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)

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)

This paper offers re-assessment of Scottish Common Sense rhetoric and its relationship to pluralist practice and philosophical method. It argues that the rhetorical texts of George Campbell, Hugh Blair, and Alexander Bain can be read as a practical application of Scottish Common Sense philosophy. This offers a novel means of examining the relationship that Scottish rhetoric has to the philosophy of David Hume and also its own innovative philosophy of language. Finally, I argue that Scottish rhetoric makes a (...) unique contribution to rhetorical methodology's key place in the creation of social and moral consensus. (shrink)

Almost every state has its own legal system and there is a legal system in accordance with the social norms of the state. However, although states have autonomy with their own legal systems, the legal system of each state unites under larger legal systems. From this point of view, three major legal systems can be accepted; Anglo-Saxon Legal System (English Legal System, Common Law), Continental European Legal System (Legal system of European states based on Roman law), Social Legal System (...) on which Russian Federation is based. Apart from these systems, there is also an Islamic legal system with its unique structure. The reason why the Islamic legal system is unique is that it is based on both religious and rational sources. In general, the case-based method is used in the Anglo-Saxon Legal System, and the rule-based method is used in the Continental European Legal System. Which one of these two method used by Islamic law which takes its source from Qur’an and hadith well? Or is it use both methods? Our aim in this study, in addition to analysing the operation of these two methods in Islamic law from a logical point of view, is to analyse the integration of the rule-based method into the case-based method and the case-based method with the rule-based method. With this research it is to provide a logical proposal to extend the intended use of analogy in Islamic law. As a matter of fact, we think that different branches of science should come together in order to produce new suggestions in this field. (shrink)

A vast literature has developed probing the law's aversion to statistical/probability evidence in general and its rejection of naked statistical evidence in particular. This literature rests on false premises. At least so far as US law is concerned, there is no general aversion to statistical forms of proof and even naked statistics are admissible and sufficient for a verdict when the evidentiary proffer meets the normal standards of admissibility, the most important of which is reliability. The belief to the contrary (...) rests upon a series of mistakes: most importantly, mismodeling of the structure of legal systems and the nature of common law decision making. Contributing to these mistakes is the common methodology in this literature of relying on weird hypotheticals that mismodel the underlying legal relations and contain impossible epistemological demands. Collectively, these phenomena have distracted attention from issues that actually affect real legal systems. (shrink)

Law and History contains a collection of essays by prominent legal historians, which explore the ways in which history has been used by lawyers past and present to answer legal questions. In common with earlier volumes in the Current Legal Issues series, it seeks both a theoretical and methodological focus. This volume covers a broad range of topics, from a discussion of the nature of norms in the middle ages to the role of war crimes trials in the twentieth (...) century. It includes wide-ranging historiographical discussions, which examine the nature and aims of the legal historian, as well as contributions which explore the methodology and aims of writers such as Coke, Maine, Weber, Montesquieu, and Kames, who sought to use historical models to explain law. A number of contributions examine developments in legal doctrine, particularly in the nineteenth century, including developments in the law of contract, administrative law, and perjury. These raise important questions about the nature of the legal categorizations which developed in that era. Law and History also includes a collection of contributons on the use of history in twentieth century trials, including the Nuremberg trials, the trial of the Gang of Four, and trials arising from the events in the former Yugoslavia and Rwanda. (shrink)

In the last two decades, the philosophy of criminal law has undergone a vibrant revival in Canada. The adoption of the Charter of Rights and Freedoms has given the Supreme Court of Canada unprecedented latitude to engage with principles of legal, moral, and political philosophy when elaborating its criminal law jurisprudence. Canadian scholars have followed suit by paying increased attention to the philosophical foundations of domestic criminal law. Because of Canada's leadership in international criminal law, both at the level of (...) the International Criminal Court and of specific war crimes tribunals, they have also begun to turn their attention to international criminal law per se. This collection seeks to bring all these Canadian voices together for the first time, and evidence the fact that criminal law theory is no longer to be associated exclusively with the older British, German and American traditions. The topics covered include questions of philosophical methodology, the legitimate scope of domestic and international criminalization, rationales for criminal law defences in both domestic and international law, the philosophical underpinnings of specific crimes and forms of joint responsibility, as well as the theorization of criminal procedure and evidence law. ENDORSEMENTS "In continental Europe, academic commentary on the criminal law has long manifested large philosophical ambitions. Less so in common-law countries, where the dominance of jury trial and the piecemeal development of case-law, together with the famously robust attitudes of common lawyers, have militated against detailed philosophical engagement with doctrine. Over the last 20 years or so, however, new generations of philosophically-literate lawyers and legally-informed philosophers have overcome the historic resistance. Nowhere more so, it seems, than in Canada, where the common law and civilian traditions meet. In 'Rethinking Criminal Law Theory', François Tanguay-Renaud and James Stribopoulos have joined with 14 talented Canadian colleagues to showcase the tremendous breadth and depth of their contemporary national contribution to the subject. Ranging across topics as diverse as emergency, obscenity, and insanity, these essays - without exception insightful and penetrating -set a high standard for the rest of us to aspire to.'' John Gardner, University of Oxford "'Rethinking Criminal Law Theory' is an excellent collection of essays demonstrating the vigour, creativity and range of Canadian criminal justice scholarship. It covers a wide range of problems and issues both in the domestic and the international context. Core questions are examined in depth and new questions are brought to the fore. I recommend it very highly to criminal lawyers and philosophers of the criminal law." Professor Victor Tadros, University of Warwick "'Rethinking Criminal Law Theory 'is packed with outstanding contributions from criminal law theorists who are among the best not only in Canada, but in the whole English-speaking world. Broad and deep in its coverage, the collection offers fresh approaches to a wide range of cutting-edge issues in the field. It provides a resource readers will come back to repeatedly." Stuart Green, Professor of Law and Justice Nathan L Jacobs Scholar, Rutgers University. (shrink)

The way comparative law methodology is handled by the variety of experiences of normative complexity around the world is, in itself, a stimulating and promising field of research. In particular, the “hybrid” character of the European Union legislation, being juridical and linguistic at the same time, remains the core of comparative law studies, but the dynamic relationship between law and language is constanlty producing ever-changing scenarios, calling for combined scientific approaches. Along with comparative law, semiotics in particular has ensured (...) the proper reading of the complex juridical and linguistic interconnections between the EU legislation and the national courts interpreting and applying them, thanks to its implicit dynamicity and ability to favor the visualization of the real normative semantic flow. By means of a case study, the opening of this “Pandora’s box” will demonstrate that, despite the lack of correspondence among EU categorical and conceptual structure, legal language, court enforcement and spirit of the people (social group), shared contexts of meanings within the EU and the national contexts are already flourishing and become visible when approached from a specifically comparative and semiotics point of view, that's to say as legal _formants_ and as _signs_ and _meta-concepts._. (shrink)

In this article the author claims that Waluchow’s “living tree constitutionalism” constitutes a “copernican revolution in our thinking”, because it provides not a mere common law theory of judicial review but a general theory of judicial review and of constitutional democracy. Although agrees that something like the common law methodology is at play here, disagrees on characterizing it as bottom-up. Accordingly, intends to praise the main aspiration of A Common Law Theory of Judicial Review: The Living (...) Tree, i.e. to provide a better understanding of charters and judicial re- view in a constitutional democracy by “the living tree” metaphor; to appraise an unwarranted claim, i.e. to reduce it to the common law bottom-up methodology; and, to raise the alternative with a friendly amendment, i.e. to identify the community’s constitutional political morality via, a method that is both bottom-up and top-down, which is already explicit —or at least implicit— in his account.Resumen:En este artículo el autor sostiene que el “constitucionalismo del árbol viviente” de Waluchow constituye una “revolución copernicana en nuestro pensamiento”, dado que proporciona no sólo una teoría del judicial review, sino una teoría general del judicial review y de la democracia. No obstante que el autor coincide en que en esta teoría de Waluchow existe un lugar para una metodología del common law, discrepa en caracterizarla como una que va de “abajo hacia arriba”. Por lo tanto, el objetivo del artículo es resaltar la importancia del argumento principal del libro A Common Law Theory of Judicial Review: The Living Tree por medio del cual se intenta proporcionar un mejor entendimiento de las garantías individuales y del judicial review, pero advertir una consecuencia innecesaria, es decir, reducir la explicación a una metodología del common law de “abajo hacia arriba”. A su vez el autor pretende proporcionar una corrección amigable: identificar la moralidad política constitucional de la comunidad a través de un método que es tanto de “abajo hacia arriba” como de “arriba hacia abajo”, metodología que se encuentra implícita en el libro de Waluchow. (shrink)

This article is a contribution to interdisciplinary scholarship addressing the presumption of innocence, especially interdisciplinary conversations between philosophers and jurists. Terminological confusion and methodological traps and errors notoriously beset academic literature addressing the presumption of innocence and related concepts, such as evidentiary presumptions, and the burden and standard of proof in criminal trials. This article is diagnostic, in the sense that its primary objective is to highlight the assumptions—in particular, the disciplinary assumptions—implicit in influential contributions to debates on the presumption (...) of innocence. It advocates a methodologically pluralistic approach, according to which definitions of the presumption of innocence are necessarily sensitive to purpose and method. These relationships and their implications are not always appreciated, and are seldom explicitly elucidated. Notably, philosophers routinely treat the presumption of innocence as epistemic, evidentiary or otherwise featuring directly in practical reasoning. This article identifies jurisprudential and practical reasons why legal scholars and practitioners concerned with criminal procedure and evidence should reject evidentiary interpretations of the presumption of innocence. By encouraging finer-grained engagement with the history and institutional details of common law procedural traditions, the article aims to show why legal scholars might think that philosophical approaches to the presumption of innocence are already methodologically-loaded and, for our purposes, address the wrong questions with deficient concepts. (shrink)

Despite a common agenda of normative analysis of the international order, philosophical work on international political morality and international law and legal scholarship have, until recently, worked at a distance from one another.The mutual suspicion can be traced to different aims and methodologies, including a divide between work on matters of deep structure, on the one hand, and practical institutional analysis and prescription, on the other. Yet international law is a key part of the normative practices ofstates, has a (...) direct effect on state behavior, and, as a meth-odological matter, can contribute to good theorizing onmatters of international ethics. Recently, philosophical workhas demonstrated a greater engagement with the moral aspects of international law. One strand of scholarship has treated the rules of international law as a proper subject for philosophical inquiry. Another has used international legal rules to support moral arguments about aspects of the international order. Future dialogue and cooperation would benefit both fields, in particular on the challenges to global cooperation from nationalism and on strategies for allocating responsibilities among global actors for rectifying global harms. (shrink)

There is an ever-increasing interest in the question of how and why legal norms can effectively guide human action. This compact volume demonstrates how economic tools can be used to examine this question and scrutinize these legal norms. Indeed, this is one of the first text to be based on civil law instead of the more usual common law, situating the study of both private and public law within the framework of institutional economics, with recommendations for further reading and (...) a list of key terms in each chapter. Besides the standard economic problems in property, tort, contract, crime and litigation, areas covered include: new institutional economics public choice constitutional law public administrations regulatory impact analysis. This book is essential reading for students in law schools and economics departments alike, particularly those engaged with the methodology of law and economics, applied economics and economic methods of legal policy. (shrink)

We note an increasing consciousness of weakness of legal methodology taught to law students today: The students get neither real idea nor feeling of legal decision-making as mixture of legal matters, issue of facts, personal inputs, diverging interests, and the interplay with other actors. For minimize these defects it is necessary that law students learn in legal studies the following points: (1) Legal decision-making is a special kind of decision-making and is embedded in all problems of this process. (2) (...) Jurisprudence is a hybrid science: It deals with facts of issue as well with legal matter. (3) Jurisprudence will be understood as transnational science and requires greater cooperation between law schools all over the world. (4) Legal education should focus on general principles and legal tools rather than on detailed rules. (5) Legal theory should demonstrate students our lack of understanding legal decision-making. (6) A realistic legal methodology has to take into account the impossibility of absolute certainty of the correctness of legal decision. (7) It is important to point out that analysis of facts of the case as crucial part of legal methodology requires teaching systems to introduce students in the respective techniques in practice like case studies, projects as well as legal clinics or SASLA-system. (shrink)

We argue that legal argumentation, as the subject matter as well as a special subfield of Argumentation Studies (AS), has to be examined by making skilled use of the full panoply of tools such as argumentation and story schemes which are at the forefront of current work in AS. In reviewing the literature, we make explicit our own methodological choices (particularly regarding the place of normative deliberation in practical reasoning) and then illustrate the implications of such an approach through the (...) analysis of a case study in the English law of evidence. We argue that a clear distinction must be drawn between practical argumentation and stories. Because of the institutional separation between legal judgment and fact-finding in common-law jury trials, we argue for the combination of argument and story-based analysis. (shrink)

The authors use social science methodology to determine whether a doctrinal shift—from an objectivist view of criminality in the common law to a subjectivist view in modem criminal codes—is consistent with lay intuitions of the principles of justice. Commentators have suggested that lay perceptions of criminality have shifted in a way reflected in the doctrinal change, but the study results suggest a more nuanced conclusion: that the modern lay view agrees with the subjectivist view of modern codes in (...) defining the minimum requirements of criminality, but prefers the common law's objectivist view of grading the punishment deserved. The authors argue that there is practical value in having criminal law track shared community intuitions of the proper rules for assigning liability and punishment. For that reason, the study results support the often criticized subjectivist view of modern codes in setting the minimum requirements of liability, but disapprove of the modern codes' shift away from the common law's objectivist view of grading. (shrink)

(Under contract with Oxford University Press, Oxford Legal Philosophy series.) -/- This book is a legal and ethical study of state entrapment: that is, entrapment by law-enforcement agents or their deputies. -/- It approaches entrapment via three questions: definition (What makes an act one of entrapment?), permissibility (Under what conditions, if any, is entrapment permissible?), and implications (When someone has been entrapped, what remedy, if any, is appropriate? More broadly, how should the law respond?). It explains these questions, looks at (...) how the law and scholars have answered them, gives our answers to them, and is structured according to them. It treats these questions as distinct, and that of definition as prior (in a sense that it clarifies) to the others. -/- The methodology deployed combines applied analytical philosophy with approaches to comparative legal studies that are predominantly analytical and historical. The main focus, in terms of scope, is upon common-law jurisdictions in the Anglophone world. (shrink)

We argue that a particular approach to satisfying the broad predictive ambitions of the sciences demands law confirmation. On this approach we confirm non-nomic generalizations by confirming there are no actually realized ways of causing disconfirming cases. This gives causal generalizations a crucial role in prediction. We then show how rational judgements of relevant causal similarity can be used to confirm that causal generalizations themselves have no actual disconfirmers, providing a distinctive and clearly viable methodology for inductively confirming them. (...) Finally, we argue that for agents in our epistemic position using this methodology to confirm causal generalizations of adequate breadth will commonly demand law confirmation. We make a prima facie assessment of the methodology’s fit with scientific practice and briefly consider the prospects for an associated analysis of laws. (shrink)

Bentham's central concern during the 1810s and 1820s was with the codification of the law. Rejecting both the common law and the historical approach to codification, he argued that a code of law should be based on a rigorous logical analysis of the categories of human action, and that each enactment should be followed by the reasons which justified it. Such an `all-comprehensive' code containing an `interwoven rationale' would signal a new era in legislation. Once one state had adopted (...) such a code, other states would be obliged to follow its example, and Bentham would become in effect 'legislator of the world'. Bentham attempted to persuade legislative authorities in the United States of America, Russia, Spain, Portugal, Greece, South and Central America, and elsewhere, to invite him to draft a code of law for them. The works presented in this volume record in fascinating detail Bentham's dealings with such eminent figures as James Madison, John Quincy Adams, Emperor Alexander I, Prince Adam Czartoryski, Alexander Mavrokordatos, Bernadino Rivadavia, and José del Valle. The production of a methodology for codification ranks as one of Bentham's outstanding theoretical achievements. Through the materials presented in this volume he emerges as a seminal figure in the development of liberalism throughout Europe and America in the early nineteenth century. (shrink)

Abstract Nominalists, denying the reality of anything over and above concreta, are committed to a reductive account of any law of nature, explaining its necessity?the fact that it not only holds for all actual instances, but would hold for any additional ones?in, for example, epistemic terms (its likelihood/certainty of holding beyond the already observed instances). Nominalists argue that the world would be no different without irreducible modalities. ?Modal realists? often object that this parallels a common phenomenalist argument against believing (...) in a mind?independent external world. However, phenomenalism without translatability into sensory language is incoherent, though any such translation is impossible. The ?as if philosophy is untenable as well. But it is quite possible to formulate inductive methodology's imperatives in non?modal terms. Modal realism purports to give a reason against inductive scepticism, but does not go beyond saying that there is one. (shrink)

The problem of idealization in empirical sciences is very rarely taken up in works concerned with the methodology of those sciences. It seems to be common knowledge that in advanced natural sciences references are made to concepts such as “perfectly rigid body,” “material point,” “perfect gas,” etc., but it remains a fact that the most important methodological concepts, concepts which have determined the present-day form of the philosophy of science, have been advanced without regard to the peculiarities of (...) the procedure mentioned above. And yet a moment's consideration suffices to raise doubts as to Carnap's physicalism and/or Popper's falsificationism if we just realize the trivial and commonly known truth that empirical sciences resort to idealizationism. For how are we to imagine a reduction of idealizational concepts to observation terms? And how are we to imagine that theorems which include idealizational concepts imply observation statements which refute, or at least are at variance with, those theorems? But it is a fact that such doubts have neither been raised by the authors of the conceptions mentioned above, nor have they been raised against them. (shrink)

We revisit Naturalized Epistemology and the Law of Evidence, published twenty years ago. The evolution of the relative plausibility theory of juridical proof is offered as evidence of the advantage of a naturalized approach to the study of the field and law evidence. Various alternative explanations of aspects of juridical proof from other disciplines are examined and their shortcomings described. These competing explanations are similar in their reductive, a priori approaches that are at odds with an empirically oriented naturalized approach. (...) The shortcomings of the various a priori approaches are driven by their common methodological commitments to employing weird hypotheticals to engage in intuition mining about the American legal systems that in turn ignore important aspects of the actual legal systems and consistently make impossible epistemological demands. As a result, both their descriptions of and prescriptions for American legal systems are implausible, unlike the relative plausibility theory. (shrink)

The legal doctrine of ‘common purpose’ in South African criminal law considers all parties liable who have been in implicit or explicit agreement to commit an unlawful act, and associated with each other for that purpose, even if the consequential act has been carried out by one of them. It relieves the prosecution of proving the causal link between the conduct of an individual member of a group acting in common purpose, and the ultimate consequence caused by the (...) action of the group as a whole. The National Prosecuting Authority’s controversial and vociferously challenged decision to charge 270 demonstrators at Lonmin Platinum Mine in Marikana with the murders of 34 colleagues under the ‘common purpose’ doctrine, implying liability by association or agreement, raises the question as to the constitution and characteristics of the crowd and of the public, respectively. This article outlines the history of the application of the common purpose rule in South Africa, to then examine ‘common purpose’ within the philosophical parameters of group psychology and collective intentionality. It argues for methodological individualism within a psychoanalytic theorisation of group dynamics, and a non-summative approach to collective intentionality, in addressing some problems in the conceptualisation of group formation. (shrink)

Applied sociology will be understood in the following discussion as a unique and original form of sociology; i.e., in its logic and practice distinguished from traditional sociology it is understood as an explanatory body of knowledge and an intellectual discourse about intentional/purposeful social action and behavior. The application of sociology proper to such substantive fields as family, art, law and sport, commonly called applied sociology, which reproduce the body of sociological knowledge just a second time, is not part of such (...) understanding. Applied sociology in its original sense has its own logic in which purpose, implementation and the process of social-problem solution are crucial. It will in the end lead to an applied action or implementation theory. It is, to paraphrase Lazarsfeld, the methodology of “sociology in action” (1960). (shrink)

ABSTRACTThe question of how common usage could be constitutive for the meaning of linguistic expressions has been discussed by Renaissance philosophers such as Lorenzo Valla, and it also played an important role in Renaissance theories of juridical interpretation. An aspect of the analysis of common usage in Renaissance theories of juridical interpretation that concerns the role of presumption has not yet found much attention. Renaissance jurists such as Simone de Praetis, Nicolaus Everardus, and Aimone de Cravetta saw that (...) both the usage of Latin by practitioners of law and the vernacular common usage of ordinary people often differed from the technical definition of legal concepts as laid down by ancient jurists or modern legislators. In some cases, they ascribed both to Latin and to vernacular common usage the power of changing the meaning of juridical terms. Still, they were aware of the fact that matters of common usage involve always a degree of uncertainty. The methodological notion of presumption is one of the concepts that figured most prominently in Renaissance approaches to the problem of uncertainty, and, in particular, it was applied in the analysis of meaning-change of legal concepts through common usage. (shrink)

In ‘What Has Philosophy to Learn from Tort Law?’, Bernard Williams reaffirms J. L. Austin’s suggestion that philosophy might learn from tort law ‘the difference between practical reality and philosophical frivolity’. Yet while Austin regarded tort law as just another repository of time-tested concepts, on a par with common sense as represented by a dictionary, Williams argues that ‘the use of certain ideas in the law does more to show that those ideas have strength than is done by the (...) mere fact that they are part of the currency of common sense’. But what does it mean to show that ideas or concepts ‘have strength’? How does conceptual strength relate to the distinction between practical reality and philosophical frivolity? And what special features of the law are supposed to make it a better test of conceptual strength than common sense? In this chapter, I reconstruct and develop Williams’s answers to these questions. I show why Williams believes that we need to test the concepts forming the currency of common sense against practical reality as embodied by legal practice; I identify seven features of tort law that make it particularly suitable to act as such a test; I distinguish three respects in which concepts can show strength, and unpack Williams’s metaphor of microwave-resistant concepts: concepts capable of holding and presenting material for intense critical scrutiny without succumbing to it themselves; lastly, I show how philosophy can learn to identify systematically weak concepts, and the limits of otherwise valuable concepts, by considering which concepts fail the test. (shrink)

This paper is a rejoinder to papers by Sabina Lovibond, Nicholas Wolterstorff, Sumner B. Twiss, G. Scott Davis, M. Cathleen Kaveny, and John Kelsay on the author's recent book "Democracy and Tradition". The argument covers a host of topics, ranging from epistemology and methodology to human rights, the common law, and Islamic ethics.

Marxist historiography has always claimed to be "conceptually" rooted in the natural sciences and has therefore been concerned with the function of laws, the structure of theories, and the logical relations between hypotheses and empirical data. Minimal criteria for the identification of a scientific research program as developed by Lakatos and Laudan include: a negative heuristic; explanatory or predictable scientific theories; a central model or paradigm; identification and solution of internal problems; self-conscious awareness by researchers of a common tradition; (...) and the internal dynamics of conflict and convergence. Less than a generation ago, Marxist scholarship seemed to offer the most innovative methodologies in history. More recently, however, Marxist scholarship seems to be reliving old glories while other approaches have advanced more innovative research programs. (shrink)

In assessing compliance with the Rule of Law, the contested nature of the concept renders the use of a single theorist’s conception or, alternatively, the adoption of a hybrid conception open to criticism. There is no settled and practical way to determine Rule of Law non-compliance. It is argued that by looking behind the concept’s contestedness, Rule of Law non-compliance can be identified. The fundamental needs undergirding canonical conceptions are used to identify common elements of the Rule of Law. (...) By taking this approach, two necessary Rule of Law elements are distilled: Comprehension; and, Procedural Pellucidity. As a result of their elemental nature, an inability to comply with the elements reflects a total inability to satisfy the Rule of Law regardless of the canonical conception preferred. The methodology suggested provides a practical – theory agnostic – way to identify Rule of Law non-compliance beyond the concept’s inherent contestedness. (shrink)

"Philosophical Foundations of Evidence Law presents a cross-disciplinary overview of the core issues in the theory and methodology of adjudicative evidence and factfinding, assembling the major philosophical and interdisciplinary insights that define evidence theory, as related to law, in a single book. The volume presents contemporary debates on truth, knowledge, rational beliefs, proof, argumentation, explanation, coherence, probability, economics, psychology, bias, gender, and race. It covers different theoretical approaches to legal evidence, including the Bayesian approach, scenario theory, and inference to (...) the best explanation. The volume’s contributions come from scholars spread across three continents and twelve different countries, whose common interest is evidence theory as related to law"-- from publisher's website. (shrink)

The subject “rule”, which is one of the most fundamental issues of the Islamic legal theory (usūl al-fiqh), has been in the center of methodological debates. There is one important term in this regard, which should be studied very carefully: Khiṭāb(speech) of the God. It is because that, especially since the first period of Islam, it has been taken with some significant terms in the field of Kalāmsuch as Husn (pretty; good), Qubh (ugly; evil), and the quality of God’s talk. (...) Yet, adopting this term in the description of the “rule” shows that Fiqh is based on divine inspiration, and it also emphasizes that even though there are some differences in details, wisdom of human being is not ignored when adjudicating. Moreover, it suggests that the validity or methodological accuracy of the “rule” which is adjudicated with ruling case is related to the connection through the term speech or divine inspiration. In this regard, Kalāmdimension of the term and its affect to legal theoretical discussions are very important in terms of historical process of the definition of the “rule” in Islamic law. In this study, I tried to examine whether or not the term “khiṭābof the God” which is used in the definition of the “rule” formed a limitation for consideration of legal evidence in Islamic law and if there is any limitation for the legal evidence regarding being only in the Qur’ān and the Sunnah due to this definition.SummaryThe “hukm (rule, arbritation, judgment, God’s will)”-as the backbone notion in usūl al-fiqhis one of the significant key notions discussed in the legal theory. Specifically, the term “khitabullah” mentioned in the definition of hukmis noteworthy to investigate. Since the early formation period of Islamic law, the term khitabullahhas been embraced along with the theological subjects: “husnand qubuh(the good and evil) and kalām(the attribute of speech to Allah)”. The term “khitabullah” in the definition of hukmemphasizes that indeed the source of fiqhis the revelation (wahy) and also emphasizes that the function of reason (‘aql) is not ignored in the process of adjudication- even if there are some nuances in details.Additionally, it presents that the validity or methodological accuracy of the “rule” which is adjudicated with ruling a case is connected to the term speech (khitāb), or in other words to revelation (wahy).On the whole, in the legal theory, the rule of Sharī‘ah is defined as God’s khitab(the communication of God), which means the demand of God relating to the acts of those who are subject of law or the effect of the khitābon the acts of those persons. Although, in the early formative period various explanations were made about what the rule is, it can be understood that the present definition of hukmbegan to evolve towards the end of the 5thcentury (A. H.). It is clear that al-Ghazālī had an impact on the formation of this definition. It is because al-Ghazālī defined the rule of Sharī‘ahas “the communication from God relating to an act of the person who is the subject of law”. After al-Ghazālī, al-Rādī and al-Baydāwī added to al-Ghazālī’s definition the words “iqtidā and takhyīr” and Ibn Hājib added “wad‘an”. Whereas in the Mutakallimun(theologians) tradition, Ibn Hacib's definition was preferred, Fuqaha(jurists) tradition chose two definitions-resembling each other: “Those coming to exist with the khitāb” and “the effect of God’s khitāb”.Along with al-Ghazālī’s definition, the concept of khitābcarved out a niche for itself in it and became the main element of the definition. It is understood that some discussions in the field of theology, such as husn-qubhand God’s attribute of speech have been effective on the interpretation of the concept of khitāb. The Ash‘arilegal theorists argue that the good and evil are not attributes of the self / the acts, whereas the Maturidi legal theorists argue that the exploration and determination of these attributes is rational and thus, the verdict reached via this rationale is lawful. The Maturidi legal theorists initiated the concept of being subject of law with the concept Sharī‘ah and in the line with this opinion; they defined hukmon the basis of khitāb. On the other hand, the Mutazilites’ claiming the attribute of good and evil are inherent feature of the act, did not define hukmon the basis of the khitābaccording to their theological understanding. The word of khitābassessed with God’s eternal speech (al-kalām al-azalī) has been approached from various aspects: for instance, whether the presence of the addressee is mandatory. The early Asharites scholars (mutaqaddimun), in particular Imam Asharī, did not entitle the eternal speech as khitāb. They consider that the presence of the interlocutor is necessary in the conversion of Kalāminto khitāb. The mutaakhirunAsharites (successors of the early Asharites scholars) did not consider the presence of the interlocutor necessary, thus they viewed the eternal speech as khitāb. The former identification of the hukmwith khitābby the early Ashari legal theorists caused to the problem of whether hukmis adventitious or not. Therefore, this approach was criticised by the Mutazilites. On the other hand, the Maturidi and Mutezilite legal theorists accept that hukmis adventitious; hence they do not consider as a problem naming the eternal speech of God as khitāb.When the historical course is examined, it can be said that one of the important aspects of the development of hukm’s definition is the use of khitāb. Khitābin some cases is used without possessive construction, in other cases it is used with possessive construction with God, or in possessive construction with shar’ or Shāri’. The most important one within these possessive constructions is the notion “khitaballah”. Therefore, it is necessary for khitaballahto be approached from the angle of the legal theory. In comparison to other terms, this notion narrowed the scope of the rule down. In the meanwhile, it raised the question: how the rule deduced via legal evidences can be incorporated in khitāb? As a consequence of this question, some legal theorists, such as Tūfī, proposed another definition by adducing this question.Although it is commonly accepted that the rules deduced via other evidences are within the context of the khitāb, there are also different descriptions about the concept of khitaballah. The rule is not limited to khitaballahin the conception of traditional interpretation accepting the khitābas eternal speech or literal speech (al-kalām al-lafzī). Because either all evidences are within the context of the khitāb,which is the eternal speech or other evidences are within the context of the khitāb,which is the literal speech. Thus, each result coming to exist with the other evidences is part of the Islamic law. But not all of these rules are considered equal to each other. Because each rule which is deduced from indisputable origin (qatii al-thubut) and is deduced from completely explicit sources (qatii al-dalala) are accepted as the word of God or the Prophet. On the other hand, other rules deduced via jurisprudence- in other words by jurist’s own value of judgment is viewed as the virtual rule (al-hukm al-zāhir). Such rules do not express absolute certainty. It is unacceptable for these rules to be described as the word of God or the Prophet. In this way, it is clearly understood that the concept of khitaballahmentioned in the description do not introduce restriction to the evidences ofSharī‘ah.We do not see a contradiction when the indefinite rules of Islamic law included in the context of khitāb. Because ijtihāddoes not aim to produce a new rule, on the contrary it functions in order to find out the already existing rules. The legitimacy of the rule obtained through ijtihādemerges from the way that this rule is deduced from the khitāb,which directly or indirectly represents the divine will. In addition, according to us, this legitimacy is not merely limited to versification and conception of the khitāb, but it also includes the function of the reason in (reasonable of the) khitāb. As a matter of fact, trying to solve unlimited cases with limited texts is difficult- in fact this is impossible. The majority of the legal theorists also share this opinion. Then, there is no obstacle in accepting that each rule obtained by authentic source and methodology can be considered part of Islamic law by implicating the rule in the context of khitāb(which represents the divine will) - although it may contain error and presumption. (shrink)

Conceptualizing behavior decision theoretically as being ‘pulled’ (by an expected future) is fundamentally different from conceptualizing it as ‘pushed’ (or determined by past conditions according to causal laws). However, the fundamental distinction between teleological and non-teleological explanations not withstanding, decision-theoretic and evolutionary ‘ways of world making’ lead to strikingly similar forms of political, philosophical, and economic models. Common Hobbesian roots can account historically for the emergence of such a common ‘PPE’ outlook, while a game-theoretic framework of indirect evolution (...) can accommodate the fundamental methodological tension between teleological and non-teleological approaches or the ‘humanities’ and the ‘science’ traditions in PPE’s disciplines. (shrink)

A Treatise of Legal Philosophy and General Jurisprudence is the first-ever multivolume treatment of the issues in legal philosophy and general jurisprudence, from both a theoretical and a historical perspective. The work is aimed at jurists as well as legal and practical philosophers. Edited by the renowned theorist Enrico Pattaro and his team, this book is a classical reference work that would be of great interest to legal and practical philosophers as well as to jurists and legal scholar at all (...) levels. The work is divided in two parts. The theoretical part (published in 2005), consisting of five volumes, covers the main topics of the contemporary debate; the historical part, consisting of six volumes (Volumes 6-8 published in 2007; Volumes 9 and 10, published in 2009; Volume 11 published in 2011 and Volume 12 forthcoming in 2016), accounts for the development of legal thought from ancient Greek times through the twentieth century. Volume 12 Legal Philosophy in the Twentieth Century: The Civil Law World Volume 12 of A Treatise of Legal Philosophy and General Jurisprudence, titled Legal Philosophy in the Twentieth Century: The Civil-Law World, functions as a complement to Gerald Postema's volume 11 (titled Legal Philosophy in the Twentieth Century: The Common Law World), and it offers the first comprehensive account of the complex development that legal philosophy has undergone in continental Europe and Latin America since 1900. In this volume, leading international scholars from the different language areas making up the civil-law world give an account of the way legal philosophy has evolved in these areas in the 20th century, the outcome being an overall mosaic of civil-law legal philosophy in this arc of time. Further, specialists in the field describe the development that legal philosophy has undergone in the 20th century by focusing on three of its main subjects-namely, legal positivism, natural-law theory, and the theory of legal reasoning-and discussing the different conceptions that have been put forward under these labels. The layout of the volume is meant to frame historical analysis with a view to the contemporary theoretical debate, thus completing the Treatise in keeping with its overall methodological aim, namely, that of combining history and theory as a necessary means by which to provide a comprehensive account of jurisprudential thinking. (shrink)

It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule (...) of law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, the metaphysics/metasemantics of (legal) content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law. (shrink)

This paper explores methodological connections between the existentialist and natural law traditions, with particular emphasis on the writings of Jean-Paul Sartre and John Finnis. Existentialist approaches to phenomenology hold promise in illuminating the epistemological foundations of natural law accounts, especially those emphasising human self-fulfilment through practical choice. Some methodological challenges common to projects in the fields of existentialist ethics and natural law are discussed. It is suggested that an existentialist perspective holds potential in reinforcing contemporary natural law responses to (...) the so-called 'fact-value distinction'. Such an approach affords a promising methodological structure for investigating the pre-moral foundations for social judgements of ethical significance, thereby providing qualified support for the type of natural law theory advocated by Finnis. (shrink)

The notion of a properly functioning human nature as a moral standard is a tenet of Western culture and is at the core Western humanism, Christian moral teaching, and natural law theory. Although these traditions recognize that the virtue of justice is exercised by giving one’s neighbor his due, they did not explore a person’s legitimate claims to goods in a modern theory of human rights. Enlightenment thinkers, as materialists and atheists, theorized that human rights are not related to God (...) or human nature but are privileges granted by government. Jacques Maritain developed theories of natural law and human rights. Maritain’s theory of human rights, employing a Thomistic methodology and founded on God and nature, is applicable to contemporary disputes, such as claims to a right to “same-sex” marriage. (shrink)

Eschatology is the study of things that exist in life after death (akhirah). The law of studying eschatology is mandatory for every Muslim because its substance concerns the fifth pillar of faith, namely faith on judgment day. The concept and implementation of eschatology studies looked simply, but its impact is not small in daily life. Eschatology has lost its existence in modern science because the depth of its meaning has not been adequately revealed through research methodology. This research aims (...) to explore the substance and meaning of eschatology through a philosophy of science and methodology. The common thread between this research and previous research is that eschatology still boils down to evidence that the judgment day and the resurrection day do exist, and Allah is the only God of the universe. The main sources for writing these thematic studies are the Al-Qur’an and Al-Hadith texts. The research method is a qualitative method. The interdisciplinary study of the philosophy of science and methodology involves aspects like axiology, ontology, and epistemology. The result is that the depth of eschatology meaning has been comprehensively revealed. (shrink)

Since e-Commerce has become a discipline, e-Contracts are acknowledged as the tools that will assure the safety and robustness of the transactions. A typical e-Contract is a binding agreement between parties that creates relations and obligations. It consists of clauses that address specific tasks of the overall procedure which can be represented as workflows. Similarly to e-Contracts, Intelligent Agents manage a private policy, a set of rules representing requirements, obligations and restrictions, additionally to personal data that meet their user’s interests. (...) In this context, this study aims at proposing a policy-based e-Contract workflow management methodology that can be used by semantic web agents, since agents benefit from Semantic Web technologies for data and policy exchanges, such as RDF and RuleML that maximize interoperability among parties. Furthermore, this study presents the integration of the above methodology into a multi-agent knowledge-based framework in order to deal with issues related to rules exchange where no common syntax is used, since this framework provides reasoning services that assist agents in interpreting the exchanged policies. Finally, a B2C e-Commerce scenario is presented that demonstrates the added value of the approach. (shrink)

The paper addresses the integration of ethics into professional education related to the disciplines responsible for the conception and creation of the artificial (artefactual or technology). The ontological-epistemological paradigm of those disciplines is understood within the frame of the sciences of the artificial as established by Herbert Simon (1969). According to that paradigm, those sciences include disciplines not only related to the production of artefacts (technology), such as engineering, architecture, industrial design, etc, but also disciplines related to devised courses of (...) action aimed at changing existing situations into preferred ones, like medicine, law, education, etc. They are centered on intentional action and at their core is the activity of design, which is their common foundation and attitude, or their common culture. The science of design becomes the broader foundational discipline for any professions engaged in the intentional transformation of the world. The main distinction between design disciplines and scientific ones rests on the object-project dichotomy. Indeed, contrary to Science that sees the world as an object to be observed, Design sees the world as a project and acts upon the world through projects, which are grounded in intentions, ends, and values. Design disciplines are meant to transform the world, or part of it, and are teleological. Being so, they are embodied in an act that is ethical and their ontology-epistemology must be addressed also through practical reason to resituate all professional disciplines according to their involved nature. (shrink)

Quality improvement is an important function of learning health systems, and public policy should promote QI activities. Use of systematic methodologies in QI has prompted substantial confusion regarding when QI is human subjects research under the Common Rule, and this confusion persists with the revised Rule. Difficulty distinguishing research from QI imposes costs on the quality improvement process. I offer guidance to IRBs to mitigate these costs and suggest a new regulatory exclusion for minimal risk quality improvement activities.

Hogan argues that the basis of interpretive method is ordinary inferential reasoning - that there is no general methodological difference between interpretation in the humanities and theory construction in the physical sciences. Further, the nature of interpretation does not entail cultural, historical, or other forms of relativism, as is commonly thought. However, this does not imply that there is only one way of approaching interpretation or that there is one true meaning of any particular work. Rather, there are many kinds (...) of interpretation and many kinds of meaning and the interpreter is free to stipulate one of these in the context of a particular enquiry. More exactly, discussing the constraints upon stipulation, Hogan says that, although there are a large number and variety of intents (those of authors and readers, conscious and unconscious), there are no nonintentional meanings - Platonic, social, essential, or otherwise. (shrink)

(1) In the first part of this paper, I review Chomsky's meandering journey from the formalism/mentalism of Syntactic Structures, through several methodological positions, to the minimalist theory of his latest work. Infected with mentalism from first to last, each and every position vitiates Chomsky's repeated claims that his theories will provide useful guidance to later theories in such fields as cognitive psychology and cognitive neuroscience. With the guidance of his insights, he claims, psychologists and neuroscientists will be able to avoid (...) costly dead-end lines of research. -/- (2) This never happened. As I have shown, this never could have happened. (See Johnston, 2018). What has happened, instead, is that current neurolinguistic research (with the arguable exception of the now-dated Lemma Model of Willem Levelt) proceeds without reference to Chomsky. It also wholeheartedly rejects the mentalism of the associated Language of Thought theory of Jerry Fodor. (See Johnston, 2018). -/- (3) I make this argument in the first part of this paper. I would also like to point out that most of my argument was developed in 1972, when I was a graduate student. I know of no other sustained criticisms of Chomsky at that time, and certainly none along the lines I had developed back then. -/- (4) In the second part of this paper, I present my own account of the methodology of science. When I was a graduate student, philosophy of science was dominated by an attempt to describe a methodology common to all the specific sciences, i.e. Hempel’s deductive-nomological model. These days, Hempel’s emphasis on the methodological unity of science has been rejected by such “dis-unity” philosophers of science as Ian Hacking, Patrick Suppes and Nancy Cartwright (see Cat, 2021). -/- (5) I view this change as the swing of a pendulum or, to change the metaphor, a journey from one end point of a continuum to another. As the level of abstraction at which one tries to describe scientific method is raised, the descriptions become increasingly general. Whether or not unity-of-science theories become so general as to be vacuous, is ultimately a subjective judgment. And so I expect that philosophers will eventually become tired of increasingly specific “close to the workbench” descriptions of how scientists work, and begin to turn back to methodological “big pictures”, finding in them powerful abstractions rather than empty irrelevancies. -/- (6) In the second part of this paper, I present my own account of the methodology of science, which I would situate somewhere between the “unity” and “dis-unity” accounts. However, I am not a scientist. My own views about scientific method have three origins: -/- (6a) my work as a graduate student from 1966 until I passed my comprehensive exams in 1973 (at a different university); -/- (6b) reading every issue of Scientific American from 1972 until nearly 2000, (at which point I continued to read it only sporadically, since I concluded that, around that time, it had evolved from a serious science magazine to a popular science magazine); and -/- (6c) my three-year immersion in the cognitive neuroscience of language after I retired, based on repeated study of and note-taking for (Banesh & Compton, 2018), (Kemmerer, 2015), several other books and, finally, numerous articles not hidden behind a paywall. -/- So, as always with my writings: caveat emptor. (shrink)

ABSTRACT The individual-community relationship has always been one of the most fundamental topics of social sciences. In sociology, this is known as the micro-macro relationship while in economics it refers to the processes, through which, individual actions lead to macroeconomic phenomena. Based on philosophical discourse and systems theory, many sociologists even use the term "emergence" in their understanding of micro-macro relationship, which refers to collective phenomena that are created by the cooperation of individuals, but cannot be reduced to individual actions. (...) "Emergence" theories attempt to explain the nature of society as a complex system by examining how individuals and their relationships lead to the creation of integrated and macro-social phenomena such as markets, educational systems, cultural beliefs, and shared social practices. As a prelude to activity, every researcher has to answer the question from the methodological point of view, how is it possible to study the behavior of social groups and how can we gain knowledge about the laws related to social groups? Anyone who deals with humanities and social sciences or any reality and phenomenon that affects human beings, inevitably deals with the reality that is emerging. In fact, emergence occurs when one level of reality emerges radically from another level. Examples of emergent levels of reality include how the mind emerges from the body; or the way society emerges from human beings. Therefore, when there is an emerging factor, different scientific disciplines should be used, because it is inevitable to talk about social affairs, psychology and neurobiology, as well as physical and even chemical. -/- INTRODUCTION Since its beginning in the 19th century, sociology has faced the fundamental question of what a social phenomena stands for? At a glance, sociologists deal with the study of social groups, collective behavior, institutions, social structures, social networks, and social dynamics, and ultimately all such phenomena are composed of individuals. Therefore, social phenomena seem to have no independent ontological status, and in this case, sociology is ultimately about reducible individuals. Different approaches about the micro-macro relationship, using the concept of "emergence", argue that although collective phenomena are created by individuals, they cannot be reduced to individual action. The term "emergence" is used to distinguish "emergent results" from " Procedural results". Results are called Procedural that can only be calculated by adding or subtracting the causes that act together. On the contrary, they are emergent outcomes that are qualitatively novel compared to the causes from which they originate. An example of such emergent results is mental characteristics that emerge from neural processes, but are not considered among the characteristics of neural processes of components - which are their origin. Philosophical debates about emergentism and reductionism focus on the mind-brain relationship, but as many philosophers have noted, they can be generalized to apply to any hierarchical set of features. The cognitive revolution reactivated a 19th century controversy between theorists of Identity and dualism. The theorists of Identity believe in reductionist materialism and elimination of metaphysics, according to which the mind is nothing more than the biological, while the dualists believe that the mind and the brain are distinct from each other. Emergence has been considered as a third way between the theories of Identity and dualism. -/- METHODOLOGY Interdisciplinarity Is fundamentally indicated by the dominance of open systems as well as social and emerging systems at different levels. Therefore, as long as we are facing a new emergentism, there will necessarily be different fields and an interdisciplinary method. The commonality of social sciences and cognitive sciences on the issue of emergence provides the possibility of interaction and exchange of concepts between these two for deeper research. Therefore, in this research, apart from the concepts of Subvenience and downward causation, we have used multiple realization and wildly disjunctive, which are used to explain the emerging concept in cognitive sciences, including neurobiology, psychology, and philosophy. For analytical and interdisciplinary approaches, after examining the concepts of subvenience, and wildly disjunctive, Individualistic and collectivist emergentism have been reviewed. And then their adequacy is criticized and evaluated in meeting strong emergence conditions. -/- FINDINGS Philosophers of the mind have been able to define the conditions of irreducibility and downward causation, which are essential for strong emergence, by using the principle of subvenience with the help of multiple realization and wildly disjunctive principles. Therefore, by definition, emergentist individualism suffers from the problem of how to explain downward causality and irreducibility, and emergentist collectivism faces the challenge of reification. The analysis of the challenges facing the two methodological approaches of individualism and collectivism leads us to three unresolved issues about the emerging phenomenon, which are realism, downward causality, and mechanism. Despite the differences in the stances of these two approaches regarding the aforementioned triple problems, individualists and collectivists both agree that some social characteristics are reducible; and some others are irreducible due to their complexity, the determination of which, depends on the case study of the mechanism of emergence of each social characteristic. -/- CONCLUSION An emergence that is consistent with reductionism is called a weak emergence. And strong emergence includes the principle of irreducibility and downward causality. According to strong emergence, the characteristics of social phenomena have downward causal power, which cannot be reduced to the causal forces. The principle of subvenience, together with multiple realization and wildly disjunctive, can provide the conditions of irreducibility and downward causality, which are essential conditions of strong emergence. Based on the philosophical analysis of two methodological approaches, individualist and collectivist, it can be concluded that emergentist individualism suffers from the problem of how to explain downward causality and irreducibility, and reification collectivism faces the challenge of reification. The analysis of the problems faced by these two approaches leads us to three unresolved issues, which are realism, downward causality, and mechanism. individualist emergentists acknowledge the existence of emergent social characteristics, but despite this, they believe that these characteristics are not real but merely analytical constructs that require explanation based on individuals and their mutual actions. But collectivists argue that emergentism yields a categorical ontology and supports social realism. They accept the dependence of social characteristics on individuals, but claim that social entities and structures are ontologically independent. Individualists and collectivists both agree that some social characteristics are reducible; and others are irreducible due to their complexity; and the only way to recognize this is to engage in empirical studies of the mechanisms and temporal processes of "emergence" that create social characteristics. -/- NOVELTY The newness of this compact article is as follows: a) Presenting an interdisciplinary approach using the analysis of philosophy of cognitive sciences, including the philosophy of mind, neurobiology and psychology to formulate the issue of social emergence; b) Criticizing individualist and collectivist methodological approaches to the issue of social emergence and explaining the sufficiency and shortcomings of both in providing weak and strong emerging conditions; c) Explaining and categorizing the challenges facing methodological approaches in explaining the phenomenon of social emergence, in three categories: realism, downward causality, and mechanism. BIBLIOGRAPHY Beckermann, A., Flohr, H., & Kim, J. (eds.) (1992). Emergence or reduction? Essays on the prospects of nonreductive physicalism. Berlin: Walter de Gruyter. Bhaskar, R. (1979). The possibility of Naturalism. New York: Routledge. Bhaskar, R., Danermark, B. & Price, L. (2018). Interdisciplinarity and wellbeing: A critical realist general theory of interdisciplinarity. London and New York: Routledge. Blau, P.M. (1981). Introduction: diverse views of social structure and their common denominator. In Blau, P.M. & Merton, R.K. (eds.), Continuity in Structural Inquiry (pp. 1–23). Beverly Hills: Sage. Blau, P.M. (1987). Microprocess and macrostructure. In K.S. Cook (ed.), Social Exchange Theory (pp. 83–100). Newbury Park, CA: Sage. Brooks, R.A., & Maes, P. (eds). (1994). Artificial life IV; proceedings of the Fourth International Workshop on the Synthesis and Simulation of Living Systems. Cambridge, Mass: MIT Press. Clark, A. (1997). Being there: Putting brain, body, and world together again. Cambridge, Mass.: MIT Press. Coleman, J. S. (1987). Microfoundations and macrosocial behavior. In: J. C. Alexander, B. Giesen, R. Munch, & Neil J. Smelser (Eds.). The Micro-Macro Link (pp. 153–73). Berkeley: University of California. Coleman, J. S. (1990). Foundations of social theory. Cambridge, MA: Harvard University Press. Elster, J. (1985). Making sense of Marx. New York: Cambridge University Press. Fodor, J.A. (1974). Special sciences (Or: The disunity of science as a working hypothesis). Synthese, 28(2), 97–115. Fodor, J.A. (1989). Making mind matter more. Philosophical Topics, 17, 59-79. Giddens, A. (1984). The constitution of society: Outline of the theory of structuration. Berkeley: University of California Press. Hempel, C.G. (1965). Aspects of scientific explanation and other essays in the philosophy of science. New York: The Free Press. Horgan, T. (1993). From supervenience to superdupervenience: meeting the demands of a material world. Mind, 102, 555-586. Humphreys, P. (1997). How properties emerge”. Philosophy of Science, 64, 1-17. Kim, J. (1999). Making sense of emergence. Philosophical Studies, 95, 3–36. Kincaid, H. (1997). Individualism and the unity of science. New York: Rowman & Littlefield. Lewis, D.K. (1986). The plurality of worlds. Oxford: Oxford University Press. Nigel, G., & Conte, R. (eds.) (1995). Artificial societies; The computer simulation of social life. London: UCL Press. O’Connor, T. (1994). Emergent properties. American Philosophical Quarterly, 31, 91-104. Popper, K.R. (1968). Conjectures and refutations: The Growth of Scientific Knowledge. New York: Harper & Row. Sawyer, R. K. (2001). Emergence in sociology: contemporary philosophy of mind and some implications for sociological theory. American Journal of Sociology, 107, 551-585. Sawyer, R. K. (2004). The mechanisms of emergence. Philosophy of the Social Sciences, 34, 260–282. Sawyer, R. K. (2005). Social emergence: societies as complex systems. Cambridge: Cambridge University Press. Sawyer, R.K. (2003). Nonreductive individualism: Part 2, Social causation. Philosophy of the Social Sciences, 33, 203–224. Winch, P. (1993). The idea of a social science and its relation to philosophy‭ (SAMT, Trans.). Tehran, Iran: SAMT. (shrink)

However little that various disciplines in the humanities and social sciences might seem to have in common, they share certain interests in methodological problems relating to evidence, inference, and interpretation. By pursuing these shared interests across divergent topics and fields, the contributors to this book advance our understanding of how such truth-seeking, proof-finding methods work, and of what it means to prove something in a range of contexts. Coedited by William Twining, one of the world's outstanding evidence scholars, and (...) Lain HempsherMonk, a leading political theorist, the volume considers intriguing questions from different realms--Assyriology, theatre iconography, musicology, criminology, the history of ideas and colonial history--as it reveals how particular concepts, lines of questioning, and techniques of reasoning and analysis developed in one context can be fruitfully applied in others. (shrink)

Since Herbert Hart’s “fresh start” encouraged us to interpret legal and political phenomena from an “internal point of view,” and Lon Fuller pointed out the severe constraints upon a conceptually viable construction of this view, jurisprudence has had little choice but to become, methodologically speaking, genuinely and critically sociological. By this, we mean that in breaking with the common-sensical half-truths which produced the imperative or command theory of law, the conceptual problem of modelling the practical rationale of the legal (...) enterprise for the purposes of a general description of the phenomenon as subject matter, has become central and acute. In the past 20 years or so, the sociological awareness of the need to transcend the flux of empirical subjectivity, as well as important recent reinterpretations of the tradition of Natural Law, does seem to put jurisprudence within striking distance of achieving a mature status of integration with the methodology of the social sciences; not merely as some adjunct to, or opportunity for, empirically oriented “social studies,” but, as the source of a genuine epistemological synthesis in the approach to the problem of conceptualising the very subject matter of social science, namely, social action at the institutional level. In terms of concept formation this has gone some way towards the rehabilitation of the idea of “essential” or “focal” viewpoints in contrast to the enthusiasm for the contingencies and relativity of historical, linguistic and cultural conventionalisms. (shrink)

The issue of reciprocal relationships between the logic of law, positivistic theory of the logic of law, and legal semiotics is among the most important questionsof the modern theoretical jurisprudence. This paper has not attempted to provide any comprehensive account of the modern jurisprudence (and legal logic).Instead, the emphasis has been laid on those aspects of positivist legal theories, logical studies of law and legal semiotics that allow tracing the common pointsor the differences between these paradigms of legal research. (...) One of the theses of the present work is that, at the comparative methodological level, the limits oflegal semiotics and its object of inquiry could only be defined in relation to legal positivism and logical studies of law. This paper also argues for a proper positionfor legal semiotics in between legal positivism and legal logic. The differences between legal positivism, legal logic and legal semiotics are best captured in theissue of referent. (shrink)

In criminal proceedings, offenders are sentenced based on doctrines of culpability and punishment that theorize why they are guilty and why they should be punished. Throughout human history, these doctrines have largely been grounded in legal-policy constructions around retribution, safety, deterrence, and closure, mostly derived from folk psychology, natural philosophy, sociocultural expectations, public-order narratives, and common sense. On these premises, justice systems have long been designed to account for crimes and their underlying intent, with experience and probabilistic assumptions shaping (...) theoretical discourses on the nature of crimes and offenders’ punishability. As scientific discoveries, inventions, and methodologies progressively developed to refine such doctrines and displace long-held assumptions, criminal courtrooms have increasingly witnessed counsels and judges relying on scientific evidence to submit, dispute, or validate claims. For instance, over the last century, criminal courtrooms have selectively admitted neuroscientific models, exams, and insights claiming to revolutionize our understanding of who is culpable and deserving of punishment. Most recently, advancements in epigenetics have promised even more profound challenges to long-standing criminal law doctrines. This article examines the reasons reversibility and inheritability of epigenetic markers might warrant revising culpability and punishment and concludes that epigenetic findings are not yet robust enough to justify such revisions. (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)

Professor Carrese's constructive and insightful critique of my article ‘Ancients, Moderns and Americans: The Republicanism-Liberalism Revisited’ raises four points of disagreement between us. These include, first, Carrese's contention that I have improperly ignored the influence of Montesquieu's political thought, Protestant Christianity, and classic common-law thinking on the political thought of the American Founders; second, the question of how far the Founders sought to develop the moral character of the citizenry directly through constitutions and laws, especially acts designed to promote (...) religious belief; and third, Carrese's argument that scholars should not follow Rogers Smith in tracing out the role of illiberal ideologies in the American Founding. Finally, in addition to disagreeing about these substantive issues, Carrese and I also disagree about the methodological question of how the study of the political thought of the American Founders should be conducted. Let us consider each of these points in turn. (shrink)