centered normative account of action explanation, in opposition to the prevailing third-person approaches such as the causal and nomological models. The next group of four essays addresses various issues about explanation, such as explanatory realism, explanatory exclusion, reduction and reductive explanation, and what a philosophical theory of explanation should be like. Mental causation and physicalism are the concerns of the next three papers. One of these examines Donald Davidson's defense of mental causation within his anomalous monism. Another discusses Sydney Shoemaker's recent analysis of realization (the "subset view") and his defense of mental causation. The last essay of the book addresses the issue of laws in the special sciences, offering three arguments to show that there are no such laws. The first begins with a consideration of Davidson's argument for the claim that there are no strict laws about the mental; the second builds on J.J.C. Smart's observations on biology and its relation to physics; and the third is based on my earlier work on multiple realization.
Is the science of moral cognition usefully modeled on aspects of Universal Grammar? Are human beings born with an innate “moral grammar” that causes them to analyze human action in terms of its moral structure, with just as little awareness as they analyze human speech in terms of its grammatical structure? Questions like these have been at the forefront of moral psychology ever since John Mikhail revived them in his infl uential work on the linguistic analogy and its implications for jurisprudence and moral theory. In this seminal book, Mikhail offers a careful and sustained analysis of the moral grammar hypothesis, showing how some of John Rawls’ original ideas about the linguistic analogy, together with famous thought experiments like the trolley problem, can be used to improve our understanding of moral and legal judgment. The book will be of interest to philosophers, cognitive scientists, legal scholars, and other researchers in the interdisciplinary fi eld of moral psychology.
Normativity is thought to be a problem for naturalists because the explanatory modalities of the empirical sciences do not make any reference to deontic or normative properties related to reasons, as distinct from nomic or descriptive ones. Naturalistic explanations operate in the idiom of causes, not norms, and casual mention of norms in such explanations are always shorthand for causal explanations that are norm-free. Thus, for the naturalist, what we call normativity is simply an artifact of the psychological properties of certain biological organisms, i.e., what they feel or believe or desire (or are disposed to feel, believe, or desire). I consider and respond to three objections to this naturalistic view of normativity. First, naturalism is self-refuting, since the naturalistic outlook itself presupposes epistemic norms whose status is not naturalistically vindicated. Second, naturalism imposes domain-specific standards on domains of thought where they do not belong. Third, naturalism fails to do justice to the real, practical nature of normativity: it can explain what we call normativity, but it can not explain real normativity. I argue that none of these objections succeed.
This article argues that the key elements of the prima facie case of harmful battery may form critical building blocks of moral cognition in both humans and nonhuman animals. By contrast, at least some of the rules and representations presupposed by familiar justifications to battery appear to be uniquely human. The article also argues that many famous thought experiments in ethics and many influential experiments in moral psychology rely on harmful battery scenarios without acknowledging this fact or considering its theoretical or empirical implications. The unifying factor in all these studies is goal-directed harmful contact, inflicted without consent or justification.
This essay -- for the UVA conference on "Jurisprudence and History" -- offers an account of Marx’s theory of history and his claim that law (and morality) are "ideological," and then asks what theory of law is adequate to explain the way the Marxist theory understands law in both its ideological and non-ideological senses. In Marx's theory we need to be able to say what law is in three contexts: (1) there are the laws that constitute the relations of production, i.e., the scheme of property rights in the existing forces of production; (2) there are the laws (and associated legal beliefs, e.g., "you are entitled to equal protection of the law") that are superstructural and ideological in the pejorative sense; and (3) there are the laws that are non-ideological and superstructural because they characterize the legal relations of a non-class-based, i.e., a communist, society. I explain these different senses of law in Marx's theory and then argue that legal positivism, unlike other views about the nature of law, gives us a sensible explanation of law for purposes of the Marxist theory of historical change. That fact, in turn, gives us another data point in favor of positivism as the only serious explanation of the concept of law.
“Legal Realism” now has sufficient cache that scholars from many different fields and countries compete to claim the mantle of the "Realist program": from political scientists who study judicial behavior, to the "law and society" scholars associated with the Wisconsin New Legal Realism project, to philosophers interested in a naturalized jurisprudence. But what does it mean to be a “legal realist”? What unites the two most famous “old” Legal Realisms — the American and the Scandinavian — with the “new legal realism” invoked, variously, by sociologists, anthropologists, and political scientists, among others? There are, of course, other “legal realisms,” old and new, from the “free law” movement in Germany more than a century ago, to the Italian realism of the Genoa School today. My focus, however, shall be on the old and new Realisms that are probably most familiar. Is there anything they all share? I argue that (1) American and Scandinavian Realism have almost nothing in common — indeed, that H.L.A. Hart misunderstood the latter as he did the former, and that the Scandinavians are closer to Hart and even Kelsen than they are to the Americans; (2) all Realists share skepticism about the causal efficacy of legal doctrine in explaining judicial decisions ("the Skeptical Doctrine") (though the Scandinavian skepticism on this score is not at all specific to the legal domain, encompassing all explanation in terms of norms); (3) American Realism almost entirely eschewed social-scientific methods in its defense of the Skeptical Doctrine, contrary to the impression given by much recent work by "new" legal realists; (4) the myth that the American Realists were seriously interested in social science derives mainly from two unrepresentative examples, Underhill Moore's behaviorism and Llewellyn's work with the Cheyenne Indians. Moore's case is a cautionary note in taking au courant social science too seriously; and Llewellyn's work was necessitated by the fact that the "primitive" peoples he wanted to study did not write their judicial opinions down. For any modern legal culture, such "field work" would be unnecessary on Llewellyn's view.
In this article I discuss a number of issues raised by Professor Jules Coleman's recent article “Beyond the Separability Thesis.” I suggest, to begin, that Coleman is correct that neither a narrow nor a broad formulation of the separability thesis takes us very far towards a robust distinction between legal positivism and legal non-positivism. I then offer a brief discussion of methodology in jurisprudence, suggesting that Coleman accepts, at least implicitly, what I call a “methodology of necessary features.” Since there is reason to think that law possesses some necessary features that are non-normative (or descriptive) and others that are moral in character, the promise of this pluralistic approach is that it will be capable of bridging the gap between so-called “descriptive” and “normative” theories of methodology in jurisprudence. Since the distinction between descriptive and normative methodological theories is sometimes taken to be one way, among others, of drawing a distinction between positivist and non-positivist theories of law, the pluralism of the “methodology of necessary features” gives us yet one more reason to think that the distinction between positivism and non-positivism is not a theoretically fundamental one. Finally, I discuss Coleman's “moral semantics claim,” i.e., the idea that “legal content is best understood as moral directives about what is to be done and who is to decide what is to be done.” Coleman acknowledges that the moral semantics claim, when taken together with the social facts thesis, raises a well-known problem: How can social facts create content-independent reasons for action? I suggest that we are most likely to find the answer to this question by focusing directly on whether or not law's claimed moral authority - meaning its claimed moral power - can be justified, rather than by focusing indirectly, as many theorists have done, on the existence or non-existence of a general obligation to obey the law.
General jurisprudence - that branch of legal philosophy concerned with the nature of law and adjudication - has been relatively unaffected by the "naturalistic" strains so evident, for example, in the epistemology, philosophy of mind and moral philosophy of the past forty years. This paper sketches three ways in which naturalism might affect jurisprudential inquiry. The paper serves as a kind of precis of the main themes in my book NATURALIZING JURISPRUDENCE: ESSAYS ON AMERICAN LEGAL REALISM AND NATURALISM IN LEGAL PHILOSOPHY (Oxford University Press, 2007).
I argue in this essay that the popular “descriptive” approach to jurisprudence can be modeled after attempts at explaining natural phenomena by scientists. I present four assumptions that are underlying this approach to jurisprudence, which are similar to those of natural scientists. I then argue, however, that in the case of jurisprudence (and unlike the natural sciences) these assumptions contradict each other. After presenting my case I respond to several potential replies to my argument. If my arguments are correct, this shows that jurisprudential descriptivism is not just, as some have argued, unimportant, but rather that it is impossible. The suggests that those who claim to offer an account of the “nature” of law are in fact doing something else.
Legal philosophers have been preoccupied with specifying the differences between two systems of normative guidance that are omnipresent in all modern human societies: law and morality. Positivists such as Kelsen, Hart, and Raz propose a solution to this “Demarcation Problem” according to which the legal validity of a norm can not depend on its being morally valid, either in all or at least some possible legal systems. The proposed analysis purports to specify the essential and necessary features of law in virtue of which this is true. Yet the concept of law is an “artifact concept,” that is, a concept that picks out a phenomenon that owes its existence to human activities. Artifact concepts, even simple ones like “chair,” are notoriously resistant to analyses in terms of their essential attributes, precisely because they are hostage to human ends and purposes, and also can not be individuated by their natural properties. 20th-century philosophy of science dealt with a kindred Demarcation Problem: how to demarcate epistemically reliable forms of inquiry from epistemically unreliable ones, that is, how to demarcate science from pseudo-science or nonsense. Like the legal philosophers, they sought to identify the essential properties of a human artifact (namely, science). They failed, and spectacularly so, which led some philosopher to wonder, “Why does solving the Demarcation Problem matter?” This essay develops the lessons for legal philosophy from this episode and its philosophical aftermath, and concludes that, lest we want to become embroiled in pointless Fullerian speculations about the effects of jurisprudential doctrines on behavior, it is time to abandon the Demarcation Problem in jurisprudence.
This essay rethinks the history and understanding of the debate between legal positivism and natural law. It does so by distinguishing between classical legal positivism, represented by the work of Thomas Hobbes and Jeremy Bentham, and contemporary legal positivism, the one familiar from self-styled positivists works in the last fifty years. I argue that the difference between the two is that classical legal positivism sought to provide a theory of law within a broader account of nature (including human nature), whereas what is characteristic of contemporary legal positivism is its rejection of this approach. This distinction is valuable for understanding the historical path of jurisprudence as the approach of the classical legal positivists is similar to the one found in the work of many natural lawyers, both classical and contemporary. What separates classical legal positivists from the natural lawyers is thus not - contrary to claims by contemporary legal positivists - that the classical legal positivist were the first to argue that "legal validity" does not depend on the moral soundness of a legal norm. Rather, they disagreed on the correct account of nature and human nature. Nonetheless, both classical legal positivism and natural law are similar in seeking to place a theory of law within a broader theoretical perspective. The difference is significant both for understanding the views of Bentham or Hobbes (neither of which was particularly interested in identifying tests of "validity") but also for suggesting that the future of legal theory lies in returning to the views of the classical legal positivists and abandoning the approach that has dominated jurisprudence, and legal positivism in particular, since Hart's Concept of Law.
For a long time philosophy has been unique among the humanities for seeking closer alliance with the sciences. In this essay I examine the place of science in the context of jurisprudential debates, in particular in the context of the idea known as legal positivism. I argue that historically legal positivism has been advanced by theorists who were also positivists in the sense the term is used in the philosophy of social science, i.e. they were committed to the idea that the explanation of social phenomena should be conducted using similar methods to those used in the natural sciences. I then argue that around the 1960’s jurisprudence and in particular legal positivism have undergone change towards anti-positivism. Central to this trend was the idea that proper jurisprudential inquiry must be conducted from the “internal point of view.” What this view amounted to was an attempt combine a scientific-like aim of neutral description with a humanistic method of inquiry. It thus did not entirely abandon its links with scientific inquiry, but has radically changed their nature. I show that this stance had a negative impact of narrowing down the range of issues discussed and of the kind of method considered appropriate for discussing these questions, I then argue that to counter current these isolationist trends jurisprudence would benefit from reorientation of its midway position between science and the humanities in the opposite direction: its aims should be those traditionally associated with the humanities but its methodology should be much closer to that of the sciences.
In this essay I argue that to understand debates in jurisprudence one needs to distinguish clearly between four concepts: validity, content, normativity, and legitimacy. More specifically I show that debates between legal positivists and Dworkin should be understood not, as it is often said, as debates on the conditions of validity, but rather as debates on the right way of understanding the relationship between these four concepts. After presenting the two different ways in which legal positivists and Dworkin understand this relationship, I argue that the Dworkinian approach is superior to the positivist one. The positivist account begins with an attempt to explain the conditions of validity and to leave the question of assessment of valid legal norms to the second stage of inquiry. But though appealing, I argue that the notion of validity cannot be given sense outside a preliminary consideration of legitimacy.
Behavioral scientists routinely publish broad claims about human psychology and behavior in the world's top journals based on samples drawn entirely from Western, Educated, Industrialized, Rich, and Democratic (WEIRD) societies. Researchers - often implicitly - assume that either there is little variation across human populations, or that these "standard subjects" are as representative of the species as any other population. Are these assumptions justified? Here, our review of the comparative database from across the behavioral sciences suggests both that there is substantial variability in experimental results across populations and that WEIRD subjects are particularly unusual compared with the rest of the species - frequent outliers. The domains reviewed include visual perception, fairness, cooperation, spatial reasoning, categorization and inferential induction, moral reasoning, reasoning styles, self-concepts and related motivations, and the heritability of IQ. The findings suggest that members of WEIRD societies, including young children, are among the least representative populations one could find for generalizing about humans. Many of these findings involve domains that are associated with fundamental aspects of psychology, motivation, and behavior - hence, there are no obvious a priori grounds for claiming that a particular behavioral phenomenon is universal based on sampling from a single subpopulation. Overall, these empirical patterns suggests that we need to be less cavalier in addressing questions of human nature on the basis of data drawn from this particularly thin, and rather unusual, slice of humanity. We close by proposing ways to structurally re-organize the behavioral sciences to best tackle these challenges.
Theorists are converging from quite different quarters on a version of the global neuronal workspace model of consciousness, but there are residual confusions to be dissolved. In particular, theorists must resist the temptation to see global accessibility as the cause of consciousness (as if consciousness were some other, further condition); rather, it is consciousness. A useful metaphor for keeping this elusive idea in focus is that consciousness is rather like fame in the brain. It is not a privileged medium of representation, or an added property some states have; it is the very mutual accessibility that gives some informational states the powers that come with a subject's consciousness of that information. Like fame, consciousness is not a momentary condition, or a purely dispositional state, but rather a matter of actual influence over time. Theorists who take on the task of accounting for the aftermath that is critical for consciousness often appear to be leaving out the Subject of consciousness, when in fact they are providing an analysis of the Subject, a necessary component in any serious theory of consciousness.
People are selfish, yet morally motivated. Morality is universal, yet culturally variable. Such apparent contradictions are
dissolving as research from many disciplines converges on a few shared principles, including the importance of moral intuitions,
the socially functional (rather than truth-seeking) nature of moral thinking, and the coevolution of moral minds with cultural
practices and institutions that create diverse moral communities. I propose a fourth principle to guide future research: Morality
is about more than harm and fairness. More research is needed on the collective and religious parts of the moral domain, such
as loyalty, authority, and spiritual purity.
The purpose of conventions is to coordinate people's expectations in economic and social interactions that have multiple equilibria. Conventions often emerge endogenously from the accumulation of many precedents, a process that can be modeled as a stochastic dynamical system. The theory leads to specific predictions about the ways in which conventions form and are displaced, and identifies key properties of conventions that are most likely to withstand the test of time. The theory is illustrated by the evolution of left-wing driving conventions in Europe and patterns of sharecropping contracts in agriculture. Copyright 1996 by American Economic Association.
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