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1.
Mark Greenberg 《Law and Philosophy》2011,30(4):419-451
In this paper, I challenge an influential understanding of naturalization according to which work on traditional problems
in the philosophy of law should be replaced with sociological or psychological explanations of how judges decide cases. W.V.
Quine famously proposed the ‘naturalization of epistemology’. In a prominent series of papers and a book, Brian Leiter has
raised the intriguing idea that Quine’s naturalization of epistemology is a useful model for philosophy of law. I examine
Quine’s naturalization of epistemology and Leiter’s suggested parallel and argue that the parallel does not hold up. Even
granting Leiter’s substantive assumption that the law is indeterminate, there is no philosophical confusion or overreaching
in the legal case that is parallel to the philosophical overreaching of Cartesian foundationalism in epistemology. Moreover,
if we take seriously Leiter’s analogy, the upshot is almost the opposite of what Leiter suggests. The closest parallel in
the legal case to Quine’s position would be the rejection of the philosophical positions that lead to the indeterminacy thesis. 相似文献
2.
Mark Greenberg 《Law and Philosophy》2011,30(4):453-476
In a circulated but heretofore unpublished 2001 paper, I argued that Leiter’s analogy to Quine’s “naturalization of epistemology”
does not do the philosophical work Leiter suggests. I revisit the issues in this new essay. I first show that Leiter’s replies
to my arguments fail. Most significantly, if – contrary to the genuinely naturalistic reading of Quine that I advanced – Quine
is understood as claiming that we have no vantage point from which to address whether belief in scientific theories is ever
justified, it would not help Leiter’s parallel. Given Leiter’s way of drawing the parallel, the analogous position in the
legal case would be not the Legal Realists’ indeterminacy thesis, but the very different position that we have no vantage
point from which to address whether legal decisions can ever be justified. I then go on to address the more important question
of whether the indeterminacy thesis, if true, would support any replacement of important legal philosophical questions with
empirical ones. Although Ronald Dworkin has argued against the indeterminacy thesis, if he were wrong on this issue, it would
not in any way suggest that the questions with which Dworkin is centrally concerned cannot fruitfully be addressed. The indeterminacy
thesis is a bone of contention in an ordinary philosophical debate between its proponents and Dworkin. Of course, if the determinacy
thesis were true, no one should try to show that it is false, but this triviality lends no support to the kind of replacement
proposal that Leiter proposes. I conclude with some general reflections on naturalism and philosophical methodology. 相似文献
3.
Jacques de Ville 《Law and Critique》2007,18(1):29-54
Sir Edward Coke is known for having played a central role in establishing the power of the common law courts to exercise a
supervisory jurisdiction over the executive/administration. Coke is usually praised in the literature for his boldness in
doing this, whilst he is at the same time censured for having dared to suggest that this jurisdiction should be a very wide
one. This essay questions the inheritance of judicial supervision and enquires whether there may be a secret to uncover in
Coke’s texts. Referring to Coke’s Institutes, it is suggested that the wide jurisdiction of the common law courts that Coke
advanced, is linked to and should be understood in light of Coke’s pronouncements in the epigrams on law and justice. Judicial
supervision, according to this reading of Coke, involves not only a necessarily limited jurisdiction in accordance with law,
but also the desire for an unlimited jurisdiction, which corresponds with Derrida’s analysis of justice and law. This reading
of Coke, it is suggested, calls on us to view judicial supervision as revolutionary in nature, which requires of the courts
to rethink fundamentally the way in which they exercise their supervisory function.
相似文献
Jacques de VilleEmail: |
4.
Daniel McLoughlin 《Law and Critique》2009,20(3):245-257
In Homo Sacer, Giorgio Agamben makes the claim that Kant’s moral philosophy is prophetic of legal nihilism and modern totalitarianism.
In doing so, he draws an implicit parallel between Kantian ethics of respect and autonomy, and the authoritarian constitutional
theory of Carl Schmitt. This paper elucidates and evaluates this claim through an analysis of Agamben’s assertion that the
legal condition of modernity is a nihilistic law that is ‘in force without significance’. I argue that the theoretical continuity
between totalitarianism and the Moral Law is the problem of the undecidable, which arises when the empty ground of normative
judgment comes to light. 相似文献
5.
J. D. Shepherd 《Criminal Law and Philosophy》2012,6(1):31-45
In this essay, I apply international human rights theory to the domestic discussion of criminalization. The essay takes as
its starting point the “right not to be punished” that Douglas Husak posited in his recent book Overcriminalization. By reviewing international human rights norms, I take up Husak’s challenge to imbue this right with further normative content.
This process reveals additional relationships between the criminal law and human rights theory, and I discuss one analogy:
the derogation by states of an individual’s human rights under specified conditions has certain similarities to the punishment
by states of an individual who holds a right not to be punished. Along the way, I highlight the normative implications of
defining a human right not to be punished under both generalist and specificationist perspectives on moral rights. Noting
the similarities as well as the differences in the concepts of punishment and derogation, this essay aims to contribute to
the exchange between theories of human rights and the criminal law. 相似文献
6.
Amy Swiffen 《Law and Critique》2010,21(1):39-51
The paper explores the role of Jacques Lacan’s Ethics of Psychoanalysis in debates in law and legal philosophy. It proceeds by considering a debate between Slavoj Žižek and Judith Butler over Lacan’s
concept of the real, which forms part of a larger discussion over the future of democracy and the rule of law (Butler et al. 2000). Through reference
to discussions of the relationship between law and ethics based on the Antigone tragedy, I argue that the difference between Žižek and Butler’s positions should not be understood in terms of the correctness of
their reading of Lacan, but in terms of the political commitments that inform their respective interpretations. I explain
the implications of this debate over one of Lacan’s most enigmatic concepts, thereby showing how Lacan’s theory can be used
to rethink the politics of law in light of the increased emphasis on ethics in contemporary legal debates. 相似文献
7.
Arne de Boever 《Law and Critique》2009,20(3):259-270
This essay reconsiders Marx’ prehistory of capital through the lens of the work of Giorgio Agamben, who in the wake of Foucault
has proposed a bio-political theory of sovereignty that breaks down the analytical separation between sovereignty and governmentality
that Foucault in his work tries to maintain. Although Agamben mentions Marx only once in his study of sovereign power, I argue
that his study nevertheless contributes to our understanding of the capitalist relation as not only a governmental but also
a sovereign power relation. In the first part of this essay, I show through a philological commentary on Marx’ use of the
adjective ‘vogelfrei’—translated as free, rightless, without protection, outlawed—to characterise the proletariat, that the Marxian proletariat
is a figure of what Agamben in his study of sovereign power calls bare life. In the second part of the essay, I show that
this sovereign dimension of the capitalist relation is also substantiated by Marx’ analysis of the logic of the capitalist
relation as that of the exception. After Carl Schmitt, who wrote that ‘sovereign is who decides on the state of exception’,
Agamben has argued that the logic of the exception is the logic of sovereign power. Reconsidered through the lens of Agamben’s
argument, Marx’ account of the prehistory of capital reveals that there is a sovereign logic of the exception at work in the
capitalist relation. In the final part of the essay, I start from Agamben’s single reference to Marx in his study of sovereign
power to discuss the importance of my conclusions for Agamben’s political message. 相似文献
8.
Jacques de Ville 《International Journal for the Semiotics of Law》2010,23(3):239-242
In this essay, one of Derrida’s early texts, Plato’s pharmacy, is analysed in detail, more specifically in relation to its reflections on writing and its relation to law. This analysis
takes place with reference to a number of Derrida’s other texts, in particular those on Freud. It is especially Freud’s texts
on dream interpretation and on the dream-work which are of assistance in understanding the background to Derrida’s analysis
of writing in Plato’s pharmacy. The essay shows the close relation between Derrida’s analysis of Plato’s texts and Freud’s study of the dream-work. The
forces at work in dreams, it appears, are at play in all texts, which in turn explains Derrida’s contentions in relation to
the pharmakon as providing the condition of possibility of Plato’s texts. The essay furthermore points to the continuity between this ‘early’
text of Derrida and his ‘later’, seemingly more politico-legal texts of the 1990s. A close reading of Plato’s pharmacy, with its investigation via ‘writing’ of the foundations of metaphysics, and thus also of the Western concept of law, is
obligatory should one wish to comprehend how Derrida attempts to exceed the restricted economy of metaphysics through his
analysis of concepts such as justice and hospitality. 相似文献
9.
Molly Dragiewicz 《Crime, Law and Social Change》2010,54(2):197-212
Despite earlier critiques of left realists’ failure to adequately address feminist concerns, recent left realist theorizing
and empirical research have made valuable contributions to the understanding of woman abuse and other forms of gendered violence.
Left realism has further potential to contribute to the criminological understanding of woman abuse and its contributing socioeconomic
and cultural contexts. This article describes left realists’ early efforts to include gender in analyses of crime. It then
summarizes feminist critiques of left realism and reviews the work that has responded to them. Drawing upon two prominent
strands of feminist left realist theorizing about violence and gender, the paper proposes a preliminary left realist theory
of antifeminist fathers’ rights group activism. It then outlines a provisional research agenda on antifeminist fathers’ rights
groups, and proposes short and long term policies and practices to enhance the safety of abused mothers and their children
following divorce or separation. 相似文献
10.
Jessica Whyte 《Law and Critique》2009,20(3):309-324
In Homo Sacer, Giorgio Agamben suggests that Herman’s Melville’s ‘Bartleby the Scrivener’ offers the ‘strongest objection against the principle
of sovereignty’. Bartleby, a legal scribe who does not write, is best known for the formula with which he responds to all
his employer’s requests, ‘I would prefer not to.’ This paper examines this formula, asking what it would mean to ‘prefer not
to’ when the law is in question. By reading Melville’s story alongside Aristotle’s theory of potentiality and Walter Benjamin’s
theses on history, it suggests that Bartleby’s interest, for Agamben, lies in his challenge to dominant conceptions of the
relation between potentiality and actuality, which, he believes, are rendered indistinct in sovereignty. By reflecting critically
on Agamben’s depiction of Bartleby as a ‘new Messiah’, this paper examines Agamben’s understanding of what it would mean to
fulfil the law, and what form of political task this would entail. 相似文献
11.
Genlin Liang 《Frontiers of Law in China》2007,2(3):418-445
The judicial interpretation of criminal law should be an application interpretation to individual cases that is guided by
judges and participated by the prosecutor and the accused, for which the judicial judgment should be combined with the application
of criminal law of specific cases, and the criminal precedents should be as a carrier. The Supreme People’s Court should change
from the previous practices of issuing normative and abstract interpretation to the dual approaches of the interpretation
of criminal law application through direct creation and indirect acknowledgement.
Liang Genlin, Professor and Vice Dean of Law School of Peking University and as a visiting professor of University of Tuebingen
(2001–2002). His main research focuses on criminal law and criminal policy, and his important publications include “On the
Structure of Punishment”, “Liang Genlin’s Review on Criminal Policy, Volume I, Criminal Policy: Standpoint and Category”,
“Liang Genlin’s Review on Criminal Policy, Volume II, the Arm of the Law: Expand and Limit”, “Liang Genlin’s Review on Criminal
Policy, Volume III, Criminal Sanction: Manner and Choice”. Besides, he has also published over 40 discourses on criminal law
and criminal policy since 1996. 相似文献
12.
Narnia Bohler-Muller 《Law and Critique》2007,18(2):253-274
This contribution offers a careful but critical reading of Johan van der Walt’s theory of post-apartheid law as sacrifice and social struggle. By placing a theoretical emphasis on the inevitability of violence and the impossibility
of love, Van der Walt’s thesis risks denying the possibility of thinking the world in a different, way. In order to reconceive
the terms of community and horizontality in post-apartheid South Africa, there is a need to move beyond thinking the world as constructed according to tension, conflict and self-preservation
at the expense of understanding and compassion. In developing a critique of law as sacrifice, I utilise Panu Minkkinen’s call
for justice as the beyond of law that goes beyond the mere battle for recognition. I also address his view that the unappeasable
desire of metaphysics entails the recognition that there is hope for the future and the recovering of transcendence as otherness.
Secondly, I use Louis Wolcher’s work on Zen Buddhism to argue that any obsession with conceptual purity, as is glimpsed in
Van der Walt’s work, ignores the impossibility of setting down the immutable and universal truth for all time. In other words, however attractive a theory of law as sacrifice may be, it
is only one perspective amongst many others. Lastly, I contrast Van der Walt’s work with that of Luce Irigaray, and in particular
her formulation of ‘horizontal transcendence’ that makes possible relations ‘between two’.
相似文献
Narnia Bohler-MullerEmail: |
13.
Barbara Baum Levenbook 《Law and Philosophy》1984,3(1):1-23
The purpose of this essay is to defend a claim that a certain consideration, which I call unworkability, is universally and necessarily relevant to legal reasoning. By that I mean that it is a consideration that must carry legal weight in the justification of some judicial decisions in every legal system in which (1) all disputed matters of law can be adjudicated, and (2) all judicial decisions are to be legally justified. Unworkability's necessary relevance has important implications for a theory of relevance presented by Rolf Sartorius. On this theory, nearly all considerations that are relevant to a judicial decision are supplied by legal principles embedded in the legal rules and decisions, or by extralegal principles dependent, in some way, on the legal principles. (The exceptions to the embedding thesis that Sartorius would, no doubt, recognize are elaborated in the text but can be set aside here.) But there are possible legal systems which do not contain an embedded legal principle concerning unworkability; and nonetheless, unworkability is relevant to judicial reasoning in those systems. Hence, a theory of relevance that relies on principles embedded in the content of rules is too simplistic. Some substantive considerations are relevant for other reasons. 相似文献
14.
Julie Dickson 《Law and Philosophy》2011,30(4):477-497
In a series of powerful and challenging articles emerging since the mid-1990s, Brian Leiter has argued that certain theoretical
strains in contemporary legal philosophy are ‘epistemologically bankrupt’, in virtue of their reliance on misguided argumentative
devices: analysing concepts, such as the concepts of law and of authority; and doing so by appealing to intuitions regarding
the correct way to understand the concepts in question. In response to this state of affairs, Leiter advocates that jurisprudence
ought to attempt to catch-up with ‘naturalistic’ developments which have influenced the direction of other branches of philosophy
– such as epistemology, philosophy of mind, and moral philosophy – in the last few decades. This article offers a critical
analysis of some of Leiter’s proposals for what Jurisprudence should become, in light of his views on the relevance of naturalism
for this discipline. 相似文献
16.
17.
Malcolm Thorburn 《Criminal Law and Philosophy》2011,5(3):259-276
This paper, originally written for a conference on criminal law in times of emergency, considers the implications of the ‘German
Airliner case’ for criminal law theory. In that case, the German constitutional court struck down as unconstitutional a law
empowering state officials to order the shooting down of a hijacked plane on the grounds that the state could not order the
killing of innocent civilians. Some have argued that despite this ruling, individual officials should still be entitled to
claim a criminal law justification defence. I argue that the nature of justification defences necessarily ties them to the
powers of the state to engage in such activity. I also argue that both the constitutional decision and its criminal law implications
are salutary. 相似文献
18.
Markus Gunneflo 《Law and Critique》2012,23(1):67-82
The targeted killing judgment of the Israeli Supreme Court has, since it was handed down in December 2006, received a significant
amount of attention: praise as well as criticism. Offering neither praise nor criticism, the present article is instead an
attempt at a ‘critique’ of the judgment drawing on the German-Jewish philosopher Walter Benjamin’s famous essay from 1921,
‘Critique of Violence’. The article focuses on a key aspect of Benjamin’s critique: the distinction between the two modalities
of ‘legal violence’—lawmaking or foundational violence and law-preserving or administrative violence. Analysing the fact that
the Court exercises jurisdiction over these killings in the first place, the decision on the applicable law as well as the
interpretation of that law, the article finds that the targeted killing judgment collapses this distinction in a different
way from that foreseen by Benjamin. Hence, the article argues, the targeted killing judgment is best understood as a form
of administrative foundational violence. In conclusion Judith Butler’s reading of Benjamin’s notion of ‘divine violence’ is
considered, particularly his use of the commandment, ‘thou shalt not kill’, as a non-violent violence that must be waged against
the kind of legal violence of which the targeted killing judgment is exemplary. 相似文献
19.
Iain Brassington 《Law and Philosophy》2008,27(5):415-444
Motivated by Lord Joffe’s Assisted Dying for the Terminally Ill Bill, but with one eye on any possible future legislation,
I consider the justifications that might be offered for limiting assistance in dying to those who are suffering unbearably
from terminal illness. I argue that the terminal illness criterion and the unbearable suffering criterion are not morally
defensible separately: that a person need be neither terminally ill (or ill at all), nor suffering unbearably (or suffering
at all) to have a right to assisted dying. Indeed: I shall suggest that the unbearable suffering criterion undermines the
Bill (or any proposal like it) wholesale. On the other hand, the criteria taken together are defensible, and this defence
would be built on a concern for the protection of the vulnerable. However, I also claim that this implies that the law might
justifiably—and maybe even properly—aim to prevent a person from gaining access to that to which they have a serious moral
right. This seems paradoxical, and, towards the end of the paper, I seek to tease apart the paradox. 相似文献
20.
S. Stewart Braun 《Law and Philosophy》2010,29(6):695-715
Entitlement theorists claim that bequest is a moral right. The aim of this essay is to determine whether entitlement theorists
can, on their own grounds, consistently defend that claim. I argue that even if there is a moral right to self-appropriated
property and to engage in inter vivos transfers, it is a mistake to contend that there exists an equivalent moral right to make a bequest. Taxing or regulating
bequest does not violate an individual’s moral rights because, regardless of whether bequest safeguards certain interests,
those interests are not the interests of a living, morally inviolable being. Instead, they are the interests of a deceased
entity that has lost the ability to track what it values and pursue projects in accord with those values – a quality that
by entitlement theorists’ own arguments renders persons morally significant and deserving of rights in the first place. 相似文献