共查询到20条相似文献,搜索用时 46 毫秒
1.
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In a circulated but heretofore unpublished 2001 paper, I argued that Leiter’s analogy to Quine’s “naturalization of epistemology”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
2.
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
3.
Michael Steven Green 《Law and Philosophy》2011,30(4):381-418
In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past.
The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed.
The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist
theory. Leiter’s reading is vulnerable, because he fails to discuss in detail those passages from the realists that inspired
past interpretations. My goal is to see how Leiter’s reading fares when these passages are considered. I argue that Leiter
is right that the realists’ indeterminacy thesis has only a local scope. Those passages that appear to claim that the law
is globally indeterminate actually address three other topics: judicial supremacy, judges’ roles as finders of fact, and the
moral obligation to adjudicate as the law commands. With respect to the prediction theory, however, I conclude that Leiter’s
position cannot be defended. Indeed the realists offered two ‘prediction’ theories of law. According to the first, which is
best described as a decision theory, the law concerning an event is whatever concrete judgment a court will issue when the
event is litigated. According to the second, the law is reduced, not to concrete judgments, but to regularities of judicial
(and other official) behavior in a jurisdiction. I end this essay with the suggestion that the realists’ advocacy of the second
prediction theory indirectly vindicates Leiter’s reading of the realists as prescient jurisprudential naturalists. 相似文献
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.
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
6.
Elina Staikou 《International Journal for the Semiotics of Law》2010,23(3):283-298
The article attempts to think friendship in its relation to law and justice and provides some arguments for the importance
of this concept in Derrida’s ethical, legal and political philosophy. It draws on early texts such as Of grammatology and reads them in conjunction with later texts such as The animal that therefore I am. The relation of friendship to law and justice is explored by means of Derrida’s notion of “degenerescence” understood as
the necessity or law of indeterminateness that cuts across, both limiting and de-limiting, all laws, types and generic partitions,
for instance, juridical (natural and positive right), humanistic (human and animal), anthropological (sexual difference),
philosophical (physis and nomos). Drawing on Derrida’s readings of “sexual difference” in Heidegger and the latter’s evocation of “the voice of the friend”
in Being and time, the article addresses the theme of Geschlecht and articulates the exigency to think sexual difference beyond duality together with the exigency to rethink law and right
otherwise than on the ground of nativity and “natural fact” and in terms of what Derrida calls “a friendship prior to friendships”
at the origin of all law and socius. 相似文献
7.
Ekow N. Yankah 《Criminal Law and Philosophy》2012,6(2):255-272
There is no question Arthur Ripstein’s Force and Freedom is an engaging and powerful book which will inform legal philosophy,
particularly Kantian theories, for years to come. The text explores with care Kant’s legal and political philosophy, distinguishing
it from his better known moral theory. Nor is Ripstein’s book simply a recounting of Kant’s legal and political theory. Ripstein
develops Kant’s views in his own unique vision illustrating fresh ways of viewing the entire Kantian project. But the same
strength and coherence which ties the book to Kant’s important values of independence blinds the work to our shared moral
ties grounded in other political values. Ripstein’s thoughts on punishment are novel in that he embeds criminal law, both
in its retributivist and consequentialist facets, into Kant’s overarching political philosophy to show how criminal law can
be seen as one aspect of the supremacy of public law. But a criminal law solely focused on the preservation of freedom takes
little notice of the ways criminal law need expand its view to account for how a polity can restore the victim of a crime
back to civic equality, reincorporate offenders after they have been punished and cannot leave past offenders isolated and
likely to reoffend, resulting in the rotating door prison system and communities of innocents who remain preyed upon by career
criminals. Lastly, a political theory that does not prize our civic bonds will ignore the startling balkanization of our criminal
punishment practices, where policing, arresting and imprisonment become tools of racial and social oppression. In illustrating
the benefits in viewing criminal law as a coherent part of Kant’s political theory of freedom, Ripstein also highlights what
is absent. It then becomes clear that though Kant presents one important facet of punishment, only a republican political
theory can meet the most pressing moral demands of punishment by reminding us that criminal law must be used to preserve and
strengthen civic society. 相似文献
8.
Michelle Madden Dempsey 《Criminal Law and Philosophy》2012,6(1):65-80
This article provides a comparative analysis of various methodologies employed in building arguments regarding prostitution
law and policy, and reflects on the proper aims of legal philosophy more generally. Taking Peter de Marneffe’s Liberalism
and Prostitution (OUP 2010) as a launching point for these reflections, the article offers a mostly favourable review of the book as a whole, and defends
the philosophical method as one (amongst other) valuable ways to argue about prostitution. 相似文献
9.
Kimberley Brownlee 《Law and Philosophy》2008,27(6):583-597
An enduring question in political and legal philosophy concerns whether we have a general moral obligation to follow the law.
In this paper, I argue that Philip Soper’s intuitively appealing effort to give new life to the idea of legal obligation by
characterising it as a duty of deference is ultimately unpersuasive. Soper claims that people who understand what a legal
system is and admit that it is valuable must recognise that they would be morally inconsistent to deny that they owe deference
to state norms. However, if the duty of deference stemmed from people’s decision to regard the law as valuable as Soper argues,
then people who do not admit the value of the state would have no duty as such to defer to its norms. And, more importantly,
people who admit the value of the state would have a duty not to defer to particular norms, namely those norms which violate the values that ground their preference for a state. This
critique of Soper operates within his parameters by accepting his claim that moral consistency generates reasons to act. Even
on those terms, Soper’s defence of legal obligation as a duty of deference is unpersuasive.
I wish to thank John Tasioulas, Joseph Raz, Bill Edmundson, Adam Cureton, the editors and referees of Law and Philosophy, and the participants of the Society for Applied Philosophy 25th anniversary conference, July 2005, St Anne’s College, Oxford. 相似文献
10.
Deborah Cao 《International Journal for the Semiotics of Law》2011,24(3):351-367
There is yet to be any animal welfare or protection law for domestic animals in China, one of the few countries in the world
today that do not have such laws. However, in Chinese imperial law, there were legal provisions adopted more than a 1,000 years
ago for the care and treatment of domestic working animals. Furthermore, in traditional Chinese philosophy, animals were regarded
as constituent part of the organic whole of the cosmos by ancient Chinese philosophers who saw no strict delineation between
humans and non-human animals. Notwithstanding, the attitude and practice towards animals in ancient Chinese life was also
ambivalent and was predicated upon the practical utility of animals for the service of humans and society. Such practice can
be seen through the legal provisions in imperial China. This paper first discusses animal’s place in traditional Chinese philosophy
and then in Chinese imperial law. It raises the issue of the gap discernable from the philosophical thought on animals and
practice regarding animals in everyday life in China. The paper argues that given the gap in perception and attitude regarding
animals, law can play an important role that moral teaching has not been able to achieve. 相似文献
11.
Mátyás Bódig 《Acta Juridica Hungarica》2001,42(1-2):1-23
The essay concerns the way jurisprudence adapts to the challanges set by contemporary philosophy concentarting upon the case of Hart"s legal theory. Hart produced one paradigm of linking philosphical considerations to jurisprudential analyses. He seemed to believe that the investigation of legal phenomena must itself raise and answer the underlying philosophical questions (only occasionally relying on philosophical sources). Although Hart was well aware of the rising new philosophy of his time, he sought to elaborate an autonomus conceptual framework for philosophical jurisprudence. The essay often takes Wittgenstein as an example for elucaidating Hart"s relation to philosophy (although critizing those who believe that Hart"s is a key figure in the jurisprudential reception of Wittgenstein"s later philosophy). The essayjustifies Hart"s claim to gain theoretical autonomy but points to three mistakes in that prespect. (1) He sometimes misconcieved his philodophical sources owing to the fact that he refrained from analyzing them. (2) Hart justified some of his crucial claims by a combination of arguments that is not entirely consistent. (3) His standpoint often raised philosophical issues but sometimes failed to make an identifiable point upon them. The essay concludes that Hart was right in thinking that the time had come to reconsider the conditions of making theories about law but he couild not justify his assumption that the reconsideration would lead to certain kind of comprehensive theory of law. 相似文献
13.
Nathan Moore 《International Journal for the Semiotics of Law》2007,20(1):33-54
This paper is broadly concerned with Deleuze’s distinction between ‚la loi et les lois’ on the one hand, and jurisprudence
on the other. Jurisprudence is the␣creative action of legal practice, the process by which it is forced to think constructively
and anew. In such circumstances legal thought is akin to Deleuze’s concept of the event. I explore the distinction between
law and jurisprudence by way of Deleuze’s comments on control societies, arguing that, under control, law ceases to be a juridical
hierarchy conforming to disciplinary modes to become a regulatory practice of interminable modulation. In order to begin to
explore the relations and connections between law/jurisprudence and control, the paper will look to the semiotics of C.S.
Peirce (who influenced Deleuze’s work on cinema). In particular it will argue that control operates predominantly through
icons. As a consequence I argue that the proper ground of the sign, the event, is co-opted and, following from this, that
control functions through the confusing of sense and meaning.
Thanks to Anne Bottomley, Ronnie Lippens and Jamie Murray. 相似文献
14.
Thomas Søbirk Petersen 《Criminal Law and Philosophy》2010,4(2):215-232
The aim of this paper is to critically discuss the plausibility of legal moralism with an emphasis on some central and recent
versions. First, this paper puts forward and defends the thesis that recently developed varieties of legal moralism promoted
by Robert P. George, John Kekes and Michael Moore are more plausible than Lord Devlin’s traditional account. The main argument
for this thesis is that in its more modern versions legal moralism is immune to some of the forceful challenges made to Devlin
by Hart, Dworkin and Feinberg among others. Second, however, the paper challenges the new generation of legal moralists and
suggests some areas for further development. Although Devlin’s position has been scrutinized thoroughly in the literature
on the philosophy of law, there has, to my knowledge, been no comparable, systematic critique of these different proponents
of legal moralism. 相似文献
15.
Paula Gaido 《Law and Philosophy》2011,30(6):685-698
This article seeks to clarify Joseph Raz’s contention that the task of the legal theorist is to explain the nature of law,
rather than the concept of law. For Raz, to explain the nature of law is to explain the necessary properties that constitute
it, those which if absent law would cease to be what it is. The first issue arises regarding his ambiguous usage of the expression
“necessary property”. Concurrently Raz affirms that the legal theorist has the following tasks: (a) explain the essential
properties of that which the concept of law refers to, which exists independently from any concept of law; (b) explain the
essential properties of law given our concept of law. After trying to dissolve the ambiguity of Raz’s argument, I conclude
that based on his methodological commitments the only possible task for a legal philosopher would be conceptual analysis,
understood as the task of explaining our concept of law. 相似文献
16.
约瑟夫.拉兹是法律实证主义后期的重要代表人物。在研究法律时,他除了继续保持实证主义传统、使用法律实证主义惯用的分析方法以外,还试图用新的方法来替代早期的分析法学家们广为使用的方法,并使用新的哲学理论来改造法律实证主义。他的法哲学思想表现出的一个重要趣向就是:将法律实证主义导向实践哲学。这一趣向贯穿于拉兹法哲学思想的方方面面,是理解拉兹法哲学思想的关键。 相似文献
17.
Didi Herman 《Critical Criminology》1991,2(2):57-76
Historically, legal discourse affirms the apparent naturalness of the heterosexual family, contributing to the invisibility
of social processes which privilege heterosexuality. In this paper, Herman examines ways in which this naturalization and
invisibility are the result of the delegitimation of knowledges which challenge the ‘Truth’ of law. Exploring the role of
the sociologist as expert witness in the recent Mossop decisions, but also aspects of other recent lesbian and gay litigation,
Herman raises a number of questions about the relationship between meaning and truth in law, and the constitution of sexual
identity through the legal process. In so doing, she raises questions central to feminist theory. 相似文献
18.
Brian Z. Tamanaha 《Ratio juris》2017,30(1):3-24
Prominent analytical jurisprudents assert that a theory of law consists of necessary, universal truths about the nature of law. This often‐repeated claim, which has not been systematically established, is critically examined in this essay. I begin with the distinction between natural kinds and social artifacts, drawing on the philosophy of society to show that necessity claims about law require a fundamental reworking of basic understandings of ontology and epistemology, which legal philosophers have not undertaken. I show law is a poor fit for a priori and a posteriori knowledge. I distinguish between universal application and universal truth, showing the former is sound while the latter is not. I expose the implications that follow from the initial selection of the central case of law, demonstrating that this choice must be justified, and I reveal two ways analytical jurisprudents shield their theories of law from refutation. This analysis raises significant doubts about the claim by analytical jurisprudents that they are identifying necessary, universal truths about the nature of law. 相似文献
19.
Jeanne L. Schroeder 《Law and Critique》2007,18(1):117-142
H.L.A. Hart’s jurisprudence seems antithetical to Jacques Lacan’s psychoanalysis. Professor Schroeder argues that, in fact,
Hart’s concept of law has surprising similarities to Lacan’s ‘discourse of the Master’. Both reject a command theory of law:
subjects do not obey law out of fear. Moreover, both insist that the authority of law is completely independent from its content.
Anyone seeking to develop a psychoanalytically sophisticated critical legal theory should reconsider Hart. As insightful as
his concept of the symbolic is, Lacan has no expertise in legal systems and does not discuss positive law per se. Although he posited a theory of ethics in his Seventh Seminar and the seeds of a jurisprudence are implicit within his theory,
he offers no account of legal right, justice or what Hart misleadingly calls ‘morality’. A Lacanian jurisprudence must, therefore,
be supplemented by other sources.
Moreover, legal positivists should not dismiss psychoanalysis. As insightful as Hart’s jurisprudence is, his theories of legal
subjectivity and linguistics are simplistic and his concept of law too narrow. He describes only one aspect of legal experience:
obedience to law. He ignores what most legal actors do: Hart’s concept of law excludes the practice of law. Although Lacan’s ‘master’s discourse’ surprisingly parallels Hart’s jurisprudence, Lacan does not restrict the symbolic
to the master’s discourse. It requires three other ‘discourses’. Lacan, therefore, supplements Hart. Specifically, Lacan’s
fourth discourse describes the excluded practice of law and provides the mechanism by which ‘morality’ can critique law.
相似文献
Jeanne L. SchroederEmail: |
20.
Dawn Watkins 《Liverpool Law Review》2011,32(2):113-133
The significance of narrative as the primary form of human communication forms the basis of this paper. Following a brief consideration of the natural inter-relationship
between law and narrative, the author goes on to discuss the more specific application of a narrative approach to legal scholarship
and legal education. The paper sets out the findings of a practical research project that took as its inspiration James Boyd
White’s portrayal of the law student as a creative and imaginative thinker, and Martha Nussbaum’s claim that it is through
the power of ‘narrative imagination’ that we gain a broader appreciation and understanding of humanity. It explains how a
group of law students participated in ‘the Narrative Research Project’ at the University of Leicester; participating in story-telling
seminars and creating their own fictional narratives from appellate case reports. It describes the students’ reaction to the
project as heartening in the sense that they became more aware of the significant role that human actors play in legal proceedings,
but it also expresses doubts over the extent to which such an approach can, by itself, cultivate humanity in the law school. 相似文献