DOCSLIB.ORG

FORM and SUBSTANCE in PRIVATE LAW ADJUDICATION + Duncan Kennedy *

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
FORM and SUBSTANCE in PRIVATE LAW ADJUDICATION + Duncan Kennedy * FORM AND SUBSTANCE IN PRIVATE LAW ADJUDICATION + Duncan Kennedy * This article is an inquiry into the nature and interconnection of the different rhetorical modes found in American private law opinions, articles and treatises. I argue that there are two opposed rhetorical modes for dealing with substantive issues, which I will call individualism and altruism. There are also two opposed modes for dealing with questions of the form in which legal solutions to the substantive problems should be cast. One formal mode favors the use of clearly defined, highly administrable, general rules; the other supports the use of equitable standards producing ad hoc decisions with relatively little precedential value. My purpose is the rational vindication of two common intuitions about these arguments as they apply to private law disputes in which the validity of legislation is not in question. The first is that altruist views on substantive private law issues lead to willingness to resort to standards in administration, while individualism seems to harmonize with an insistence on rigid rules rigidly applied. The second is that substantive and formal conflict in private law cannot be reduced to disagreement about how to apply some neutral calculus that will "maximize the total satisfactions of valid human wants."1 The opposed rhetorical modes lawyers use reflect a deeper level of contradiction. At this deeper level, we are divided, among ourselves and also within ourselves, between irreconcilable visions of humanity and society, and between radically different aspirations for our common future. The discussion proceeds as follows. Sections I and II address the problem of the choice between rules and standards as the form for legal directives, collecting and organizing the wide variety of arguments that have been found persuasive in different areas of legal study. Sections III and IV develop the dichotomy of individualism and altruism, with the hope of bringing a measure of order to the chaotic mass of "policies" lawyers use in justifying particular legal rules. Sections V, VI and VII argue that the __________________________________________________________________ + Copyright 1976 by Duncan Kennedy. * Professor of Law, Harvard University. Colleagues, friends and family too numerous to list helped me generously in the writing of this article; Philip Heymann, Morton Horwitz, Robert Nozick and Henry Steiner were especially profligate of their time and thoughts. Errors are mine alone. 1 H. HART & A. SACKS, THE LEGAL PROCESS 113 (tent. ed. 1958). 1685 1686 HARVARD LAW REVIEW [Vol. 89:1685 formal and substantive dichotomies are in fact aspects of a single conflict, whose history is briefly traced through a hundred and fifty years of moral, economic and political dispute. Section VIII outlines the contradictory sets of fundamental premises that underlie this conflict. Section IX is a conclusion. I will use the law of contracts as a primary source of illustrations, for two reasons. I know it better than other private law subjects, and it is blessed with an extraordinary scholarly literature full of insights that seem to beg for application beyond the narrow compass within which their authors developed them. For example, much of this article simply abstracts to the level of "private law" the argument of an article by Stewart Macaulay on credit cards.2 It may be useful to take, as a beginning text, the following passage from the Kessler and Gilmore Contracts casebook: 3 The eventual triumph of the third party beneficiary idea may be looked on as still another instance of the progressive liberalization or erosion of the rigid rules of the late nineteenth century theory of contractual obligation. That such a process has been going on throughout this century is so clear as to be beyond argument. The movement on all fronts has been in the direction of expanding the range and the quantum of obligation and liability. We have seen the development of theories of quasi-contractual liability, of the doctrines of promissory estoppel and culpa in contrahendo, of the perhaps revolutionary idea that the law imposes on the parties to a contract an affirmative duty to act in good faith. During the same period the sanctions for breach of contract have been notably expanded. Recovery of "special" or "consequential" damages has become routinely available in situ- ations in which the recovery would have been as routinely denied fifty years ago. The once "exceptional" remedy of specific performance is rapidly becoming the order of the day. On the other hand the party who has failed to perform his contractual duty but who, in the light of the circumstances, is nevertheless felt to be without fault has been protected by a notable expansion of theories of excuse, such as the overlapping ideas of mistake and frustration. To the nineteenth century legal mind the propositions that no man was his brother's keeper, that the race was to the swift and that the devil should take the hindmost seemed not only obvious but morally right. The most striking feature of nineteenth century contract theory is the narrow scope of social ________________________________________________________________________ 2 Macaulay, Private Legislation and the Duty to Read—Business Run by IBM Machine, The Law of Contracts and Credit Cards, 19 VAND. L. REV. 1051, 1056-69 (1966). 3 F. KESSLER & G. GILMORE, CONTRACTS, CASES AND MATERIALS 1118 (2d ed. 1970) [hereinafter cited as KESSLER & GILMORE]. 1976] FORM AND SUBSTANCE 1687 duty which it implicitly assumed. In our own century we have witnessed what it does not seem to fanciful to describe as a socialization of our theory of contract. My purpose is to examine the relationship between the first and last sentences of the quoted passage. What is the connection between the "erosion of the rigid rules of the late nineteenth century theory of contractual obligation" and the "socialization of our theory of contract?" I will begin by investigating the formal concept of a rigid rule. I. THE JURISPRUDENCE OF RULES The jurisprudence of rules is the body of legal thought that deals explicitly with the question of legal form. It is premised on the notion that the choice between standards and rules of different degrees of generality is significant, and can be analyzed in isolation from the substantive issues that the rules or standards respond to.4 A. Dimensions of Form 1. Formal Realizability. — The first dimension of rules is that of formal realizability. I will use this term, borrowed from Rudolph von Ihering's classic Spirit of Roman Law, to describe the degree to which a legal directive has the quality of "ruleness." The extreme of formal realizability is a directive to an official that requires him to respond to the presence together of each of a list of easily distinguishable factual aspects of a situation by interven- _________________________________________________________________ 4 The principal sources on the jurisprudence of form with which I am acquainted are: 6 J. BENTHAM, THE WORKS OF JEREMY BENTHAM 60-86, 508-85 (Bowring ed. 1839); 2 AUSTIN, LECTURES ON JURISPRUDENCE 939-44 (4th ed. 1873); 3 R. VON IHERING, DER GEIST DES ROMSICHEN RECHT § 4, at 50-55 (1883) [available in French translation as R. VON IHERING, L’ESPRIT DU DROIT ROMAIN (Meulenaere trans. 1877); future citations are to French ed.]; 2 M. WEBER, ECONOMY AND SOCIETY 656-67, 880-88 (Ross & Wittich eds. 1969); Pound, The Theory of Judicial Decision, III, 36 HARV. L. REV. 940 (1923); Fuller, Consideration and Form, 41 COLUM. L. REV. 799 (1941); von Mehren, Civil Law Analogues to Consideration: An Exercise in Comparative Analysis, 72 HARV. L. REV. 1009 (1959); Macaulay, Justice Traynor and the Law of Contracts, 13 STAN. L. REV. 812 (1961); Fried, Two Concepts of Interests: Some Reflections on the Supreme Court's Balancing Test, 76 HARV. L. REV. 755 (1963); Friedman, Law, Rules and the Interpretation of Written Documents, 59 NW. U.L. REV. 751 (1965); Macaulay, supra note 2; Dworkin, The Model of Rules, 35 U. CHI. L. REV. 14 (1967); K. DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY (1969); P. SELZNICK, LAW, SOCIETY AND INDUSTRIAL JUSTICE 11-18 (1969); Kennedy, Legal Formality, 2 J. LEG. STUD. 351 (1973); R. UNGER, LAW IN MODERN SOCIETY 203-16 (1976); A. KATZ, Vagueness and Legal Control of Children in Need of Supervision, in STUDIES IN BOUNDARY THEORY (unpublished manuscript on file at Harvard Law Review, 1976). 1688 HARVARD LAW REVIEW [Vol. 89:1685 ing in a determinate way. Ihering used the determination of legal capacity by sole reference to age as a prime example of a formally realizable definition of liability; on the remedial side, he used the fixing of money fines of definite amounts as a tariff of damages for particular offenses.5 At the opposite pole from a formally realizable rule is a standard or principle or policy. A standard refers directly to one of the substantive objectives of the legal order. Some examples are good faith, due care, fairness, unconscionability, unjust enrichment, and reasonableness. The application of a standard requires the judge both to discover the facts of a particular situation and to assess them in terms of the purposes or social values embodied in the standard.6 It has been common ground, at least since Ihering, that the two great social virtues of formally realizable rules, as opposed to standards or principles, are the restraint of official arbitrariness and certainty. The two are distinct but overlapping. Official arbitrariness means the sub rosa use of criteria of decision that are inappropriate in view of the underlying purposes of the rule. These range from corruption to political bias. Their use is seen as an evil in itself, quite apart from their impact on private activity. Certainty, on the other hand, is valued for its effect on the citizenry: if private actors can know in advance the incidence of official intervention, they will adjust their activities in advance to take account of them.
Load more

Recommended publications
  • Jurisprudence--Philosophy Or Science Henry Rottschaefer
    University of Minnesota Law School Scholarship Repository Minnesota Law Review 1927 Jurisprudence--Philosophy or Science Henry Rottschaefer Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Rottschaefer, Henry, "Jurisprudence--Philosophy or Science" (1927). Minnesota Law Review. 1465. https://scholarship.law.umn.edu/mlr/1465 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. MINNESOTA LAW REVIEW Journal of the State Bar Association VOLUI%1E 11 MARCH, 1927 No. 4 JURISPRUDENCE- PHILOSOPHY OR SCIENCE By HENRY ROTTSCHAEFER* T WOULD perhaps be practically impossible to secure for any definition of the term Jurisprudence any very general accep- tance. It is doubtful whether there exists even any general agree- ment as to what subjects are within its scope. The problem of whether, and in what sense, it is to be considered philosophy or science, cannot, however, be discussed without adopting at least some tentative notion of its meaning that shall serve as the basis for the discussion. This can be more effectively done by a general description of the types of problem usually dealt with in treatises and courses on Jurisprudence than by framing a logically correct definition that secured accuracy and completeness by resort to a convenient vagueness. Investigation discloses its use to denote lines of inquiry having little in common other than a professed interest in general questions and problems concerning law and justice.
    [Show full text]
  • Laws in Metaphysics
    LAWS IN METAPHYSICS BY TOBIAS WILSCH A dissertation submitted to the Graduate School—New Brunswick Rutgers, The State University of New Jersey in partial fulfillment of the requirements for the degree of Doctor of Philosophy Graduate Program in Philosophy Written under the direction of Jonathan Schaffer and approved by ___________________________________ ___________________________________ ___________________________________ ___________________________________ New Brunswick, New Jersey May, 2015 ABSTRACT OF THE DISSERTATION Laws in Metaphysics By TOBIAS WILSCH Dissertation director: Jonathan Schaffer The first two chapters of this dissertation defend the Deductive-Nomological Account of metaphysical explanation. Chapter 1 develops the Nomological Account of ground, – p1, …, pn ground q if and only if the laws of metaphysics determine q on the basis of p1, …, pn, – and the constructional theory of the metaphysical laws, – the laws are general principles that characterize construction-operations. Chapter 2 offers an analysis of the notion of determination involved in the Nomological Account: the laws determine q based on p1, …, pn if and only if q follows from p1, …, pn and the laws in the grounding-calculus. The grounding-calculus is characterized in terms of two inference rules and a suitable notion of ‘proof’. The rules are designed to analyze the input- and output notions that are intuitively associated with laws: the laws take some facts as input and deliver some other facts as output. ii Chapters 1 and 2 also go beyond the development of the positive view. Chapter 1 shows how the Nomological Account explains general patterns among grounding-truths, the modal force of ground, and certain connections between ground and construction. Chapter 2 shows why the Deductive-Nomological Account of metaphysical explanation escapes the objections to the traditional DN-account of scientific explanation, and it also outlines two views on logical explanation that are available to the proponent of the Nomological Account.
    [Show full text]
  • LAW and ENCHANTMENT: the PLACE of Belieft
    University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 1987 Law and Enchantment: The lP ace of Belief Joseph Vining University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/articles/1630 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Law and Philosophy Commons, and the Legal Profession Commons Recommended Citation Vining, Joseph. "Law and Enchantment: The lP ace of Belief." Mich. L. Rev. 86 (1987): 577-97. This Essay is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. ESSAYS LAW AND ENCHANTMENT: THE PLACE OF BELIEFt Joseph Vining* I. THE QUESTION The question I wish to raise is whether one must believe what one says when one makes a statement of law. The language of belief that we know, and from which moral discourse and the moral never stray far: do judges, lawyers, law participate in it? Any such question is but an aspect of a larger question, indeed issue, of what we may call the objectivity of legal language. It is raised perhaps most acutely by the broad claims now being made for artificial intelligence and in particular for the computer programming of legal advice (as a species of what is called, in that field of applied science, an "expert system").
    [Show full text]
  • Law and Ideology: Critical Explorations
    LAW AND IDEOLOGY: CRITICAL EXPLORATIONS Rafał Mańko* Michał Stambulski** According to Polish legal theorist Marek Zirk-Sadowski, the philosophy of law as a discipline can be approached from two distinct directions: either from the direction moving ‘from law to philosophy’, whereby lawyers try to answer the fundamental questions of jurisprudence by theorising on the basis of legal experience, or, in the opposite direction, that is ‘from philosophy to law’, whereby a certain philosopher or philosophical school is ‘applied’ to the legal field.1 Within the second paradigm of legal philosophy, in recent years there has been a growing tendency to analyse the implications of postmodernism, posthumanism2, or postructuralism upon the legal domain. Specialised volumes analysing the potential inspiration that can be drawn by critical lawyers from the works of such philosophers as Althusser, Deleuze and Gattari, Lefebvre, Agamben have been recently published.3 Most recently, even a volume on Žižek and Law came out.4 This special edition of the Wrocław Review of Law, Administration and Economics brings together a number of papers in which Polish and foreign scholars, both emergent and established, approach the topic of the DOI: 10.1515/wrlae-2015-0019 * Ph.D. in law (University of Amsterdam); external fellow at the Centre for the Study of European Contract Law (CSECL), University of Amsterdam. The views expressed in this paper do not represent the position of any institution. ** Centre for Legal Education and Social Theory, Faculty of Law, Administration and Economics, University of Wrocław. 1 Marek Zirk-Sadowski, Wprowadzenie do filozofii prawa [An Introduction to the Philosophy of Law] (Warszawa, Wolters Kluwer 2011).
    [Show full text]
  • Kant on Obligation and Motivation in Law and Ethics
    University of Nebraska - Lincoln DigitalCommons@University of Nebraska - Lincoln Faculty Publications - Department of Philosophy Philosophy, Department of 1994 Kant on Obligation and Motivation in Law and Ethics Nelson T. Potter Jr. University of Nebraska - Lincoln, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/philosfacpub Part of the Continental Philosophy Commons, Ethics and Political Philosophy Commons, Legal Ethics and Professional Responsibility Commons, and the Legal History Commons Potter, Nelson T. Jr., "Kant on Obligation and Motivation in Law and Ethics" (1994). Faculty Publications - Department of Philosophy. 15. https://digitalcommons.unl.edu/philosfacpub/15 This Article is brought to you for free and open access by the Philosophy, Department of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Faculty Publications - Department of Philosophy by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Potter in Jarbuch für Recht und Ethik (1994) 2. Copyright 1994, Friedrich-Alexander-Universität Erlangen-Nürnberg. Used by permission. Kant on Obligation and Motivation in Law and Ethics Nelson Potter I. There is a passage in Immanuel Kant's general introduction to both parts of Die Metaphysik der Sitten that deserves more attention than it has received. I plan to build the present paper around the implil:ations of this passage: In all lawgiving (Gesetzgebung) (whether it prescribes for internal or external actions, and whether it prescribes them a priori by reason alone or by the choice of another) there are two elements: first, a law, which represents an action that is to be done as objectively necessary, that is, which makes the action a duty; and second, an incentive, which connects a ground for determining choice to this action subjectively with the representation of the law.
    [Show full text]
  • George Spencer-Brown's Laws of Form Fifty Years On
    MATHEMATICS TEACHING RESEARCH JOURNAL 161 Special Issue on Philosophy of Mathematics Education Summer 2020 Vol 12 no 2 George Spencer-Brown’s laws of form fifty years on: why we should be giving it more attention in mathematics education Steven Watson University of Cambridge Abstract: George Spencer-Brown’s Laws of Forms was first published in 1969. In the fifty years since its publication, it has influenced mathematicians, scientists, philosophers, and sociologists. Its influence on mathematics education has been negligible. In this paper, I present a brief introduction to the theory and its philosophical underpinnings. And I set out an argument why Laws of Form should be given more attention in mathematics education. Introduction Last year (2019) marked the 50th anniversary of the publication of Laws of Form (LoF), written by George Spencer-Brown (1969). Bertrand Russell described Laws of Form as, “a calculus of great power and simplicity. Not since Euclid’s Elements have we seen anything like it” (Homes, 2016). Heinz von Foerster, pioneer of second order cybernetics, offered no reserve in his praise for Spencer-Brown’s Laws of Form. The laws of form have finally been written! With a "Spencer-Brown" transistorized power razor (a Twentieth Century model of Occam's razor) G. Spencer-Brown cuts smoothly through two millennia of growth of the most prolific and persistent of semantic weeds, presenting us with his superbly written Laws of Form. This Herculean task which now, in retrospect, is of profound simplicity rests on his discovery of the form of laws. Laws are not descriptions, they are commands, injunctions: "Do!" Thus the first constructive proposition in this book (page 3) is the injunction: "Draw a distinction!" an exhortation to perform the primordial creative act (von Foerster, 1971, p.
    [Show full text]
  • Law and Belief in Three Revolutions
    Valparaiso University Law Review Volume 18 Number 3 Spring 1984 pp.569-629 Spring 1984 Law and Belief in Three Revolutions Harold J. Berman Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Harold J. Berman, Law and Belief in Three Revolutions, 18 Val. U. L. Rev. 569 (1984). Available at: https://scholar.valpo.edu/vulr/vol18/iss3/1 This Seegers Lecture is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. Berman: Law and Belief in Three Revolutions ValparaisoUniversity Law Review Volume 18 Summer 1984 Number 3 LAW AND BELIEF IN THREE REVOLUTIONS* HAROLD J. BERMAN** I. GENERAL INTRODUCTION ........................... 569 II. THE LUTHERAN REFORMATION AND GERMAN LAW . 572 III. THE PURITAN REVOLUTION AND ENGLISH LAW .... 590 IV. THE ENLIGHTENMENT, THE FRENCH REVOLUTION, AND THE NAPOLEONIC CODES .......................... 613 I. GENERAL INTRODUCTION Periodically in the history of the West there have occurred revolutionary changes in the predominant system of beliefs held by the people of a given country or countries. Thus in the early sixteenth century the rise of Protestantism, especially in its Lutheran form, reflected a major shift in the belief system of most persons-not only of Protestants -living in the numerous polities that then made up the German Empire. Some four generations later, in the mid-seventeenth century, various Calvinist and neo-Calvinist beliefs became predomi- nant in English social life, espoused not only by Puritans and other so-called Non-Conformists but also by many who remained loyal to Anglicanism.
    [Show full text]
  • Law and Morality: a Kantian Perspective
    Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 1987 Law and Morality: A Kantian Perspective George P. Fletcher Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Jurisprudence Commons, and the Law and Philosophy Commons Recommended Citation George P. Fletcher, Law and Morality: A Kantian Perspective, 87 COLUM. L. REV. 533 (1987). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1071 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. LAW AND MORALITY: A KANTIAN PERSPECTIVE George P. Fletcher* The relationship between law and morality has emerged as the cen- tral question in the jurisprudential reflection of our time. Those who call themselves positivists hold with H.L.A. Hart' that calling a statute or a judicial decision "law" need not carry any implications about the morality of that statute or decision.2 Valid laws might be immoral or unjust. Those who resist this reduction of law to valid enactments sometimes argue, with Lon Fuller, that moral acceptability is a neces- sary condition for holding that a statute is law; 3 or, with Ronald Dworkin, that moral principles supplement valid enactments as compo- 4 nents of the law. Whether the positivists or their "moralist" opponents are right about the nature of law, all seem to agree about the nature of morality. We have to distinguish, it is commonly said, between conventional and critical morality.
    [Show full text]
  • Eternal Laws of Form: Morphotypes and the Conditions of Existence in Goethe’S Biological Thought*
    TIMOTHY LENOIR THE ETERNAL LAWS OF FORM: MORPHOTYPES AND THE CONDITIONS OF EXISTENCE IN GOETHE’S BIOLOGICAL THOUGHT* INTRODUCTION In 1802 Gottfried Reinhold Treviranus announced the birth of a new scientific discipline. He called it “biology,” the science whose aim was to determine the conditions and laws under which the different forms of life exist and their causes. Treviranus was not alone in forging the outlines of the new science of life. He was in fact consciously synthe- sizing discussions that had been going on for at least a decade in Germany involving such persons as Johann Friedrich Blumenbach, Karl Friedrich Kielmeyer, Heinrich Friedrich Link, and the von Humboldt brothers (Lenoir, 1981). But one of the most distinguished co-workers in this enterprise was the man whose scientific work we are celebrating in this volume; namely, Johann Wolfgang von Goethe. In the decade marking the centenary of Darwin’s death as well as the 150th anniversary of Goethe’s death, it is tempting to treat the work of Goethe and his cohorts as the rudimentary beginnings of a scientific discipline which would acquire its firm foundations some sixty years later in the work of Darwin. This was in fact the strategy followed by . Ernst Haeckel a century ago at a similar occasion when the sought to honor both men on the same program by casting Goethe as a precursor of the Darwinian theory of evolution (Haeckel, 1868, pp. 80-81). But such an ecumenical gesture would fail to appreciate the true signifi- cance of the movement initiated by Goethe, Treviranus and others.
    [Show full text]
  • Belief States in Criminal Law
    Oklahoma Law Review Volume 68 Number 3 2016 Belief States in Criminal Law James A. Macleod Gibson, Dunn & Crutcher LLP, [email protected] Follow this and additional works at: https://digitalcommons.law.ou.edu/olr Part of the Criminal Law Commons Recommended Citation James A. Macleod, Belief States in Criminal Law, 68 OKLA. L. REV. 497 (2016), https://digitalcommons.law.ou.edu/olr/vol68/iss3/2 This Article is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in Oklahoma Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact [email protected]. BELIEF STATES IN CRIMINAL LAW JAMES A. MACLEOD* Belief-state ascription—determining what someone “knew,” “believed,” was “aware of,” etc.—is central to many areas of law. In criminal law, the distinction between knowledge and recklessness, and the use of broad jury instructions concerning other belief states, presupposes a common and stable understanding of what those belief-state terms mean. But a wealth of empirical work at the intersection of philosophy and psychology—falling under the banner of “Experimental Epistemology”—reveals how laypeople’s understandings of mens rea concepts differ systematically from what scholars, courts, and perhaps legislators, have assumed. As implemented, mens rea concepts are much more context-dependent and normatively evaluative than the conventional wisdom suggests, even assuming that jurors are following jury instructions to the letter. As a result, there is less difference between knowledge and recklessness than is typically assumed; jurors consistently “over”-ascribe knowledge to criminal defendants; and concepts like “belief,” “awareness,” and “conscious disregard” mean different things in different contexts, resulting in mens rea findings systematically responsive to aspects of the case traditionally considered irrelevant to the meaning of those terms.
    [Show full text]
  • Laws for Metaphysical Explanation
    Philosophical Issues, 27, Metaphysics, 2017 doi: 10.1111/phis.12111 LAWS FOR METAPHYSICAL EXPLANATION Jonathan Schaffer Rutgers University In everything I seek to grasp The fundamental: ... The crux, the roots, the inmost hearts, The explanations. (BorisPasternak,“InEverythingIseektograsp...”,1956, trans. Avril Pyman) What must reality be like, for there to be metaphysical explanation? I argue that, just like causal explanation requires laws of nature, so metaphysical explanation requires laws of metaphysics: 1. There are metaphysical explanations. 2. If there are metaphysical explanations, then there are laws of metaphysics. 3. There are laws of metaphysics. In §§1-3 I lay out the argument, and in §4 I discuss some implications, offering a positive and minimal functional conception of the laws of metaphysics, and arguing that some are fundamental. Talk of “laws of metaphysics” traces back to Rosen (2006; see also Schaffer 2010), and variants of this style of argument from metaphysical explanation are given by Kment (2014: 5, 167–73), Wilsch (2015a: 3294), Glazier (2016), and Rosen (this volume). But there are two key differences: (i) my assumptions are more minimal, in that I assume nothing about ground- ing or essences, and little about explanation; and (ii) my concluding concep- tion of laws is likewise more minimal, since I characterize them as hav- ing just the structure of functions. So I offer both a streamlined re-vision C 2017 Wiley Periodicals, Inc. Laws for Metaphysical Explanation 303 of the argument, and a streamlined re-conception of what laws of meta- physics are. 1. There are Metaphysical Explanations Premise 1 says that there are metaphysical explanations.
    [Show full text]
  • The Philosophy of Law
    THE PHILOSOPHY OF LAW an Expirlsitiirn OF TBE FUNDAXENTAL PRINCIPLES OF JURISPRUDENCE Ar THE SCIENCE OF RIGHT. BY IMMANUEL KANT. EransIateb from tbe Germaa BY W. HASTIE, B.D. EDINBURGH : T. & T. CLARK, 38 QEORGE STREET. 1887. TRANSLATOR'S PREFACE. KANT'SScience of Riyht ' is a complete exposition of the Yhilosophy of Law, viewed as a rational investigation of 'But next to a new ~isto&of Law, what we most require is a the fundamental Principles of Jurisprudence. It was new Philosophy of faw.'-Sir HENRYSUMNE~ MAINE. published in 1'796,2 as the First Part of his Metaphysic of Mo~nls: the promised sequel and completion of the Foundation for a ilfetaphysic of Movals~published in 1'785. The irnportance and value o£ the great thinker's exposition of the Science of Right, both as regards the fundamental Principles of his own Practical Philosophy and the general interest of the Philosophy of Law, were at once recognised. A second Edition, enlarged by an 1 Rechtslehre. It appeared soon after Michaelmas 1796, but with the year 1797 on the title-page. This has given rise to some confusion regarding the date of the first Edition, which is now usually quoteri as 1796-7. (Schubert, Kant's Werke, Bd. ix. viii., and Biographie, p. 145.) * Die Metaphysik der Sitten. Erster Theil. Metaphysische Anfangs- gründe der Rechtslehre. Köriigsberg, 1797. 4 Grundlegung zur Metaphysik der Sitten. Translated by Willich (1798), Semple (1836), and Abbott (1873). vi KANT'S PHILOSOPHY OF LAtK TRAXSLATOR'S PREFACE. vii Appendix, containing Supplementary Explanations of the and with it he virtually brouglit his activity as a master Principles of Right, appeared in 1'798? The work has of thought to a close? It fittingly crowned the, rich since then been several times reproduced by itself, as practical period of his later philosophical teaching, and well as incorporated in all fhe complete editions of he shed into it the last effort of his energy of thought.
    [Show full text]