Philosophy of Law - Science topic

Sanja S. Petkovska I'll bet it was written by an artificial intelligence. Our eastern colleagues on this resource, as I noticed, are too fond of AI.

Best regards,

Marina

regarding the comment made at 45:40, if you speak of "avoiding unintented consequences", then you show that you have NO IDEA what unintended consequences are...

Investigating a method for elaborating a radical thinking of law would likely involve exploring alternative and non-mainstream approaches to legal theory and examining how these approaches might challenge and reshape traditional notions of law. Examining the consequences of the existence or absence of a research method for the elaboration and perception of political-legal problems marginalized in the Western tradition of the philosophy of law could involve analyzing the historical and cultural context of these marginalized problems and considering how different research methods and theoretical perspectives might impact our understanding and response to these issues.

This is a good starting point Eckardt. It provides brief summaries of views on climate change by global region. You can identify the ones you wish to get more detail on and then search for specific philosophical material for that region.

https://en.wikipedia.org/wiki/Climate_change_opinion_by_country

Am in line with Aparna Sathya Murthy

Pim Janse brought an important 'gap' into the discussion, if we move from the micro-level or personal action to the macro-evel of political decisions.

Perhaps this question is related to yesterday's question regarding theology and philosophy? Moral obligations are frequently, but not always, based on a religious moral code. Whereas legal obligations are based on a secular "moral code," which certainly draws from religious beliefs, but is a distillation of these, and is allowed to evolve over time.

How to determine which rules are legislatable? I think maybe a short answer is, rules that reasonable people (hopefully in Congress) can agree benefit society as whole, are legislatable. Rules that depend on nothing more than faith in the precision of an ancient religious text, not so much. So, something like, "first, show me the clear benefit, then we might legislate."

Take, for instance, tithing and holy days of obligation. The secular laws do not make such practices either necessary or "moral," because they have been replaced with secular laws, independent of any religion. Tithing was replaced with "paying your taxes," and holy days of obligation were replaced with government holidays. So, reasonable people determined that the religious practices had merit, but without having to be tied to any religious rigor. For instance, taxes vary, depending on circumstances, regardless of what ancient religious texts might have prescribed. for tithing

Virtue is concerned with choice, Aristotle says. So to understand what virtue involves, we need to understand choice. But before we can do that, we need to understand the distinction between what is voluntary and what is involuntary, because we praise and blame what is voluntary, but not what is involuntary.

Aristotle discusses these issues in the first half of Bk 3 of the Nicomachean Ethics.

There are two things that render our actions involuntary – force and ignorance.

When we act voluntarily, by contrast, we know what we are doing, and we bring it about ourselves. Contrast three cases of standing on a train and stepping on

someone’s foot:

1. The train lurches, you lose your balance, and accidentally step on someone’s foot. Stepping on their foot is involuntary, caused by force.

2. You shuffle your feet to get comfortable, and put your foot down on someone’s foot without looking. Although moving your feet is voluntary, stepping on someone’s foot is involuntary, caused by ignorance (that their foot was there).

3. You deliberately and knowingly bring your foot down on top of someone else’s.

This is voluntary.

Force We can be forced to act not only by physical forces but also by psychological pressure (such as threat of pain). Where no one could withstand such pressure, we don’t blame someone for what they do. This shows it is involuntary. However, we don’t think of the prospect of something good or pleasant as ‘forcing’ us to act.

When we act involuntarily, we do so with pain and regret.

Now, some actions that we do, we don’t want to do. These might be called voluntary and involuntary. Aristotle gives the example of sailors throwing goods overboard in a storm. They want to save the boat, but they don’t want to lose the goods. Such actions should be called voluntary. First, actions which we do to avoid a greater evil or in order to secure some good end are the right actions to choose.

Second, we praise people for such actions, and we noted above that praise and blame attaches to what is voluntary.

So, the distinction between voluntary and involuntary actions relates to the

moment of action in the particular circumstances one is in, not whether the action is generally desirable.

Who is the arbiter of whether a law is unjust or not? There are inescapable grey zones. If civil disobedience enters the culture, it will soon be hijacked by every interest group and every disgruntled citizen towards their own ends.

History is replete with ghastly laws (such as laws mandating torture), which in the end were born from and the reflection of immature, coarse societies. The proper answer is not civil disobedience, but a culture of respect for both the law and the people - something that History shows cannot be improvised overnight but is the culmination of a long maturing process.

Perhaps the only way is to quickly build both a culture and an economy which obviate the possibility of unjust laws being passed.

This happens all the time, and the problem is your definition of "correct." The most obvious example being, of course, religiously-motivated terrorism. And religiously-motivated mutilation. Or how about arranged marriages? Many people find these practices to be morally correct. That's the problem.

to C. Lewis Kausel"

God should kill all of us - anyway - sooner or later.

Cecilia, you like to wait?

No, not in the least. I think of government like a big condominium association. It's not in the least some sort of father figure. That would be pathetic. Government is people wanting to make sure that what the majority prefers is honored, even while leaving others as free as possible to do their own thing.

People are government. We don't want our neighborhood trashed, so we establish certain basic rules that the vast majority want.

This is a type 4 question. In order to underpin objective moral values and duties, god would have to exist objectively. However, gods only exist as beliefs. Hence, there is nothing objective about the moral values that are based upon the supposed wishes of a god whose existence is in principle unprovable.

To state that anything is a proven reality is incomplete: a thing can be a proven reality to a particular person, but this does not give it objective existence. Pre-Newtonian gravity was a proven reality to everyone (objects tended to move towards their natural resting place), but this did not mean that this notion of gravity had an objective existence, or even that it was proven by the fact that objects fell downwards.

And now, back to research…

Thanks so much for your answer, Albert! I've never seen prima facie duties linked with divine command theory before the contributors to this thread :) But it raises an issue. I agree with you that divine command theory doesn't work. However, could prima facie duties be conjoined with a divine nature theory of ethics? One could posit in a philosophical vein that God is the greatest conceivable being and is therefore necessarily loving, just, fair, compassionate, and so forth by nature. These facets of God's nature could shine in our intellects in the same way as light shines from the sun, causing us to recognize them as prima facie duties. What do you or others think about this speculative conjunction?

I think the best episthemology I ever knew is the Lakatos Research Program Methodology which is very simple to understand. Children and scientist as well use the same episthemology to justify and validate what they deeply believe. Small Children believe in Santa Claus and XIXth century scientist in Newton's laws of motion. They both will spent a big part of they lifes making additional hypothesis in order to maintain they beliefs - or hard core as Lakatos called them.

Yes. It's the pro-property line throughout history.

Proudhon said otherwise "la propriété c'est le vol" in a zero sum game that you can only own by depriving others from owning, sometimes causing famine and death (Irish potato famine, years of wheat speculation preceding French revolution).

There was food in Ireland, it was owned by some, and needed by others.

What is allowed to be owned?

Humans, no, or rather not any more, George Washington owned slaves... The cities of Bristol, Liverpool, Nantes made fortunes from this inhumane trade. 

Where do you put the limit?

In some countries public transport is privately owned potentially overpriced, and what could seem to be private transport by car depends heavily on public subsidy (roads and bridges). In others public transport is owned by state companies and underpriced, and roads may have tolls. 

Of course this drives towards more collective means of transport and less Carbon oxides release (electrical trains, trams, etc) or more (fossil fuel vehicles). 

Nobody commented on my line of data ownership. 

Ok I'll add habeas corpus, which is mistakenly believed as everyone owns their body, whereas the meaning was in old England that a suspect could be seized by a court depending on the king to be tried, instead of the local court where he or she had been taken to initially. This resulted statistically in fairer judgment. Law applied with more independence, corruption and arbitrary judgement was counterbalanced. The consequence was that you tended to own your body, because the king could seize it... 

One could also ask the question of education and property. Can you buy education, should you be able to, and if your parents - not you- have no money, should you be made to "pay", be punished for your parents to lack money? 

There is a worldwide divide on this: education dominantly state-run vs education dominantly private. 200km apart, the rule can be almost free universities vs 22 000 GBP or 9000 GBP/year, in Europe. 

Can you buy and own education? 

Or is it acquired by study, hard intellectual work, and the cost of the teaching is covered by government? 

Some countries with dominance of private university education import well-trained people in the medical professions, from countries where such studies are funded by the tax payer. Maybe Proudhon would say again that "la propriété c'est le vol". Hijacking rare resource from those who have funded its development. OPM, other people's money. 

Well the seemingly simple definition of ownership has made us travel through human right, microeconomics, macroeconomics.

If an attorney dozed off during a trial two issues are raised.

1. Did that period of sleep affect the totalilty of the outcome of the proceedings? 

2. Does it represent an attitude of that particular attorney to the importance of the trial and the defendant's welfare?

In case one, obviously the trial must be reheard.  In case two the case should be subject to full appeal and examination of the attorney's competance in all aspects of the preparation of the defence and scrutiny of the prosecution evidence should be meticulously investigated.  It should be noted that 'falling asleep' can occur not only during the trial itself but when the crucial prosecution evidence is being analysed.

I have seen a number of cases where crucial errors in prosecution evidence have not been picked up by the defence and have subsequently not been available to the jury.  This is in fact the most common failing of autoptic evidence.  It is all very well collecting and collating it but missing its significance through incompetence can defeat any or all forensic science.     

If an attorney fell asleep during prosecution's evidence in chief and examination in chief it must lead to a conclusion of a mistrial.  If an attorney was not listening at that stage then such negligence should result in a questionable verdict.   

In all cases of attorneys falling asleep during the trial, be they prosecution or defence they should be reprimanded in court, savaged in the press, reported to the bar and removed from the roll.   

There may be an issue here of generalists trying to write in a specialized field. The question asks about "legal terms" having a "penumbra" of meaning. But that formulation does not capture the legal discussion. It then mixes in specific SCOTUS cases.

There is a special doctrine discussed in various SCOTUS cases concerning privacy. The doctrine is not about all legal terms, or indeed any legal term in isolation. It is specifically a metaphor used in these cases to illustrate how rights explicitly identified in the text of the Constitutution imply other rights that are not explicitly identified. (It appears that prior to this current meaning dating from Griswold, penumbra may have been used in different ways by courts.)

On the other hand, there is a branch of jurisprudence/philosophy of law that discusses textual interpretation. This branch is related to general philosophy of language and literary theory on the one hand and specific legal doctrines on the other. HLA Hart and Dworkin (maybe) engaged in this kind of scholarship. But a scholar would have to make an argument from their general theories to what they would have said about the specific SCOTUS penumbra doctrine.

Apparently Hart talked about "penumbra" cases of the meanings of particular terms as opposed to core meanings. But that theoretical concept is a different concept from the SCOTUS concept that a whole bunch of text about different rights implies non-stated rights. The whole mass of text is not a single term and the new penumbral right is not contrasted with old "core" rights as being more peripheral.

Similarly, Dworkin's theory that (roughly) principles underlie and justify all of our law together and we can infer new decisions from these principles is a different way of justifying a right to privacy than the SCOTUS penumbra metaphor (although you could argue whether it is a more precise way of stating the metaphor or just different).

In my view - HLA Hart's legal positivism

I am sending a link:

To be authority in a court of law, any "global consensus" must be legislated. Judges are not permitted (theoretically) to read scientific journals - or texts of stone-age religion - and therefore rule contrary to law. Fortunately -- at least in the U.S. where judges are more likely to be, and too often are, swayed by stone-age religion. Science, of course, can be admitted as evidence of fact, but not of law.

Thanks Jose, I assumed your first language was not English. I filled in the concepts the best I could from inference. But, I still have trouble understanding your question. How about one question at a time!  Sounds like an important topic. Is the main issue about Informed Consent with sexually abused/abusers of the population for your study? 

In the US if someone is a victim of sexual abuse and you are doing a study on them, yes you have to get Informed Consent, same if it were the abuser you were studying? Is that true in Brazil or Mexico? 

The question relies on the deep basis of the distinction, not on the specific legal situation of one and other set of damages. In that field, the difference can be exposed as follows: the actual damage is the monetary valuation of a disadvantage derived from a fact considered as true, and the damages for expected benefits are the monetary valuation of a disadvantage and a fact considered as probable.Shortly: there is an epistemological difference. Obviously, the determination of an event as "true" or "prbable" do not keep on, within the legal practice, the rules of the scientific knowledge which are familiar to standard epistemology, since the legal practice operates within a institutional framework. But, philosophically speaking, that is the essential difference between one and other set of damages. 

Autority Governmat of legislation bazed Constitution of Timor Leste

Abstract

I believe the transcendental phenomenology of Husserl advocated through his late work in the Vienna Lectures and "The Crisis.." is together with Hegel's "Phenomenology of Spirit" about as far as we have gotten in the development of the  great task, unfortunately. I also think a more fundamental phenomenology of cognition and language would necessarily precede any phenomenology of law.

From my point of view, It is very difficult to study the sources of law without giving any relevance to the human culture and the human history. The law is usually linked to the problems of the society of any moment.

Hi Gema

The moral disagreement is a matter of choices.

Positivism lacks objective guidelines to choose.

Moral realism presupposes good. There is also no alternative.

Constructivism variant of positivism, has no objective measure.

The semantic convention only has answers to the statements. Not for values.

Hermeneutics has no direct answer for values. His performance sequence leads to a maze of choices.

Hedonism offers a choice: choose the pleasant. But does not define what is pleasurable. And the different variants of hedonism have different answers.

Plato has an answer. should always choose the moral good.

Aristotle is more prudent. Intends to continue the prudent man.

But in all cases one is faced with choices.

For Christians the pattern is given by the 10 commandments.

Other religions have similar variants.

Atheists or agnostics must answer to the dilemma of Dostoevsky (The Brothers Karamazov).

In all cases

the epistemological paradigm

not serve to resolve moral disagreement

Joaquín

Great question. Maybe we can developed few solutions. Educate judges in behavioural science and psychology; provide them with handbooks about bounded rationality, will, self-interest, depletion of ego etc. Maybe something like that will help judges to use new insights from psychology during their judicial activity? 

I fear also a situation when experts will be judges of facts. It means when they will de facto decide whether someone is guilty; and judges without knowledge will have no tools to asses expert's testimony (whether it is pure science or maybe expert's interpretation or idee fixe).

Dear Marcin,

thanks for a lively and very interesting discussion.

The use of the term "justify" brings focus to a crucial point. I do not think that I am justified (or not justified) in calling the trunk ugly. In contemplating the "external" I believe we must resist the danger of equating ascription conditions with metaphysics. While I reject a purely internalist perspective on the concept of ugliness, I yet do not think that such an attribute or property is real in the sense of a naturalist ontology (that is, that ugliness is "out there", independent of a perceiver). For there to be a justification, there would have to exist a causal chain, or at least a chain of reasons, which runs from the (external) object in question to my (internal) experience. But as I remarked in footnote [1] in my first reply, no such chain is available to us. Thus, an ontological externalism does not seem feasible to me. (This does not mean that there is no external world, only that the infamous notion of a "thing-in-itself" is unintelligible.)

If classical externalist ontologies and internal/external dichotomies are defective, where does that leave us? What about an epistemological externalism? You write:

As you point out, ascription conditions can only work within a normative context. Without such a context we could not understand each other since language would have nothing to latch on to. However, there is a difference between general and legal meaning, because legal meaning is, similar to mathematics, a matter of creating a technical system of concepts on top of our ordinary language. In other words, the law can be learned by understanding definitions and the relations between them (I know I'm greatly oversimplifying, but it is only this aspect which I need here). This stands in contrast to ordinary language which is acquired in practice as we grow up and learn to cope with the world. Definitions are of no use (yet). Nonetheless, when we learn our ordinary practices together with our ordinary language(s), a normative context is created within which we can communicate. A silent and unreflected background comes into existence, against which we make our (ordinary) judgements. Later we augment our abilities by introducing the technical languages of science, mathematics, law, and other categories. We do well to remember that any understanding of technical language depends on ordinary language and that this bond can never be relinquished (a botanist can never forget what a tree is, even though "tree" is not a term in botany and you need to know what a river, a valley and a mountain is before you can engage in the science of geography).

In view of the above, one may say that reference works differently in ordinary and in legal language. It is a difference in kind, not in degree. In both cases we evaluate against a normative background, but in the legal context the background is rationally created using definitions, while the background of ordinary language is human life itself, with no systematically conceived layers or theoretical frameworks inbetween speech and action. Intension, as you point out, indeed occurs in both cases and cannot be used to differentate between the two.

To summarize, I think that the externalism you have in mind does not work as a general theory of meaning, but may yet be successful within the confines of the law. The reasons for this would be:

We can "absorb" the subjective into the objective within legal systems, since these must be designed to not have to essentially rely on the subjective: all reference in legal contexts must be of a publicly accessible type, as opposed to internalised experience. Markus Frischhut gives an example in his reply ("Recital 7 ... fundamental ethical choices ..."). His emphasis of "fruitful" takes us away from essences of meaning (or the appearance of them) to applications and definitions of terms relative to what our goals are. Thus the focus shifts from searching for meaning ("behind" the words we use) to creating it through responsible action. An externalist analysis would then amount to examining how we act (thereby creating meaning) in our applications of "equality", "justice", etc., where "application" refers to human action, as opposed to internal, formal, linguistic relations.

I certainly agree with respect to universals and the analysis of meaning, but not so much about the notion of "ugly" or "red" summarizing experiences. The meaning of a word lies in its use. I cannot use "red" to explain or justify my experiences. "Red" is (partly) constitutive of my ability to express my experience of colour perception. Our use of "red", "ugly", etc. creates a logical (linguistic) space within which we can meet to talk about what we perceive. We agree or disagree not within language but in way of life (words construed as "pointers to reality" cannot create agreement or disagreement, we also have to live a little to achieve that). Reference and meaning do not occur with respect to the internal rules of a language, but by applying language, to use a Wittgenstein dictum, "within the stream of life".

Kind regards,

Chris

Dear Artur,

Great question. Law is not a science. The process of lawmaking, interpretation of legal rules, and so on, has nothing in common with science. The first one deals with normative sphere ('obligation') and the second one with descriptive sphere ('truth"). Law in this sense is a social practice.

However, I would like to stress one important point when it comes to law/science division. Law needs foundations which are descriptive. Lawmaker needs to know i.e.: how do people behave?, are they rational or irrational?, how does law make them better (or worse)?; how do people make decision about following the rules?

It means that lawmaker needs science to make better, more efficient law (Petrażycki, Podgórecki, Luhmann with his 'law is normatively closed, but cognitively open', behavioral law and economics, neurolaw).