“Virtue jurisprudence” is a normative and explanatory theory of law that utilises the resources of virtue ethics to answer the central questions of legal theory. The main focus of this essay is the development of a virtue–centred theory of judging. The exposition of the theory begins with exploration of defects in judicial character, such as corruption and incompetence. Next, an account of judicial virtue is introduced. This includes judicial wisdom, a form of phronesis, or sound practical judgement. A virtue–centred account (...) of justice is defended against the argument that theories of fairness are prior to theories of justice. The centrality of virtue as a character trait can be drawn out by analysing the virtue of justice into constituent elements. These include judicial impartiality (even–handed sympathy for those affected by adjudication) and judicial integrity (respect for the law and concern for its coherence). The essay argues that a virtue–centred theory accounts for the role that virtuous practical judgement plays in the application of rules to particular fact situations. Moreover, it contends that a virtue–centred theory of judging can best account for the phenomenon of lawful judicial disagreement. Finally, a virtue–centred approach best accounts for the practice of equity, departure from the rules based on the judge’s appreciation of the particular characteristics of individual fact situations. [ABSTRACT FROM AUTHOR]. (shrink)

This book develops a new Wittgenstein interpretation called Wittgenstein’s Metametaphysics. The basic idea is that one major strand in Wittgenstein’s early and later philosophy can be described as undermining the dichotomy between realism and idealism. The aim of this book is to contribute to a better understanding of the relation between language and reality and to open up avenues of dialogue to overcome deep divides in the research literature. In the course of developing a comprehensive and in-depth interpretation, the author (...) provides fresh and original analyses of the latest issues in Wittgenstein scholarship and gives new answers to both major exegetical and philosophical problems. This makes the book an illuminating study for scholars and advanced students alike. (shrink)

This paper studies definability within the theory of institutions, a version of abstract model theory that emerged in computing science studies of software specification and semantics. We generalise the concept of definability to arbitrary logics, formalised as institutions, and we develop three general definability results. One generalises the classical Beth theorem by relying on the interpolation properties of the institution. Another relies on a meta Birkhoff axiomatizability property of the institution and constitutes a source for many new actual definability results, (...) including definability in (fragments of) classical model theory. The third one gives a set of sufficient conditions for 'borrowing' definability properties from another institution via an 'adequate' encoding between institutions. The power of our general definability results is illustrated with several applications to (many-sorted) classical model theory and partial algebra, leading for example to definability results for (quasi-)varieties of models or partial algebras. Many other applications are expected for the multitude of logical systems formalised as institutions from computing science and logic. (shrink)

The interpretation-construction distinction, which marks the difference between linguistic meaning and legal effect, is much discussed these days. I shall argue that the distinction is both real and fundamental – that it marks a deep difference in two different stages in the way that legal and political actors process legal texts. My account of the distinction will not be precisely the same as some others, but I shall argue that it is the correct account and captures the essential insights of (...) its rivals. This Essay aims to mark the distinction clearly! The basic idea can be explained by distinguishing two different moments or stages that occur when an authoritative legal text is applied or explicated. The first of these moments is interpretation – which I shall stipulate is the process that recognizes or discovers the linguistic meaning or semantic content of the legal text. The second moment is construction – which I shall stipulate is the process that gives a text legal effect. I shall then claim that the difference between interpretation and construction is real and fundamental. Although the terminology could vary, legal theorists cannot do without the distinction. One more preliminary point: the topic of this Essay is narrow and conceptual. This Essay, has three goals: to explicate the nature of the interpretation-construction distinction, to argue that this distinction marks a real difference, and to suggest that the distinction is helpful in that it enables legal theorists to clarify the nature of important debates, for example debates about constitutional interpretation. The Essay does not offer any particular theory of interpretation or construction – that it is, it remains agnostic about questions as to how linguistic meaning can be discerned or how legal content ought to be determined. Nor does this theory offer an account of the history and origins of the distinction. Those topics are important, but raising them in this Essay might shift attention away from prior questions about the nature and value of the distinction itself. Here is the roadmap. In Part II, this Essay shall discuss two preliminary sets of ideas: vagueness and ambiguity, and semantic content and legal content. In Part III, this Essay shall use these preliminary ideas to answer the questions, "What is interpretation?" and "What is construction?" In Part IV, this Essay shall consider some objections to the interpretation-construction distinction. In Part V, this Essay shall develop the argument that the distinction is fundamental and indispensable. (shrink)

The standardised randomised clinical trial (RCT) has been exceedingly popular in medical research, economics, and practical policy making. Recently, RCTs have faced criticism. First, it has been argued by John Worrall that we cannot be certain that our sample is not atypical with regard to possible confounding factors. I will argue that at least in the case of medical research, we know enough about the relevant causal mechanisms to be justified to ignore a number of factors we have good reason (...) not to expect to be disruptive. I will also argue against an argument provided by Nancy Cartwright and Eileen Munro that RCTs should not be taken to deductively infer probabilistic causal claims, but ampliatively. The paper will end on a discussion of evidence hierarchies and a defence of the stance of evidence-based medicine that RCTs are the best available method to assess a treatment’s efficacy. (shrink)

Student nurses are confronted by many ethical challenges in clinical practice. The aim of the study was to explore Malawian students’ experiences of ethical problems during their clinical placement. A phenomenological hermeneutic design comprising interviews and qualitative content analysis was used. Ten students were interviewed. Three main themes emerged: 1) Conflict between patient rights and the guardians’ presence in the hospital; 2) Conflict between violation of professional values and patient rights caused by unethical behaviour; and 3) Conflict between moral awareness (...) and the ideal course of action. The students had difficulties ensuring patient rights and acting in accordance with western norms and values which are not always appropriate in the Malawian context. The students require role models who demonstrate professional attitudes towards patients’ rights and values. There is a need to create pedagogical strategies in which a caring attitude and ethical reflection can be learned and cultivated in clinical practice. (shrink)

This essay investigates the indeterminacy thesis - roughly the claim that the content of authoritative legal materials (such as the texts of constitutions, statutes, cases, rules, and regulations) does not determine the outcome of particular legal disputes. The indeterminacy thesis can be formulated as either "strong" or weak." The strong version of the indeterminacy thesis is demonstrably false, but several weak versions of the thesis are true but lack the radical implications of strong indeterminacy.The strong indeterminacy thesis is the claim (...) that all cases are "hard" cases - or that in any case any conceivable result can be derived from existing legal doctrine. Strong indeterminacy does not hold if there are easy cases - cases in which some outcomes cannot be legally correct. For example, if it were the case that the first paragraph of this abstract did not slander Gore Vidal, then there would be at least one easy case, and strong indeterminacy would be false.Weak versions of the indeterminacy thesis include the claim that important cases are indeterminate, that the law does not necessarily determine outcomes, or that every case could become indeterminate if political conditions supported indeterminacy. These weaker claims may be true, but they lack the critical bite associated with strong indeterminacy.The essay also distinguishes between "determinacy," "indeterminacy," and "underdeterminacy." The law is "determinate" with respect ot a given case if and only if the set of results that can be squared with the legal materials contains only one member. The law is "indeterminate" with respect to a given case if and only if the set of results that can be squared with the legal materials is identical with the set of all imaginable results. The law is "underdeterminate" with respect to a given case if and only if the set of results that can be squared with the legal materials is a nonidentical subset of the set of all imaginable results.This article was first published in 1987, and some of the author's views have been revised in interim. (shrink)

ABSTRACTIn this paper, I will investigate the compatibility of different metaphysics of time with the powers view. At first sight, it seems natural to combine some sort of powers ontology with a dy...

This essay explores the development of "virtue jurisprudence," a general theory of law that draws on ideas developed in virtue ethics.

While every music lover senses the power and truth that reside in music, very few actually approach music as a path to cosmic knowledge. But the idea that the universe is created out of sound is an ancient one. This book brings together three contemporary German thinkers who exemplify this tradition: Marius Schneider, Rudolf Haase, and Hans Erhard Lauer.

Background: Nurses and student nurses in Malawi often encounter challenges in taking a moral course of action. Several studies have demonstrated a need for increased awareness of ethical issues in the nursing education. Objective: To explore the challenges experienced by nurse teachers in Malawi in their efforts to enhance students’ moral competence in clinical practice. Research design: A qualitative hermeneutic approach was employed to interpret the teachers’ experiences. Participants and research context: Individual interviews (N = 8) and a focus group (...) interview with teachers (N = 9) from different nursing colleges were conducted. Ethical considerations: Ethical approval was granted and all participants signed their informed consent. Findings: Two overall themes emerged: (1) authoritarian learning climate, with three subthemes: (a) fear of making critical comments about clinical practice, (b) fear of disclosing mistakes and lack of knowledge and (c) lack of a culture of critical discussion and reflection that promotes moral competence; and (2) discrepancy between expectations on learning outcome from nursing college and the learning opportunities in practice comprising three subthemes: (a) gap between the theory taught in class and learning opportunities in clinical practice, (b) lack of good role models and (c) lack of resources. Discussion: Our findings indicated that showing respect was a central objective when the students were assessed in practice. A number of previous studies have enlightened the need for critical reflection in nursing education. Few studies have linked this to challenges experienced by teachers for development of moral competence in practice. This is one of the first such studies done in an African setting. Conclusion: There is a clear relationship between the two themes. A less authoritarian learning climate may enhance critical reflection and discussion between students, teachers and nurses. This can narrow the gap between the theory taught in college and what is demonstrated in clinical practice. Moral competence must be enhanced in order to ensure patients’ rights and safety. (shrink)

ABSTRACTThis article investigates a virtue-centered approach to normative legal theory in the context of legislation. The core idea of such a theory is that the fundamental aim of law should be the promotion of human flourishing, where a flourishing human life is understood as a life of rational and social activities that express the human excellences. Law can promote flourishing in several ways. Because peace and prosperity are conducive to human flourishing, legislation should aim at the establishment and maintenance of (...) these conditions. The human excellences are developed in childhood and young adulthood by stable and nurturing families and by educational institutions: therefore, the law should support and foster families and schools. Although some critics have argued that an aretaic theory of legislation must support so-called “vice laws,” this is not the case. A virtue-centered approach must take into account the effects produced by criminalization of alcohol, drugs, gambling, and prosti... (shrink)

Craig Callender, Jonathan Cohen and Markus Schrenk have recently argued for an amended version of the best system account of laws – the better best system account (BBSA). This account of lawhood is supposed to account for laws in the special sciences, among other desiderata. Unlike David Lewis's original best system account of laws, the BBSA does not rely on a privileged class of natural predicates, in terms of which the best system is formulated. According to the BBSA, a contingently (...) true generalization is a law of a special science S iff the generalization is an axiom (or a theorem) of the best system relative to the set of predicates used by special science S. We argue that the BBSA is, at best, an incomplete theory of special science laws, as it does not account for typical features of special science laws, such as attached ceteris paribus conditions and the idealized character of law statements in these disciplines. (shrink)

A naturalistic scheme of primitive conceptual representations is proposed using the statistical measure of mutual information. It is argued that a concept represents, not the class of objects that caused its tokening, but the class of objects that is most likely to have caused it (had it been tokened), as specified by the statistical measure of mutual information. This solves the problem of misrepresentation which plagues causal accounts, by taking the representation relation to be determined via ordinal relationships between conditional (...) probabilities. The scheme can deal with statistical biases and does not rely on arbitrary criteria. Implications for the theory of meaning and semantic content are addressed. (shrink)

What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from the interpretation of the United States Constitution as a guarantee of fundamental economic equality and proposals to restore the lost constitution to arguments for the virtual abandonment of structural provisions of the Constitution of 1789. Such proposals are conventionally understood as placing constitutional options on the table as real options for constitutional change. Normative constitutional theory asks the question whether (...) these options are desirable - whether political actors (citizens, legislators, executives, or judges) should take action to bring about their plans for constitutional reform or revolution. Frequently, normative constitutional theories are criticized on the ground that they are undesirable, unwise, on inconsistent with the best theories of political morality and legitimate legal authority, but sometimes one hears a very different form of criticism, expressed in locutions such as the following: That is unrealistic. That's not possible. That is pie in the sky. You are imagining castles in the air. Your suggestion is utopian. That isn't feasible. These objections invoke the idea of ephemeral constitutional possibility - constitutional options that are not real or actual possibilities. What are our constitutional possibilities? How should we think about the feasible choice set for constitutional change? What are the differences between ideal and nonideal theory? What role should the ideas of path dependency and second best play in constitutional theory? These inquiries cross the lines between normative, positive, and conceptual constitutional theory. At the conceptual level, we can ask what phrases like constitutional possibility, ideal theory, and the feasible choice set mean. At the level of positive constitutional theory, we can ask about the forces and institutions that condition constitutional possibility. At the level of normative constitutional theory, we can ask about the implications of constitutional possibility for political morality. Constitutional Possibilities proceeds as follows. Part I introduces the idea of ephemeral constitutional possibilities. Part II will cobble together a conceptual toolkit for thinking about possibility and necessity in constitutional theory: the tools include: (a) the distinction between ideal and nonideal theory, (b) the notion of a constitutional second best, and (c) an introduction to possible-worlds semantics. Part III will explore the implications of the resulting proto-theory of constitutional possibility in two stages: stage one will investigate the normative implications, whereas stage two will reconnoiter a set of standards for making modal claims in constitutional arguments. Part IV provides a case study in constitutional possibility by examining Sanford Levinson's proposal for a constitutional convention. Part V concludes with the problem of false constitutional necessity. (shrink)

3 LIBERTARIANISM Now that we have discussed determinism and laws of nature, let us finally turn to libertarianism. Traditionally, libertarianism has been viewed as an incompatibilist theory of free will, as it requires the existence of real ...

abstractThe paper explores a new interpretation of the consequentializing project. Three prominent interpretations are criticized for neglecting the explanatory dimension of moral theories. Instead...

Justice is a natural virtue. Well-functioning humans are just, as are well-ordered human societies. Roughly, this means that in a well-ordered society, just humans internalize the laws and social norms (the nomoi)--they internalize lawfulness as a disposition that guides the way they relate to other humans. In societies that are mostly well-ordered, with isolated zones of substantial dysfunction, the nomoi are limited to those norms that are not clearly inconsistent with the function of law--to create the conditions for human flourishing. (...) In a radically dysfunctional society, humans are thrown back on their own resources--doing the best they can in circumstances that may require great practical wisdom to avoid evil and achieve good. Justice is naturally good for humans--it is part and partial of human flourishing. All of these are natural ethical facts. "Natural Justice" develops these claims in four stages. Part I contextualizes the claim that justice is a natural virtue in relationship to David Hume's famous argument about deriving ought from is, G. E. Moore's open-question argument, and the so-called fact-value distinction. The upshot of the discussion in part I is the claim that there are no clearly decisive objections to existence of natural ethical facts. Part II traces the movement from neo-Aristotelian virtue ethics to virtue jurisprudence by articulating a theory of the judicial virtues. Among these are the virtues of practical wisdom and of justice. Practical wisdom or phronesis is best understood on the model of moral vision, which in the context of law is legal vision or situation sense. The virtue of justice is best understood as lawfulness. Just humans are law-abiding or nomimos--in that they internalize the widely shared and deeply held social norms of their social groups. This part concludes with the claim that a legally correct decision is the decision that characteristically would be rendered by a fully virtuous judge under the circumstances of the case. Part III argues that natural justice can be understood on the model of natural goodness as articulated in the work of Philippa Foot and Michael Thompson. The intuitive idea is that justice as lawfulness is naturally good for reason--using social creatures in human circumstances. This part also articulates and responds to a variety of objections. Part IV concludes by articulating the sense in which an aretaic theory of law that incorporates a natural virtue of justice as lawfulness can be viewed as an expression of the natural law tradition. The natural law idea that an unjust enactment is not a true law corresponds to two senses in which positive laws can fail to be nomoi (in the technical sense specified by virtue jurisprudence). First, a given enactment may contravene deeply held and widely shared social norms. Second, such enactments may be fundamentally inconsistent with the purpose of law--the promotion of human flourishing. (shrink)

The Aretaic Turn in Constitutional Theory argues that an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions (...) on particular issues and the fervor of their ideological passions. Part II, Institutionalism and Constitutional Interpretation, engages Cass Sunstein and Adrian Vermeule's recent essay, "Interpretation and Institutions." Sunstein and Vermeule contend that theories of constitutional interpretation are most fundamentally flawed because of their failure to take an institutional turn, but their supporting arguments lead to a related but quite distinct conclusion. Only a theory of judicial character can supply the diagnosis for the ills that Sunstein and Vermeule identify: constitutional theory must take an aretaic turn. Part III, Making the Aretaic Turn in Constitutional Theory, sketches an alternative approach to judicial review and constitutional interpretation that is rooted in contemporary virtue ethics. In Part IV, Constitutional Virtues and Vices, this sketch is given flesh and bones in the form of a theory of constitutional virtue and vice. Excellence in constitutional adjudication requires the virtues of judicial courage, judicial temperament, judicial temperance, judicial intelligence, and judicial wisdom (or phronesis). Most importantly, a virtuous constitutional interpreter must have the virtue of justice, which includes as components impartiality, lawfulness, and legal vision. Part V, The Aretaic Reconstruction of the Institutional Critique, returns to institutionalism as an approach to the theory of constitutional interpretation and argues that institutionalists cannot coherently refrain from making the aretaic turn. The article ends with speculation about the possibility of a path to the restoration of judicial virtue. (shrink)

This essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and mandates). Is the original meaning of the constitutional text binding on the Supreme Court when it develops doctrines of constitutional law? Should statutes be given their plain meaning or should judges devise statutory constructions that depart from the text to serve a purpose? What role should default rules (...) play in the interpretation and construction of contracts? This essay makes two moves that can help lawyers and legal theorists answer these questions. First, there is a fundamental conceptual distinction between "communicative content" (the linguistic meaning communicated by a legal text in context) and "legal content" (the doctrines of the legal rules associated with a text). Second, the relationship between communicative content and legal content varies with context; different kinds of legal texts produce different relationships between linguistic meaning and legal rules. (shrink)

This paper argues that the development of early-modern science was strongly influenced by prevailing legal practices.1 This argument goes back to the work of Barbara Shapiro, who explored in a numb...

Introduction : reinterpreting landscapes in an evolving world -- The pastoral tradition as inherited motives -- From classical pastorals to pastoral landscapes : rebirth of the landscape idea through analytical narration -- Instances of pastoral motivation in contemporary landscape analytical practice -- Articulating analytical narratives of contemporary pastoral landscapes -- The landscape analyst's pastoral action.

Right to life is an essential natural right protected and defended by law. The aim of this publication is to discuss the main issues regarding human right to life and its protection in the Roman law. Article deals with the problems of beginning and end of the human life and legal capacity in Rome, elements of legal protection of slaves and family members subject to pater familias life as well as the principle crimes attempting to human life. First of all, (...) the right to life as well as the right to liberty were held to be the institutes of natural law (ius naturale) meanwhile institutes that provided possibility to withdraw those rights (e. g. patria potestas that in the most ancient époque included right to decide on subject person’s right to life) are derived from the branches of positive law—civil (ius civile) and law of nations (ius gentium). Such attitude of the Roman jurisprudence had a solid impact on recognizing right of life to be an inherent law of every person, deriving immediately from the human nature and not conferred by the society and the state. (shrink)

Andrei Plesu, Comedii la portile Orientului (Farces at the Orient’s Gates) Humanitas Publishing House, Bucharest, 2005.

The purpose of this essay is two-fold. The first aim is to introduce the reader to Semantic Originalism - a version of the New Originalism that is fully articulated in a long article of that name. The reader's guide in Part II provides a very short summary and accessible guide to the argument of Semantic Originalism. The second aim is to provide access to an exchange between Stephen Griffin and myself in the Blogosphere. Griffin's eight questions and comments about Semantic (...) Originalism and my replies are reproduced in lightly edited form in Part III. My concluding remarks about Griffin's questions included a three dimensional model of the space of theoretical argument about originalism: that model is presented in Part IV. This version of "A Reader's Guide to Semantic Originalism and a Reply to Professor Griffin" was uploaded on June 19, 2008, and it replaces all prior versions. (shrink)

Could an artificial intelligence become a legal person? As of today, this question is only theoretical. No existing computer program currently possesses the sort of capacities that would justify serious judicial inquiry into the question of legal personhood. The question is nonetheless of some interest. Cognitive science begins with the assumption that the nature of human intelligence is computational, and therefore, that the human mind can, in principle, be modelled as a program that runs on a computer. Artificial intelligence (AI) (...) research attempts to develop such models. But even as cognitive science has displaced behavioralism as the dominant paradigm for investigating the human mind, fundamental questions about the very possibility of artificial intelligence continue to be debated. This Essay explores those questions through a series of thought experiments that transform the theoretical question whether artificial intelligence is possible into legal questions such as, "Could an artificial intelligence serve as a trustee?" What is the relevance of these legal thought experiments for the debate over the possibility of artificial intelligence? A preliminary answer to this question has two parts. First, putting the AI debate in a concrete legal context acts as a pragmatic Occam's razor. By reexamining positions taken in cognitive science or the philosophy of artificial intelligence as legal arguments, we are forced to see them anew in a relentlessly pragmatic context. Philosophical claims that no program running on a digital computer could really be intelligent are put into a context that requires us to take a hard look at just what practical importance the missing reality could have for the way we speak and conduct our affairs. In other words, the legal context provides a way to ask for the "cash value" of the arguments. The hypothesis developed in this Essay is that only some of the claims made in the debate over the possibility of AI do make a pragmatic difference, and it is pragmatic differences that ought to be decisive. Second, and more controversially, we can view the legal system as a repository of knowledge-a formal accumulation of practical judgments. The law embodies core insights about the way the world works and how we evaluate it. Moreover, in common-law systems judges strive to decide particular cases in a way that best fits the legal landscape-the prior cases, the statutory law, and the constitution. Hence, transforming the abstract debate over the possibility of AI into an imagined hard case forces us to check our intuitions and arguments against the assumptions that underlie social decisions made in many other contexts. By using a thought experiment that explicitly focuses on wide coherence, we increase the chance that the positions we eventually adopt will be in reflective equilibrium with our views about related matters. In addition, the law embodies practical knowledge in a form that is subject to public examination and discussion. Legal materials are published and subject to widespread public scrutiny and discussion. Some of the insights gleaned in the law may clarify our approach to the artificial intelligence debate. (shrink)

In this paper, I will discuss accounts to solve the problem of induction by introducing necessary connections. The basic idea is this: if we know that there are necessary connections between properties F and G such that F -ness necessarily brings about G-ness, then we are justified to infer that all, including future or unobserved, F s will be Gs. To solve the problem of induction with ontology has been proposed by David Armstrong and Brian Ellis. In this paper, I (...) will argue that these attempts to solve the problem of induction fail. Necessary connections fail to reliably imply the respective regularities for two main reasons: Firstly, according to an argument originally presented by Helen Beebee, the respective necessary connections might be time-limited, and hence do not warrant inferences about future cases. As I will discuss, arguments against the possibility or explanatory power of time-limited necessary connections fail. Secondly, even time-unlimited necessary connections do not entail strict or non-strict regularities, and nor do they allow inferences about individual cases, which is an important function of inductive reasoning. Moreover, the proposed solution to the problem of induction would only apply to a tiny minority of inductive inferences. I argue that most inductive inferences are not easily reducible to the proposed inference pattern, as the vast majority of everyday inductive inferences do not involve necessary connections between fundamental physical properties or essences. (shrink)

Ethical problems regularly arise during daily care in nursing homes. These include violation of patients' right to autonomy and to be treated with respect. The aim of this study was to investigate how caregivers emphasize daily dialogue and mutual reflection to reach moral alternatives in daily care. The data were collected by participant observation and interviews with seven caregivers in a Norwegian nursing home. A number of ethical problems linked to 10 patients were disclosed. Moral problems were revealed as the (...) caregivers acted in ways that they knew were against patients' interest. We used a theoretical interpretation according to Habermas' discourse ethics on the importance of dialogue when deciding moral courses of action for patients. This theory has four basic requirements: communicative competence, equality, self-determination, and openness about motives. (shrink)

"Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. The two principles require a system of procedure to aim at accuracy and to afford reasonable rights of participation qualified by a practicability constraint. The Article begins in Part I, Introduction, with two (...) observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question - what is procedure? - is the most difficult and requires an extensive answer: Part II, Substance and Procedure, defines the subject of the inquiry by offering a new theory of the distinction between substance and procedure that acknowledges the entanglement of the action-guiding roles of substantive and procedural rules while preserving the distinction between two ideal types of rules. The key to the development of this account of the nature of procedure is a thought experiment, in which we imagine a world with the maximum possible acoustic separation between substance and procedure. Part III, The Foundations of Procedural Justice, lays out the premises of general jurisprudence that ground the theory and answers a series of objections to the notion that the search for a theory of procedural justice is a worthwhile enterprise. Sections II and III set the stage for the more difficult work of constructing a theory of procedural legitimacy. Part IV, Views of Procedural Justice, investigates the theories of procedural fairness found explicitly or implicitly in case law and commentary. After a preliminary inquiry that distinguishes procedural justice from other forms of justice, Part IV focuses on three models or theories. The first, the accuracy model, assumes that the aim of civil dispute resolution is correct application of the law to the facts. The second, the balancing model, assumes that the aim of civil procedure is to strike a fair balance between the costs and benefits of adjudication. The third, the participation model, assumes that the very idea of a correct outcome must be understood as a function of process that guarantees fair and equal participation. Part IV demonstrates that none of these models provides the basis for a fully adequate theory of procedural justice. In Part V, The Value of Participation, the lessons learned from analysis and critique of the three models are then applied to the question whether a right of participation can be justified for reasons that are not reducible to either its effect on the accuracy or its effect on the cost of adjudication. The most important result of Part V is the Participatory Legitimacy Thesis: it is (usually) a condition for the fairness of a procedure that those who are to be finally bound shall have a reasonable opportunity to participate in the proceedings. The central normative thrust of Procedural Justice is developed in Part VI, Principles of Procedural Justice. The first principle, the Participation Principle, stipulates a minimum (and minimal) right of participation, in the form of notice and an opportunity to be heard, that must be satisfied (if feasible) in order for a procedure to be considered fair. The second principle, the Accuracy Principle, specifies the achievement of legally correct outcomes as the criterion for measuring procedural fairness, subject to four provisos, each of which sets out circumstances under which a departure from the goal of accuracy is justified by procedural fairness itself. In Part VII, The Problem of Aggregation, the Participation Principle and the Accuracy Principle are applied to the central problem of contemporary civil procedure - the aggregation of claims in mass litigation. Part VIII offers some concluding observations about the point and significance of Procedural Justice. (shrink)

ABSTRACT In this paper, I propose a variant of a Humean account of laws called "Open Future Humeanism", which holds that since the laws supervene partly on future events, there are at any instant infinitely many possible future courses of events. I argue that if one wants to take the openness of the future that OFH proposes ontologically serious, then OFH is best represented within a growing block view of time. I further discuss some of OFH's problems which stem from (...) the fact that in this view, there are no laws as long as time progresses. These problems can be solved by adding a temporal operator to the laws, so that at any instant, we get a set of tensed laws which held up to and including that instant. (shrink)