Locke’s short essay, “Venditio,” offers a series of thought-provoking examples of prices that might or might not be viewed as just. Locke writes as though these examples and his comments about them point to a coherent doctrine about which agreed-to prices are morally acceptable and which are morally unacceptable. However, despite the acuity of some of Locke’s observations, no such coherent doctrine emerges from Locke’s discussions of these examples. Indeed, many of the conclusions Locke reaches as he moves from example (...) to example are implausible in themselves or inconsistent with one another. Nevertheless, not all is lost. Locke’s observations can be viewed as thought experiments on his part which, in conjunction with insights from Locke’s other economic writings, indicate what features a doctrine of acceptable and unacceptable prices needs to possess. I show how a line of argument which appears almost as a sidebar within “Venditio” offers a doctrine that provides those needed features. That doctrine affirms both “the common law of traffic” and “the common law of charity” and a view about when the latter takes priority over the former. (shrink)

It is now commonplace in many jurisdictions for judges to refer to the decisions of the courts of foreign jurisdictions when interpreting domestic human rights guarantees. But there has also been a persistent undercurrent of scepticism about this trend, and the emergence of a growing debate about its appropriateness. This issue is of particular relevance in jurisdictions that have relatively recently incorporated human rights provisions that are significantly judicially enforced. In the UK, a reconsideration of the use of comparative judicial (...) decisions in human rights cases is therefore particularly timely. The interpretation of the Human Rights Act 1998 will bring with it the issue of how far British courts will (and/or should) use jurisprudence from other countries in order to help in arriving at decisions on the interpretation of the Act. This article raises for debate, therefore, the meaning and significance of national judges» citation of judgments from other jurisdictions as part of their reasoning in cases with a significant human (or constitutional) rights aspect. Several questions are identified and explored in an attempt to consider various aspects of the general phenomenon. These include empirical questions (how far does it happen, and where?), jurisprudential questions (can we identify criteria that help explain why it does or does not happen?), and normative questions (is it legitimate?). A review of the existing literature is undertaken with a view to determining how far scholars have succeeded in answering these questions. The article concludes that significant gaps exist in our understanding of the phenomenon and raises for discussion the methodologies that may be appropriate for addressing the phenomenon in the future. (shrink)

David Hume’s legal theory has normally been interpreted as bearing close affinities to the English common law theory of jurisprudence. I argue that this is not accurate. For Hume, it is the nature and functioning of a country’s legal system, not the provenance of that system, that provides the foundation of its authority. He judges government by its ability to protect property in a reliable and equitable way. His positions on the role of equity in the law, on artificial (...) reason and the esoteric nature of the law, and on the role of judges in the legal system are all at odds with those of the common lawyers. (shrink)

This volume in the Clarendon Edition of the Works of Thomas Hobbes contains A dialogue between a philosopher and a student, of the common laws of England, edited by Alan Cromartie, supplemented by the important fragment "Questions relative to Hereditary Right," discovered and edited by Quentin Skinner. As a critique of common law by a great philosopher, the Dialogue should be essential reading for anybody interested in English political thought or legal theory. Cromartie has established when and why (...) the work was written and has supplied extensive annotation (along with a substantial introduction) to make the work accessible to the non-specialist reader. The additional piece sees Hobbes mounting a robust defense of hereditary right, in the course of which he also makes some important general observations about the concept of a right. It is also of special interest as it constitutes Hobbes's last word on politics. (shrink)

The Draft Common Frame of Reference is just published. Now the creation of the final Common Frame of Reference is one of the most important issues in the field of European Private Law. The volume discusses the key question as to what extent the CFR can and should reflect existing EC Contract Law, and to what extent the DCFR has already incorporated the acquis communautaire. The contributions to this volume try to provide answers to this question by analyzing (...) different controversial areas such as the conclusion and content of the contract, non-performance, remedies, damages and the relation to International Private Law. (shrink)

This volume in the Clarendon Edition of the Works of Thomas Hobbes contains A dialogue between a philosopher and a student, of the common laws of England, edited by Alan Cromartie, supplemented by the important fragment 'Questions relative to Hereditary Right', discovered and edited by Quentin Skinner. As a critique of common law by a great philosopher, the Dialogue should be essential reading for anybody interested in English political thought or legal theory. Cromartie has established when and why (...) the work was written and has supplied extensive annotation to make the work accessible to the non-specialist reader. The additional piece sees Hobbes mounting a robust defence of hereditary right, in the course of which he also makes some important general observations about the concept of a right. It is also of special interest as it constitutes Hobbes's last word on politics. (shrink)

This little-known late writing of Hobbes reveals an unexplored dimension of his famous doctrine of sovereignty. The essay was first published posthumously in 1681, and from 1840 to 1971 only a generally unreliable edition has been in print. This edition provides the first dependable and easily accessible text of Hobbes's _Dialogue._ In the _Dialogue,_ Hobbes sets forth his mature reflections of the relation between reason and law, reflections more "liberal" than those found in _Leviathan_ and his other well-known writings. Hobbes (...) proposes a separation of the functions of government in the interest of common sense and humaneness without visibly violating his dictum that the sharing or division of sovereignty is an absurdity. This new edition of the _Dialogue_ is a significant contribution to our understanding of seventeenth-century political philosophy. "Hobbes students are indebted to Professor Cropsey for this scholarly and accessible edition of _Dialogue._"—J. Roland Pennock, _American Political Science Review_ "An invaluable aid to the study of Hobbes."—_Review of Metaphysics_. (shrink)

In this study, W. J. Waluchow argues that debates between defenders and critics of constitutional bills of rights presuppose that constitutions are more or less rigid entities. Within such a conception, constitutions aspire to establish stable, fixed points of agreement and pre-commitment, which defenders consider to be possible and desirable, while critics deem impossible and undesirable. Drawing on reflections about the nature of law, constitutions, the common law, and what it is to be a democratic representative, Waluchow urges a (...) different theory of bills of rights that is flexible and adaptable. Adopting such a theory enables one not only to answer to critics' most serious challenges, but also to appreciate the role that a bill of rights, interpreted and enforced by unelected judges, can sensibly play in a constitutional democracy. (shrink)

Most hospitals are considered charities under common law because they were established for the benefit of the public. The law granted them benefits, but also imposed duties. Under the cy-pres doctrine, if a charitable purpose becomes obsolete or incapable of being carried out, the court could modify those purposes to meet current needs of the organization and the community. Modern laws attempt to find a purpose as near as possible to original purposes set up by donors. In the case (...) of hospital conversion, some regulators say assets must be used to support hospital health care, while others say they can be used in the broad sense of health care. That has been a continuing conflict between communities and regulators.Since 1996, 30 conversion statutes have been enacted, covering hospitals, HMOs, and insurers. (shrink)

This Article takes an experimental approach to test whether the salience of the law as a system that governs an interaction affects people’s preferences. I find that when the law is made salient in an interaction people’s preferences are altered: they express more future-oriented preferences and donate less money to charity, as compared to when the law is not salient in an otherwise identical interaction. When the law is salient in an interaction people also prefer ‘products’ over experiences, but (...) this gap is only marginally significant. The findings suggest that the framing of an interaction as legal tends to evoke cultural scripts and implicit rules of behavior (“common knowledge”) that incorporate the shared assumptions in society about the law. In response, participants interpret the interaction as more rational and instrumental and express preferences accordingly. (shrink)

The notion that the firm, and economic activity in general, is inherently amoral is a central feature of positive economics that is also widely accepted in business ethics. Theories as disparate as stockholder and stakeholder theory both leave this central assumption unchallenged. Each theory argues for a different set of external ethical restrictions, but neither adequately provides an internal connection between business and the ethical rules business people are obliged to follow. This paper attempts to make this connection by arguing (...) that the purpose of business is to produce a good or service for trade. Trade involves both a respect for individual autonomy and property rights and squarely places moral norms internal to the practice of business. Trade is not a contingent activity of business, it is a practice rule which also provides the common sense boundary between business and charity on the one hand, and crime on the other. Business and those who engage in it are, from the internal point of view, bound by the purpose of trade and not just the laws of the land. (shrink)

This review article of Stumer (The presumption of innocence: evidential and human rights perspectives. Hart Publishing, Oxford, 2010) explores the concept, normative foundations and institutional implications of the presumption of innocence in English law. Through critical engagement with Stumer’s methodological assumptions and normative arguments, it highlights the narrowness of common lawyers’ traditional conceptions of the presumption of innocence. Picking up the threads of previous work, it also contributes to on-going debates about the legitimacy of reverse onus clauses and their (...) compatibility with European human rights law and general principles of criminal jurisprudence. (shrink)

Countering the influential view of Critical Legal Studies that law is an incoherent mixture of conflicting political ideologies, this book forges a new paradigm for understanding the common law as being unified and systematic. Alan Brudner applies Hegel's legal and moral philosophy to fashion a comprehensive synthesis of the common law of property, contract, tort, and crime. At a time when there is a strong tendency among scholars to view the common law as essentially fragmentary, inconsistent, and (...) contradictory, Brudner suggests instead a coherence that synthesizes several interrelated dichotomies: good-centered and right-based legal paradigms, instrumental and non-instrumental conceptions of law, externalist and internalist interpretations of the common law system, and communitarian and individualist attempts to found the legal enterprise. Brudner covers genuinely new ground through an interpretation of the common law from the standpoint of Hegelian legal philosophy. His unifying notion of common law corresponds to Hegel's notion of Geist, suggesting a designation of the mutual dependence of the community and the atomistic self for their confirmation as ends. (shrink)

Law moves, whether we notice or not. Set amongst a spatial turn in the humanities, and jurisprudence more specifically, this book calls for a greater attention to legal movement, in both its technical and material forms. Despite various ways the spatial turn has been taken up in legal thought, questions of law, movement and its materialities are too often overlooked. This book addresses this oversight, and it does so through an attention to the materialities of legal movement. Paying attention to (...) how law moves across different colonial and contemporary spaces, this book reveals there is a problem with common law's place. Primarily set in the postcolonial context of Australia - although ranging beyond this nationalised topography, both spatially and temporally - this book argues movement is fundamental to the very terms of common law's existence. How, then, might we move well? Explored through examples of walking and burial, this book responds to the challenge of how to live with a contemporary form of colonial legal inheritance by arguing we must take seriously the challenge of living with law, and think more carefully about its spatial productions, and place-making activities. Unsettling place, this book returns the question of movement to jurisprudence. (shrink)

The Hebrew phrase tikkun olam means repairing, mending or healing the world. Today, the phrase tikkun olam, particularly in liberal Jewish American circles, has become a slogan for a diverse range of topics such as activism, political participation, call and pursuit of social justice, charities, environmental issues and healthy nutrition. Moreover, the presidents of the United States who attend Jewish religious days and Jewish ceremonies state the tikkun olam in its Hebrew origin, pointing out its origin embedded in the Judaism (...) and a religious rule and/or an obligation that is important in Jewish tradition and thought. Nevertheless, when we look at the context of religious literature in which the phrase is used, it is seen that, although it is difficult to make a clear definition, it does not reflect modern/widespread uses and their meanings. Furthermore, tikkun olam is an ignored and even rejected concept by the Rabbinic Judaism which claims to represent the tradition and its current representative Orthodox Judaism. This fact is also seen in the usage and prevalence of the term in the U.S. and Israel. Thus, in this article, especially with reference to the norms of Mishnah, the religious-juristicial contexts and possible meanings of the phrase of tikkun olam, the notion of tikkun olam in Jewish liturgy and its implied meaning and the Kabbalistic understanding of tikkun will be presented, the development, changing and conversion of the phrase in modern age and its contemporary usage areas and reinterpretations will be demonstrated.Summary: Recently and especially in the U.S., the Hebrew phrase tikkun olam are used as a slogan in a widespread manner such as for activism, political participation, social justice, all kinds of charities, environmental issues, counter terrorism and healthy nutrition. Such a common usage of the phrase is largely the result of its literal meaning and ambiguity. Hence, this article aims to explore the place of the concept of tikkun olam in Jewish religious literature and its variations and semantic changes. Tikkun olam, literally means the repairing, mending or healing the world. However, regarding its religious context, it is difficult to determine what it means accurately. In time, some has used the tikkun olam as a legislative justification for changing specific laws, some has attributed to it an eschatological meaning which indicates to the mesianic age, and some has dicussed it in the context of mystical sense. The first usage of the phrase of tikkun olam in the Jewish religious literature was simply in the form of “because of tikkun olam” in Gittin epistle, a tractate of Mishnah and Talmud. Here, the phrase was used as a reason of a judgment concerning to the subjects of marriage, divorcement, slavery, captivity etc. In the context of these subjects tikkun olam indicates to the similar meanings like “repairing, organizing, healing, changing the world; regulating and improving the society, maintaining the social order, and prioritizing the common good. In fact, the concept of tikkun olam as the reason of the judgements in these matters is likely related to a juridical reason that intends to ensure the personal and public welfare such as clarifying the marital status of woman, to prevent the capture and seizure from Jewish society, and to deal with economy and identification of juridical status of the slaves.The other reference to tikkun olam appears in the second part of the aleinu prayer. However, the notion of tikkun olam in the aleinu prayer refers to a situation that happens in God’s Kingdom if Torah and halakhah are followed carefully. Hence, the aleinu prayer’s tikkun olam points out eschatological expectation which desires a messianic age, but not the socio-political and ecological concerns of the world as in the current fields and meanings.The modern idea of tikkun olam is also associated with the Jewish mystical movement, Kabbalah. Nonetheless, the concept of tikkun in Kabbalah is not a concept related to the socio-political circumstances of the world where we live in, but it is related to the restoring of the divine world. In order to restoring the divine world, human should fulfill the commands by studying Torah and have a spiritual and moral rehabilitation process by engaging in ascetic practices.The use of the phrase of tikkun olam gradually progress in the socio-political life of the U.S. The first use of the expression of tikkun olam in the U.S. was in the 1950’s by Shlomo Bardin, the founder of the Brandeis Camp Institute in California. Bardin asserted that the Aleinu prayer was the most important expression of Jewish values, particularly the expression “le-taken olam be-malchut shaddai” that is typically translated as “when the world shall be perfected under the reign of the God.” Bardin suggested that these words referred to the obligation of Jews to work for a more perfect world. The concept of tikkun olam entered contemporary usage by the way of its being preferred as a name to those such as social justice and charity programmes which was launched by the Reformist and Conservative groups in the second half of the twentieth century. In 1970s, United Synagogue Youth which is the national youth foundation of the conservative movement adopted the expression of tikkun olam and changed the title of its social action programs from “Building Spiritual Bridges” to “Tikkun Olam.” Nowadays, United Synagogue Youth proceeds all of its social activities and tzedakah programs through the tikkun olam project.By the end of 1970’s, New Jewish Agenda, an organization devoted itself to the religious and social values, acknowledged the slogan of “Tikkun Olam” as the spirit of its ideology. In 1986, Michael Lerner entitled a left-oriented liberal publication with the concept of Tikkun by claiming that this concept represented the origin of Judaism, and he take an important role on making the concept have a prevalence.Pittsburgh Platform organized in 1999 by the Reformist Jewish Movement emphasized that people must perform the most significant moral principles in the relationships with all non-Jewish people and all other creatures. This platform also stated that making the world a better place with the help of God would quicken the upcoming the messianic age. The tikkun understanding of the Reformist movement evolved to more universal realm by embracing the non-Jewish people, as well. Over the last two decades, successive presidents of the U.S. who attended in the ceremonies of Jewish religious days and Jewish assemblages have contributed to the prevalence and usefulness of tikkun olam by mentioning the phrase of tikkun olam in Hebrew, expressing that this is an essential principle of Judaism and addressing that this has a central role in Jewish tradition and thought. On the other hand, this concept does not have an important or a central place in Rabbinic Judaism and even in Orthodox Jewish communities which are the current representatives of Rabbinic Judaism. Moreover, Reformist, Conservative, and Reconstructionist American Jews who are considered on the liberal side of the politics has put the concept on the current use and the world’s agenda. Thus, the phrase of the tikkun olam is more popular in non-Judaic milieux in the U.S. than the Jews in Israel. In Israel where the Orthodox doctrine is dominated and shaped the people, tikkun olam is regarded as a western value and is ignored. (shrink)

This article traces the continuities in Pocock's work from his early exploration of the 'common law mind' to his recent work calling for a rethinking of English history and an appreciation of its British context. His work is understood here as the product of perspectives available to him as a New Zealander made aware by his own history of the central roles in all human history played by the movement of people across continents and (especially) across oceans, and by (...) the ways in which different cultures situate themselves in time. Pocock's exploration of the history of 'political thought' has, indeed, often been concerned most with that form of political thinking and identity formation that was rooted in a society's understanding of its own past. This is the key continuity explored in the article. (shrink)

To create a programming environment for contract dispute resolution, we propose an extension of assumption-based argumentation into modular assumption-based argumentation in which different modules of argumentation representing different knowledge bases for reasoning about beliefs and facts and for representation and reasoning with the legal doctrines could be built and assembled together. A distinct novel feature of modular argumentation in compare with other modular logic-based systems like Prolog is that it allows references to different semantics in the same module at the (...) same time, a feature critically important for application of argumentation in legal domains like contract dispute resolution where the outcomes of court cases often depend on whether credulous or skeptical modes of reasoning were applied by the contract parties. We apply the new framework to model the doctrines of contract breach and mutual mistake. (shrink)

Bentham is a severe critic of common law, denouncing it as ‘sham law’. Bentham’s denunciation of common law as ‘sham law’ is, however, an evaluative censure, not a descriptive account. A realistic account of the nature of common law can be constructed from his writings. According to this account, first, common law is a collection of authoritative mandates. Second, judicial decisions do not evidence common law; on the contrary, judges, through their decisions, create common (...) law by means of legalizing both customs and single actions. Common law is not, therefore, immemorial, nor did it originate in the people’s consent. Third, stare decisis is necessary for common law to fulfil the function of law, but it has no independent value: it is the principle of utility alone that explains, justifies, and decides the use of stare decisis. (shrink)

The focus of this study is to explore the impact of transformation from living as a community and perceiving cooperation as a responsibility to meet each other’s needs to individualized society of the modern life due to the capitalist market system on religious obligations with economic implications through emerging institution in the modern period. This study will first analyze how the proxy-embeddedness has led to a transformation in the society from the perspective of Islamic economics under four categories: (1) the (...) weakening of Muslims’ relations with their relatives and neighbours; (2) Equalization of worship for different purposes on a common denominator; (3) Lack of social awareness due to deprivation of the experience of performing worship personally; and (4) the prioritization of those capable of being productive over unproductive people in terms of being beneficiaries of zakat or other types of benefits. Worships such as zakāt and sacrifice are among the acts of worshipping that enable wealthy Muslims to help those in need financially. Although the transfer of material resources to the needy people through modern institutions ensures the fulfilment of worship, through which principles and objectives this transfer is carried out are also important. Significant transformations are observed in the way these worships are performed compared to the pre-modern period, as institutions that carry out zakāt and sacrificial meat collection and distribution activities in line with capitalist principles such as low transaction costs and efficiency. First, it is expected from a Muslim to be aware of the social environment he/she is in, be aware of the needy, and maintain social relations within this awareness. All kinds of charity and financial aid at the level of individual relations, especially zakāt and sacrifice, ensure the continuation of this awareness. If Muslims perform these worships and charity activities through institutions, the awareness of one’s environment will weaken. A second transformation is to make these worships indistinguishable from each other by equating them to the common denominator of paying money. This situation leads to the equalization of worship at the material level and causes the differences to be invisible for Muslims who perform the worship. A third transformation is that the realization of worship by institutions through the proxy system causes Muslims to be deprived of the experience of performing worship individually. While these prayers are performed through institutions in an efficient and low-cost way, the only thing expected from Muslims is to make the necessary payment through the bank. In this case, the spiritual contributions expected to be realized during the fulfilment of the worship decrease. Finally, we see that some institutions utilize capitalist principles and goals to decide who should receive financial aid. For this reason, people who can become a productive factor due to the help they receive are prioritized over others. There is a rational choice behind this decision mechanism: It is aimed to reduce the number of needy people in society by transforming zakat recipients into zakāt payers. On the other hand, Islamic sources do not consider such a priority among those who deserve to receive zakāt. Moreover, this situation will lead to the permanent postponement of people who are not included as a productive factor in the capitalist system but in need. In the second part of the study, an analysis of the agency (vekalet) system, which allows individuals to transfer some of their responsibilities to private institutions to spend time more efficiently, is conducted through the example of nursing houses. Another example of the fulfilment of zakat and sacrifice through the proxies given to institutions is that Muslims fulfil their responsibilities towards their relatives through institutions such as nursing houses. The reason for such a need arises from the fact that people, who take place as human capital in the capitalist system, are required to spend their time to improve themselves, get new education and gain more experience, instead of spending their time taking care of their relatives so that the production process can continue to grow. Although this type of service contract is formally valid in terms of Islamic law when evaluated in terms of the bond that Islamic morality envisages to be established between Muslims and their relatives and the protection of this bond, institutions such as nursing houses can lead to the commodification of family ties due to the transfer of responsibilities to relatives in return for a service fee. (shrink)

Defenses of pragmatic encroachment commonly rely on two thoughts: first, that the gap between one’s strength of epistemic position on p and perfect strength sometimes makes a difference to what one is justified in doing, and second, that the higher the stakes, the harder it is to know. It is often assumed that these ideas complement each other. This chapter shows that these ideas are far from complementary. Along the way, a variety of strategies for regimenting the somewhat inchoate notion (...) of stakes are indicated, and some troubling cases for pragmatic encroachment raised. (shrink)

Proponents of strict rule-based theories of judicial reasoning in common-law systems have offered a number of criticisms of analogical alternatives. I explain these criticisms and show that at best they apply equally well to rule-based theories. Further, I show how the analogical theories explain a feature of judicial common-law reasoningthat rule-based theories ignore. Finally, I show that reason-based, analogical theories of common-law judicial reasoning, such as those offered by John Horty and Grant Lamond, offer especially strong rejoinders (...) to the rule-theorist objections and persuasive accounts of distinguishing. (shrink)

How are general relations of law and morality typically conceived in an environment of Anglo-saxon common law? This paper considers some classical common law methods and traditions as these have confronted and been overlaid with modern ideas of legal positivism. While classical common law treated a community and its morality as the cultural foundation of law, legal positivism's analytical separation of law and morals, allied with liberal approaches to legal regulation, have made the relationship of legal and (...) moral principles more complex and contested. Using ideas from Durkheim's and Weber's sociology, I argue that the traditional common law emphasis on an inductive, empirical treatment of moral practices has continuing merit, but in contemporary conditions the vague idea of community embedded in classical common law thought must be replaced with a much more precise conceptualisation of coexisting communities, whose moral bonds are diverse and require a corresponding diversity of forms of legal recognition or protection. (shrink)

Gerald Postema presents the collected writings on legal, political, and moral theory of a key thinker of the 17th century, Sir Matthew Hale. Hale develops a unique and sophisticated account of the nature and foundations of common law, with extended reflections on natural law, moral and legal reasoning, and the legal limits of political authority.

Common formulations of the principle of charity in translation seem to undermine attributions of irrationality in social scientific accounts that are otherwise unexceptionable. This I call the problem of irrationality. Here I resolve the problem of irrationality by developing two complementary views of the principle of charity. First, I develop the view (ill-developed in the literature at present) that the principle of charity is preparatory, being needed in the construction of provisional first-approximation translation manuals. These serve (...) as the basis for explanatory accounts and associated refinements in the translation manual. In developing such explanatory accounts, the principle of charity is no longer constraining. Thus, the principle of charity applies only in the early stages of constructing translation manuals, and there is no problem of irrationality in the later stages of constructing translation manuals. Second, I reduce the principle of charity, where it does apply, to a special case of what I call the principle of explicability: so translate as to attribute explicable beliefs and practices to the speakers of the source-language. I show that the appropriate formulation of the principle of charity counsels just what the principle of explicability requires in the early stages of social scientific investigation. (shrink)

Not only is the common‐law standard of proof of mere likelihood in ordinary civil cases justifiable, but its justifiability supports the conclusion that there is no general norm that one must assert that p only if p is known. An argument by Voltaire is formalized to show that the mere likelihood standard is rational. It is also shown that no applicable norm preempts the common‐law rule. An objection that takes the pertinent knowledge‐norm to be honoured in the breach (...) is rejected by appeal to the absence of blameworthiness in alleged breaches of interest. An objection that takes civil verdicts to be manifestations of acceptance, rather than assertoric, is considered and rejected. (shrink)

This book offers a philosophical interpretation of the historical debate between Bentham and classical Common Law Theory, a debate that is fundamental to philosophical thought and has shaped contemporary conceptions of nature, tasks, and limits of law and adjudication. The author explores the philosophical foundations of Common Law theory, focusing particularly on the writings of Sir Mathew Hale and David Hume.

This paper challenges a common assumption in the literature concerning the problem of divine hiddenness, namely, that the following are inconsistent: God's making available adequate evidence for belief that he exists and the existence of non-culpable nonbelievers. It draws on the notions of defeated evidence and glimpses to depict the complexity of our evidential situation with respect to God's existence.

This article explains the apparent tension between Hobbes' late work A Dialogue between A Philosopher and A Student of the Common Laws of England and his avowed goal of a deductive philosophy which eschews rhetoric and history, by analysing the difference between Hobbes' civil and natural philosophy. A Dialogue's simultaneous use of deduction, rhetoric, and historical citation is congruent with the method applied by Hobbes in Leviathan in order to construct his "civil philosophy". This highlights Hobbes' awareness increasing with (...) the years of the difference between the teachings of "natural philosophy" which are understood by demonstration, and once this is done are evident per se, and those of politics and jurisprudence which in order to make the people obey the sovereign maintaining peace and security, may require employing the language of persuasion before and after being demonstrated. However, I have argued that the awareness of this difference does not undermine the general unity of his philosophical system and in particular of his notion of science. (shrink)

We were delighted to be asked by the editors of the American Journal of Bioethics to provide this editorial in response to Dr. Ariane Lewis’s paper “An Overview of Ethical Issues Raised by Medicole...

This article will argue that there is a coherent and attractive middle way between common law constitutionalism and the procedural conception of democracy, the two dominant positions on the legitimacy of strong constitutional judicial review. I will explore an intriguing alternative that decouples the legitimizing principles and institutional claims of the two dominant positions and argues that (i) democratic decision-making cannot be legitimate if it violates substantive principles of morality; and (ii) the strong form of constitutional review is problematic. (...) This article will present four theses. First, I will argue that political liberalism, properly defined, can allow us to avoid both the tyranny of the majority and the rule of Platonic guardians. Secondly, even if we can deflect both dangers, there is still real tension between the liberal principle of legitimacy and the procedural conception of democracy. Thirdly, if we accept the liberal principle of legitimacy, we have to grant a pivotal role to the epistemic credentials of our institutions. Finally, I will contend that courts should not be authorized to invalidate statutes on the ground that they violate fundamental moral principles. (shrink)

At the beginning of the year, the Draft Common Frame of Reference (DCFR) was published. The text is the result of the work of a broad range of private law scholars from the Member States of the European Union, and it presents itself as an ‘academic’ document, committed to the precepts of scholarship rather than politics. Notwithstanding its unwieldy name, the text is nothing less than the draft of the central components of a European Civil Code. The following article (...) aims to inform the reader about this potentially important document and to initiate further academic debate about it. Following an overview of the genesis and content of the DCFR (Part 1), the discussion focuses on whether, and to what extent, it is based upon consistent and convincing core aims and values (Part 2). The article then proceeds to address, more specifically, the significance of private autonomy, and it examines the extent to which the proposed rules satisfy the requirements of legal certainty and legal clarity (Part 3). Thereafter, the DCFR is measured against the criteria of internal consistency and systematic integrity (Part 4). Also (Part 5) the question is asked whether the Draft critically reflects and convincingly integrates the sources on which it is based (that is the Lando Commission's Principles of European Contract Law and the Acquis Principles, as well as the private law traditions of the Member States). Also deserving of attention is the inclusion of more than 120 definitions of central concepts of private law, which are not to be found in this form or level of detail in either the Lando Principles or the national private laws (Part 6). (shrink)

In 1969, John McCarthy and Pat Hayes uncovered a problem that has haunted the field of artificial intelligence ever since--the frame problem. The problem arises when logic is used to describe the effects of actions and events. Put simply, it is the problem of representing what remains unchanged as a result of an action or event. Many researchers in artificial intelligence believe that its solution is vital to the realization of the field's goals. Solving the Frame Problem presents the various (...) approaches to the frame problem that have been proposed over the years. The author presents the material chronologically--as an unfolding story rather than as a body of theory to be learned by rote. There are lessons to be learned even from the dead ends researchers have pursued, for they deepen our understanding of the issues surrounding the frame problem. In the book's concluding chapters, the author offers his own work on event calculus, which he claims comes very close to a complete solution to the frame problem. Artificial Intelligence series. (shrink)

Constitutional Charters or Bill of Rights have been applauded because of the protection they provide to minorities and also in ensuring and protecting fundamental rights, however, Charters have been criticized for being considered morally and politically objectionable. The author responds to Charter critics most serious objections and offers some reasons for adopting an alternative framework.

In recent years there has been increasing concern about the various forms of abuse faced by birthing patients during labour and childbirth. Common examples include being scolded, slapped, pinched, stabbed with scissors or struck with a ruler or other instruments. This mistreatment is collectively termed obstetric violence.A growing body of literature examines legal responses to obstetric violence including the potential use of the criminal law. The present article explores whether, in South Africa, common-law crimes or statutory offences could (...) be used to prosecute healthcare workers for the range of harms falling within the broad definition of obstetric violence. It does not question whether criminal law is an appropriate response in this instance.The article concludes that existing crimes are sufficient to address obstetric violence. It is clear that the common-law crimes of crimen iniuria, assault, assault with intention to commit grievous bodily harm and the statutory offence of involuntary sterilisation, could be used to address both physical and emotional forms of obstetric violence. It is submitted that they cater adequately for the broad range of conduct that potentially falls into the definition of obstetric violence. Further research is required in this area and it may mean that prosecutorial guidelines are needed. (shrink)

Since its publication in early 2008, the DCFR has triggered an intensive discussion throughout Europe. The contributions combined in the present volume stand out as they add a Law & Economics perspective to the ongoing debate. A workshop held at the Law and Economics Faculty of the University of Bonn in November 2008 aimed at stimulating the debate on the economic implications of the principles and rules enshrined in the DCFR. An essential part of the papers presented at the Bonn (...) workshop are now being published. The topics addressed range from general issues such as the policies of anti-discrimination and consumer protection to analyses of specific legal areas, like the law of remedies, the law of service contracts and the law of torts or delict. (shrink)

This paper defends partiality as an inherent, essential part of ethical decision-making. First, the concept of charity as a kind of universal benevolence is spelled out, drawing on key ideas from classical religious thinking. I then argue that any justification of partiality must appeal to the good first, rather than rights. There follows a justification of partiality via an argument from the idea of control over the good. The next section seeks to harmonize partialistic preference with universal charity, (...) explaining the concept of love of neighbour. There follows an outline of the key principles required for setting out an order of charity based on different kinds of special relationship. While not all of this theistically driven approach to the order of charity translates easily into secular moral thought, enough does to suggest that the view defended is at the least worthy of consideration and not to be dismissed lightly. At best, it has much in it that is commendable to secular common sense. (shrink)