Law and Ideology: Critical Explorations
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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. -
Interpretive Overlap in Law and Literature
ARTICLES CONTRACT AS TEXT: INTERPRETIVE OVERLAP IN LAW AND LITERATURE MICHAEL L. BOYER* [L]egal practice is an exercise in interpretation. [W]e can improve our understanding of law by comparing legal interpretation with interpretation in other fields of knowledge, particularly literature.† Law is inextricably bound to language. Contracts and statutes are recorded in written form in order to capture the intent of the parties or legislative body in a concrete medium—words. The path that intentions travel on from the human mind to the written word is dark and winding. The final document sometimes fails to contain all the terms the parties intended. Some intentions are lost in the subtlety of language itself, others are misdirected by poor drafting, and many are either overlooked by the reader or not fully contemplated by the writer. Often words, or “signifiers,” carry with them excess baggage, i.e., more than is necessary for the sole communicative purpose for which parties employ them.1 Even seemingly self-explanatory terms, such as “Grade A Chicken,” can carry this excess baggage.2 Whether we ask what the terms in a contract or statute mean, what the intentions of the author were at the time, or whether extrinsic evidence may supplement the document, the answer inevitably includes interpretation. Interpretive acts have always been present in legal discourse, and various authorities have subjected legal interpretation to different * B.L.A., University of Alaska, Southeast; J.D., University of Oregon; Assistant Professor of Law Sciences, University of Alaska, Southeast. † Ronald Dworkin, Law as Interpretation, 60 TEX. L. REV. -
On Literature As Legal Authority
ON LITERATURE AS LEGAL AUTHORITY John M. DeStefano III* “This may prove a worse job than the windmills.” —Sancho Panza1 INTRODUCTION More than a half-century ago, the Kansas Supreme Court declared its independence from literature: “Fortunately,” Justice Burch wrote, “we are not required to base our opinion upon philology or the philosophy of the bards.”2 Unfortunately for Justice Burch, the bards still haunt many a judicial opinion. Literature is not unique in that respect; many forces extrinsic to law dictate the law’s development. Unprecedented events, scientific and historical discoveries,3 and changing cultural attitudes constantly test the limits of judicial ingenuity. The Supreme Court has made noteworthy nods to foreign law.4 The Seventh Circuit looks to economics for inspiration.5 It comes as no surprise, then, that American * J.D. Candidate, University of Arizona James E. Rogers College of Law, 2007. I am deeply grateful for time spent by others reading my drafts and making suggestions. Professor Kenney Hegland lent generous and crucial insights early on. Ginette Chapman, Jessica Tom, and Michael Catlett supervised and encouraged the initial draft. Matthew Clark, Josh Wood, Katherine DeStefano, and Naomi Jorgensen provided detailed work as the piece went to press. Dr. Andres Reyes provided valuable last-minute Latin consultation. As for the selfless toilers who checked all the citations in service of a more perfect law review, remember VIRGIL, AENEID I.203: Forsan et haec olim meminisse iuvabit. All errors remain the fault of the Author (and the reader’s point of view). 1. MIGUEL DE CERVANTES SAAVEDRA, DON QUIXOTE DE LA MANCHA 74 (Charles Jarvis trans., Oxford Univ. -
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. -
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"). -
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. -
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. -
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. -
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. -
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. -
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. -
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.