One approach to legal theory is to provide some sort of rational reconstruction of all or of a large body of the common law. For philosophers of law this has usually meant trying to rationalize a body of law under one or another principle of justice. This paper explores the efforts of the leading tort theorists to provide a moral basis — for the law of torts. The paper is divided into two parts. In the first part I consider and (...) reject the view that tort law is best understood as falling either within the ambit of the principle of retributive justice, a comprehensive theory of moral responsibility, or an ideal of fairness inherent in the idea that one should impose on others only those risks others impose on one. The second part of the paper distinguishes among various conceptions of corrective or compensatory justice and considers arguments — including previous arguments by the author himself — to the effect that tort law is best understood as rooted in principles of corrective justice. This paper argues that although the use of principles of justice may render defensible many (but by no means all) of the claims to repair and to liability recognized in torts, it cannot explain why we have adopted a tort system as the approach to vindicating those claims. Some other principle — probably not one of justice — is needed to explain why it is that the victims claims to repair is satisfied by having his losses shifted to his injurer — rather than through some other means of doing so. The paper concludes that the law of torts cannot be understood — in the sense of being given a rational reconstruction — under any one principle of morality. (shrink)

Suppose the prevailing distribution of property rights is unjust as determined by the relevant conception of distributive justice. You have far more than you should have under that theory and I have far less. Then I defraud you and in doing so reallocate resources so that our holdings ex post more closely approximate what distributive justice requires. Do I have a duty to return the property to you? There are many good reasons for requiring me to return to you what (...) I have taken. One is that while you may have no right in justice to all that you own, it does not follow that I do, or that I have a right to take it. Thus, requiring me to return the property to you is a way of recognizing that I had no right to take it from you in the first place. (shrink)

With the development of the division of labor, the household has declined in importance as a unit of economic production. Yet even as the individual wage earner has assumed a central place in modern exchange economies, the household has still been seen as an important unit of distribution, in which wage earners provide for their non-income-producing family members. With the breakdown of the family in recent decades, however, the communal income-sharing function of the family has, in significant part, been taken (...) overby the state. In this essay, I examine this fundamental change in the structure of production and distribution in modern exchange economies. Going beyond this, I propose a new structure of markets–markets for rights to influence collective decision-making within a society. Such markets, I suggest, wouldprovide a source of income for each member of the society. (shrink)

This essay is part of a larger project exploring the extent to which the market paradigm might be usefully employed to explain and in some instances justify nonmarket institutions. The focus of the market paradigm in this essay is the relationship between the idea of a perfectly competitive market and aspects of both the rationality of political association and the theory of collective choice. In particular, this essay seeks to identify what connections, if any, exist between one kind of market (...) account of the rationality of political association and one kind of market-based social choice rule. The market theory of political association I intend to discuss I call “market contractarianism,” and the collective choice rule whose relation to it I intend to explore is the unanimity rule. What, if anything, is the relationship between market contractarianism and the unanimity rule? (shrink)

Taking their motivation from the perceived failure of the reductive physicalist project concerning consciousness, panpsychists ascribe subjectivity to fundamental material entities in order to account for macro-consciousness. But there exists an unresolved tension within the mainstream panpsychist position, the seriousness of which has yet to be appreciated. I capture this tension as a dilemma, and offer advice to panpsychists on how to resolve it. The dilemma is as follows: Panpsychists take the micro-material realm to feature phenomenal properties, plus micro-subjects to (...) whom these properties belong. However, it is impossible to explain the generation of a macro-subject (like one of us) in terms of the assembly of micro-subjects, for, as I show, subjects cannot combine. Therefore the panpsychist explanatory project is derailed by the insistence that the world’s ultimate material constituents are subjects of experience. The panpsychist faces a choice of giving up her explanatory ambitions, or of giving up the claim that the ultimates are subjects. I argue that the latter option is preferable, leading to neutral monism, on which phenomenal qualities are irreducible but subjects are reducible. So panpsychists should be neutral monists. (shrink)

Jules Coleman, one of the world's most influential philosophers of law, here expounds his recent views on a range of important issues in legal theory. Coleman offers for the first time an explicit account of the pragmatist method that has long informed his work, and takes on the views of highly respected contemporaries such as Ronald Dworkin and Joseph Raz.

This book by one of America's preeminent legal theorists is concerned with the conflict between the goals of justice and economic efficiency in the allocation of risk, especially risk pertaining to safety. The author approaches his subject from the premise that the market is central to liberal political, moral, and legal theory. In the first part of the book, he rejects traditional "rational choice" liberalism in favor of the view that the market operates as a rational way of fostering stable (...) relationships and institutions within communities of individuals with broadly divergent conceptions of the good. However, markets are needed most where they are most difficult to create and sustain, and one way to understand contract law in liberal legal theory, according to Professor Coleman, is as an institution designed to reduce uncertainty and thereby make markets possible. Another target of this book is the prevalent view that tort law helps rectify market failures when transaction costs are too high to permit contracting. The author argues instead that tort law should be understood as a way of rectifying wrongful losses not inefficient exchanges. (shrink)

Panpsychism, an increasingly popular competitor to physicalism as a theory of mind, faces a famous difficulty, the ‘combination problem’. This is the difficulty of understanding the composition of a conscious mind by parts which are themselves taken to be phenomenally qualitied. I examine the combination problem, and I attempt to solve it. There are a few distinct difficulties under the banner of ‘the combination problem’, and not all of them need worry panpsychists. After homing in on the genuine worries, I (...) identify some disputable assumptions that underlie them. Doing away with these assumptions allows us to make a start on a working conception of phenomenal combination. (shrink)

Notwithstanding its phenomenological appeal, physicalists have tended to shun the notion that we are ‘acquainted’ with our mental states in consciousness, due to the fact that the acquaintance relation seems mysterious, irreducible, and consequently unnatural. I propose a model of conscious experience based on the idea of ‘mental quotation’, and argue that this captures what we want from acquaintance but without any threat to naturalism. More generally the chapter embodies a complaint that reductionists seem unable to look past the representation (...) relation to do the implementing of consciousness, and a call for theorists to investigate other relations to model our connection to our conscious states, like the constitution/part-whole relationship. This mundane relation has what it takes to give us natural acquaintance with our conscious-mental states. (shrink)

Who are computer hackers? What is free software? And what does the emergence of a community dedicated to the production of free and open source software--and to hacking as a technical, aesthetic, and moral project--reveal about the values of contemporary liberalism? Exploring the rise and political significance of the free and open source software movement in the United States and Europe, Coding Freedom details the ethics behind hackers' devotion to F/OSS, the social codes that guide its production, and the political (...) struggles through which hackers question the scope and direction of copyright and patent law. In telling the story of the F/OSS movement, the book unfolds a broader narrative involving computing, the politics of access, and intellectual property. E. Gabriella Coleman tracks the ways in which hackers collaborate and examines passionate manifestos, hacker humor, free software project governance, and festive hacker conferences. Looking at the ways that hackers sustain their productive freedom, Coleman shows that these activists, driven by a commitment to their work, reformulate key ideals including free speech, transparency, and meritocracy, and refuse restrictive intellectual protections. Coleman demonstrates how hacking, so often marginalized or misunderstood, sheds light on the continuing relevance of liberalism in online collaboration. (shrink)

Due to their reliance on constitutive higher-order representing to generate the qualities of which the subject is consciously aware, I argue that the major existing higher-order representational theories of consciousness insulate us from our first-order sensory states. In fact on these views we are never properly conscious of our sensory states at all. In their place I offer a new higher-order theory of consciousness, with a view to making us suitably intimate with our sensory states in experience. This theory relies (...) on the idea of ‘quoting’ sensory qualities, so is dubbed the ‘quotational higher-order thought theory’. I argue that it can capture something of the idea that we are ‘acquainted’ with our conscious states without slipping beyond the pale for naturalists, whilst also providing satisfying treatments of traditional problems for higher-order theories concerning representational mismatch. The theory achieves this by abandoning a representational mechanism for mental intentionality, in favour of one based on ‘embedding’. (shrink)

This book brings together international academics from a range of Social Science and Humanities disciplines to reflect on how Deleuze's philosophy is opening up and shaping methodologies and practices of empirical research.

BackgroundCountries are increasingly devoting significant resources to creating or strengthening research ethics committees, but there has been insufficient attention to assessing whether these committees are actually improving the protection of human research participants.DiscussionResearch ethics committees face numerous obstacles to achieving their goal of improving research participant protection. These include the inherently amorphous nature of ethics review, the tendency of regulatory systems to encourage a focus on form over substance, financial and resource constraints, and conflicts of interest. Auditing and accreditation programs (...) can improve the quality of ethics review by encouraging the development of standardized policies and procedures, promoting a common base of knowledge, and enhancing the status of research ethics committees within their own institutions. However, these mechanisms focus largely on questions of structure and process and are therefore incapable of answering many critical questions about ethics committees' actual impact on research practices.The first step in determining whether research ethics committees are achieving their intended function is to identify what prospective research participants and their communities hope to get out of the ethics review process. Answers to this question can help guide the development of effective outcomes assessment measures. It is also important to determine whether research ethics committees' guidance to investigators is actually being followed. Finally, the information developed through outcomes assessment must be disseminated to key decision-makers and incorporated into practice. This article offers concrete suggestions for achieving these goals.ConclusionOutcomes assessment of research ethics committees should address the following questions: First, does research ethics committee review improve participants' understanding of the risks and potential benefits of studies? Second, does the process affect prospective participants' decisions about whether to participate in research? Third, does it change participants' subjective experiences in studies or their attitudes about research? Fourth, does it reduce the riskiness of research? Fifth, does it result in more research responsive to the local community's self-identified needs? Sixth, is research ethics committees' guidance to researchers actually being followed? (shrink)

One of the first volumes in the new series of prestigious Oxford Handbooks, The Oxford Handbook of Jurisprudence and Philosophy of Law brings together specially commissioned essays by twenty-six of the foremost legal theorists currently writing, to provide a state of the art overview of jurisprudential scholarship.

This chapter contains sections titled: Jurisprudence: Method and Subject Matter Legality and Authority Positivism: Austin vs. Hart The Authority of Law Judicial Discretion Incorporationism and Legality Raz' s Theory of Authority Incorporationism and Authority Conclusion Postscript References.

What should advocates of phenomenal intentionality say about unconscious intentional states? I approach this question by focusing on a recent debate between Tim Crane and David Pitt, about the nature of belief. Crane argues that beliefs are never conscious. Pitt, concerned that the phenomenal intentionality thesis coupled with a commitment to beliefs as essentially unconscious embroils Crane in positing unconscious phenomenology, counter-argues that beliefs are essentially conscious. I examine and rebut Crane’s arguments for the essential unconsciousness of beliefs, some of (...) which are widely endorsed. On the way I sketch a model of how belief states could participate in the stream of consciousness. I then consider Pitt’s position, arguing in reply, along Freudian lines, that we should posit not just dispositional but occurrent unconscious beliefs. This result, I argue, indeed requires advocates of phenomenal intentionality to posit unconscious qualia to fix these unconscious occurrent thoughts, and I defend the coherence of the notion of unconscious qualia against some common attacks. Ultimately, I claim, the combination of taking seriously the occurrent unconscious, and a commitment to phenomenal intentionality, should lead us to expand William James’s conception of the stream of consciousness to encompass, additionally, a stream of unconscious mental life—or, perhaps better, to posit a single partly conscious partly unconscious qualia-stream of mental goings-on. (shrink)

The Postscript to The Concept of Law contains Herbert Hart's only sustained and considered response to the objections pressed against his views by his distinguished critic, Ronald Dworkin. In this extraordinary collection, many of the leading legal philosophers in the world evaluate the success of Hart's responses to Dworkin on several of these counts. Notable contributors include Joseph Raz of Oxford University and Jules L. Coleman of the Yale Law School.

In this paper I first examine two important assumptions underlying the argument that physicalism entails panpsychism. These need unearthing because opponents in the literature distinguish themselves from Strawson in the main by rejecting one or the other. Once they have been stated, and something has been said about the positions that reject them, the onus of argument becomes clear: the assumptions require careful defence. I believe they are true, in fact, but their defence is a large project that cannot begin (...) here. So, in the final section I comment on what follows if they are granted. I agree with Strawson that --broadly -- 'panpsychism' is the direction in which philosophy of mind should be heading; nevertheless, there are certain difficulties in the detail of his position. In light of these I argue for changes to the doctrine, bringing it into line with the slightly. (shrink)

Next SectionIn emphasizing the importance of the separability thesis, legal philosophers have inadequately appreciated other philosophically important ways in which law and morality are or might be connected with one another. In this article, I argue that the separability thesis cannot shoulder the philosophical burdens that it has been asked to bear. I then turn to two issues of greater importance to jurisprudence. These are ‘the moral semantics of law’ and ‘the normativity of theory construction in jurisprudence’. The moral semantics (...) claim is that legal content is best understood as moral directives about what is to be done and who is to decide what is to be done. The problem is that legal positivists typically hold that only social facts contribute to the content of law, and it is hard to see how a positivist can hold both the social-facts claim and the moral-semantics claim. I argue that not only are the two claims consistent with one another, but that legal positivists must hold some version of the moral semantics claim if they are to make sense of the claim that legal reasons purport to be content-independent moral reasons for acting. In Section 3 of the article, I take up the question of whether theory construction in jurisprudence is normative or descriptive. This is hard to do in part because so little attention has been paid to correctly formulating the issue. I suggest a demanding test for descriptivism; namely, that an adequate analysis of law can be provided entirely in terms of its formal features. I then defend this claim against three arguments designed to show because governance by law is necessarily desirable or valuable that, we cannot characterize law without making reference to those values or to other material features of law. This constitutes a limited but powerful defence of descriptive jurisprudence. (shrink)

The concept of vulnerability has long played a central role in discussions of research ethics. In addition to its rhetorical use, vulnerability has become a term of art in U.S. and international research regulations and guidelines, many of which contain specific provisions applicable to research with vulnerable subjects. Yet, despite the frequency with which the term vulnerability is used, little consensus exists on what it actually means in the context of human subject protection or, more importantly, on how a finding (...) of vulnerability should affect the process of research ethics review.The Common Rule, the centerpiece of the U.S. human subject protection regulations, uses the word vulnerable three times. First, it provides that institutional review boards that regularly review research involving a vulnerable category of subjects should consider including one or more individuals who are knowledgeable about and experienced in working with these subjects. (shrink)

Frank Jackson's knowledge argument imagines a super-smart scientist, Mary, forced to investigate the mysteries of human colour vision using only black and white resources. Can she work out what it is like to see red from brain-science and physics alone? The argument says no: Mary will only really learn what red looks like when she actually sees it. Something is therefore missing from the science of the mind, and from the 'physicalist' picture of the world based on science. This powerful (...) and controversial argument remains as pivotal as when it was first created in 1982, and this volume provides a thorough and incisive examination of its relevance in philosophy of mind today. The cutting-edge essays featured here break new ground in the debate, and also comprehensively set out the developments in the story of the knowledge argument so far, tracing its impact, past, present, and future. (shrink)

In “Constitutivism without Normative Thresholds,” Kathryn Lindeman raises two objections to what she aptly calls Threshold Constitutivism. My aim in this short discussion is to respond to her first objection. Although I will argue that this objection fails, I will also argue that thinking through how to respond to it reminds us of something important, namely, that many of the Norm-Governed Kinds that are directly related to intentional action are social kinds, that is, kinds whose existence conditions we ourselves collectively (...) write. Everyone, whether constitutivist or not, needs to think seriously about what those existence conditions should be. [1] Journal of Ethics and Social Policy 12 (3): 231-258 (2017). [2] Lindeman’s second objection depends on her view, which I do not share, that “Normative Constitutivism has ambitions to be an explanatory strategy for norms in general” (238, my emphasis). (shrink)

We explore the relationship between jurisprudential theories pertaining to the nature of law and semantic and metasemantic theories pertaining to the meaning of ‘law’ in the wake of Dworkin’s notorious Semantic Sting argument in Law’s Empire (HUP 1986). Along the way we delineate various aspects of the semantic and metasemantic underpinnings of ‘law’ as an artifact term and advance the general methodological point that jurisprudential inquiry is only negligibly constrained by the findings of semantic and metasemantic inquiry.

H.L.A. Hart'sThe Concept of Lawis the most important and influential book in the legal positivist tradition. Though its importance is undisputed, there is a good deal less consensus regarding its core commitments, both methodological and substantive. With the exception of an occasional essay, Hart neither further developed nor revised his position beyond the argument of the book. The burden of shaping the prevailing understanding of his views, therefore, has fallen to others: notably, Joseph Raz among positivists, and Ronald Dworkin among (...) positivism's critics. Dworkin, in particular, has framed, then reframed, the conventional understanding, not only of Hart's positivism, but of the terms of the debate between positivists and him. While standing on the sidelines, Hart witnessed the unfolding of not only a lively debate between positivists and Dworkin, but an equally intense one among positivists as to positivism's (and his) core claims. The most important debate has been between so-called inclusive and exclusive positivists: a debate as much about Hart's legacy as about the proper interpretation of legal positivism. (shrink)

Panpsychism is an eminently sensible view of the world and its relation to mind. If God is a metaphysician, and regardless of the actual truth or falsity of panpsychism, it is certain that he regards the theory as an honest and elegant competitor on the field of ontologies. And if God didn’t create a panpsychist world, then there’s a fair chance that he wishes he had done so, or will do next time around. The difficulties panpsychism faces, then, are not (...) metaphysical ones. They are, instead, difficulties of understanding, and of acceptance by philosophers. The main difficulty of this sort the theory faces is that its ontology – with consciousness in some sense at the heart of all that exists1 – is deemed too bizarre, frankly, too humano-centric to be taken seriously. Why should anyone think that consciousness, widely held to be the preserve only of ourselves, plus the most recently evolved organisms, infuses the basement level of all existence? Such a thought seems to many – especially, to scientifically scrupled philosophers of mind – a narcissistic (or at best hopelessly anti-realist) folly, which doesn’t even deserve its day in court. Panpsychism.. (shrink)

There is no Argument that the Mind Extends On the basis of two argumentative examples plus their 'parity principle', Clark and Chalmers argue that mental states like beliefs can extend into the environment. I raise two problems for the argument. The first problem is that it is more difficult than Clark and Chalmers think to set up the Tetris example so that application of the parity principle might render it a case of extended mind. The second problem is that, even (...) when appropriate versions of the argumentative examples can be constructed, the availability of a second, internalist parity principle precludes the possibility of inferring that the mind extends. Choosing which parity principle we ought to wield would involve deciding beforehand whether or not the mind can extend. Thus Clark and Chalmers beg the question by employing their parity principle rather than the internalist one. I conclude that they fail to provide a proper argument to support the extended mind thesis. (shrink)

Reactive emotion accounts hold that blameworthiness should be analyzed in terms of the familiar reactive emotions. However, despite the attractions of such views, we are not persuaded that blameworthiness is ultimately a matter of correctly felt reactive emotion. In this paper, we draw attention to a range of little-discussed considerations involving the moral significance of the passage of time that drive a wedge between blameworthiness and the reactive emotions: the appropriateness of the reactive emotions is sensitive to the passage of (...) time in ways that attributions of blameworthiness are not. There are a number of ways in which reactive emotion accounts might attempt to accommodate the moral significance of time, however. We consider the most important of these, but ultimately find them wanting. Accordingly, we conclude that the prospects for the reactive emotion accounts are bleak. Our argument, if successful, has a range of implications for legal theory, most importantly in providing a novel moral basis for statutes of limitations and in shedding light on new avenues in the theory of criminal law generally. (shrink)

This paper examines the problems that may arise, particularly for military personnel, when the requirements of doing one's duty seem to come into conflict with the demands of loyalty. This conflict is especially problematic because loyalty is often seen, especially by serving military personnel, as the highest of military virtues. The paper introduces a categorisation of ethical issues into two main types, which are referred to as ‘ethical dilemmas’ and ‘tests of integrity’ which is then used to clarify the issues (...) involved when duty and loyalty come into conflict. It is argued that a true understanding of loyalty and disloyalty means that the demands of loyalty can never legitimately override a genuine duty to follow orders. (shrink)

This volume continues the story of European political theorising by focusing on medieval and Renaissance thinkers. It includes extensive discussion of the practices that underpinned medieval political theories and which continued to play crucial roles in the eventual development of early-modern political institutions and debates. The author strikes a balance between trying to understand the philosophical cogency of medieval and Renaissance arguments on the one hand, elucidating why historically-suited medieval and Renaissance thinkers thought the ways they did about politics; and (...) why we often think otherwise. (shrink)

Home care is one of the fastest‐growing industries in the United States, providing valuable opportunities for millions of older adults and people with disabilities to live at home rather than in institutional settings. Home care workers assist clients with essential activities of daily living, but their wages and working conditions generally fail to reflect the importance of their work. Drawing on the work of Eva Feder Kittay and other care ethicists, we argue that good care involves attending to the needs (...) of another out of a concern for their well‐being. Such care should be standard in the home care system. Yet, because of the pervasive racial, gender, and economic inequalities that the home care industry perpetuates, home care workers and their clients cannot reasonably be expected to care about each other. We endorse reforms aimed at enabling home care workers and their clients to form and maintain professional relationships that cultivate care.. (shrink)

According to the knowledge argument, physicalism fails because when physically omniscient Mary first sees red, her gain in phenomenal knowledge involves a gain in factual knowledge. Thus not all facts are physical facts. According to the ability hypothesis, the knowledge argument fails because Mary only acquires abilities to imagine, remember and recognise redness, and not new factual knowledge. I argue that reducing Mary’s new knowledge to abilities does not affect the issue of whether she also learns factually: I show that (...) gaining specific new phenomenal knowledge is required for acquiring abilities of the relevant kind. Phenomenal knowledge being basic to abilities, and not vice versa, it is left an open question whether someone who acquires such abilities also learns something factual. The answer depends on whether the new phenomenal knowledge involved is factual. But this is the same question we wanted to settle when first considering the knowledge argument. The ability hypothesis, therefore, has offered us no dialectical progress with the knowledge argument, and is best forgotten. (shrink)

I argue that there is no fallacy of argument from authority. I first show the weakness of the case for there being such a fallacy: text-book presentations are confused, alleged examples are not genuinely exemplary, reasons given for its alleged fallaciousness are not convincing. Then I analyse arguing from authority as a complex speech act. Rejecting the popular but unjustified category of the "part-time fallacy", I show that bad arguments which appeal to authority are defective through breach of some felicity (...) condition on argument as a speech act, not through employing a bad principle of inference. (shrink)

This book provides an introduction to the real-life ethical issues faced by those serving in modern military forces. With its focus on the practical problems facing those in positions of command, it is of particular relevance to prospective military officers at military academies. The book is also appropriate for Ethics of War and Military Ethics courses at non-military undergraduate programs in philosophy and ethics. The book includes more than fifty specially selected case studies, many previously unpublished. These cases enable students (...) to examine, in real and understandable situations, the ethical problems which military personnel face in modern operations. (shrink)

Conscious mental qualities, aka phenomenal qualities, are seemingly a leading factor in much of our behaviour. Pains make us recoil from painful stimuli, itches make us scratch, feelings of anger sometimes make us shout, visually perceiving red leads us to halt at stop lights, and so on. To relinquish this claim about the efficacy of conscious mental qualities would mean surrendering a major component of our everyday, intuitive self-conception; hence, the claim enjoys considerable prima facie plausibility. Unconscious mental qualities, however, (...) have been posited by a mere handful of philosophers historically, and are nowadays almost universally rejected. Via a case study of ‘restless legs syndrome’, I argue that there is a hitherto unnoticed cost to this prevailing rejection of unconscious mental qualities: the causal efficacy of conscious mental qualities is threatened. In fact, I argue, we face a dilemma: To endorse epiphenomenalism about conscious mental qualities, or to posit unconscious mental qualities. Since it is so plausible that conscious mental qualities are causally efficacious, this reasoning constitutes an argument for unconscious mental qualities. Moving beyond the sensory case, I explain how analogous reasoning might apply to other mental faculties where phenomenal qualities seem causally involved: notably, emotions and mental imagery. (shrink)