What type of feedback would you like to send?
Abstract: This paper reintroduces a detailed engagement with Max Weber's highly influential essay, "'Objectivity' in Social Science and Social Policy" (1904). It does so by analysing that essay in detail and by applying the insights extracted from it to offer a sketch of a theory of evidence-based normative design. The problem for such a theory is the efficacy of norms - i.e. the maximisation of their observance. The method for the theory is that of a historically-based analysis of the relationship between the operation of cognition and institutional conditions. Thus, a presupposition of the analysis is that that relationship is always a relevant factor in achieving the aim of maximising the observance of norms. The theory is discussed by reference to the design of norms for interpreting statutes.
Weber, 'Objectivity', in Social Science and Social Policy, Norms, Efficacy, Statutory Interpretation, Institutional conditions
Abstract: This paper analyses two methods commonly used to understand legal language: deontic logic and the analysis of concepts taken as fundamental for any one or more areas of the law (sometimes called the philosophical foundations of law project). In doing so I introduce what I call the phenomenon of linguistic regress, and I do so in order to show why and how these methods necessarily fail as theories of legal language. I argue, in short, that any form of content-determination of concepts or norms fails as a method for understanding legal language because of the phenomenon of linguistic regress. Given the failure of these two methods, I argue that legal theorists should instead adopt an approach that focuses on explaining the community-based use of commonly-recurring terms and phrases found in legal language - a use, furthermore, that is most commonly exercised by legal experts (of varying degrees of skills), operating in different and interacting contexts of expertise (judicial, legislative and scholarly), and more broadly, as members of a legal community not impervious to influence from other kinds of communities.
Language, deontic logic, conceptual analysis, legal theory, descriptive regressive, community-based use
Abstract: This paper examines the status and role of modes of explanation of behavior in contemporary legal theory. It does so by reference to the criticism made by Sundram Soosay of the dominance of the conscious and deliberative mode of explanation in the work of Joseph Raz, H.L.A. Hart and Ronald Dworkin. Soosay's criticism is discussed and evaluated by reference to a reading of these three theorists. I argue for a pluralist and pragmatic approach to modes of explanations of behavior, as opposed to one that conceives of representations of behavior as capable of offering true and verifiable descriptions of human nature. I illustrate the value of such pluralism and pragmatism by reference to Institutions of Law, the most recent work by Neil MacCormick. Ultimately, I call for a closer engagement by legal theorists with the issues taken up by the philosophy of the social sciences, and in particular, on its treatment of the question of the status and role of modes of explanation of behavior for the purpose of proposing social scientific hypotheses.
Explanation, behaviour, law, legal theory, pluralism, pragmatism, rationality, agency, consciousness, deliberation, decision-making
Abstract: This paper argues that the primary task of legal theory should be to pursue the responsiveness of a legal system to the moral life of a community. However, the pursuit of such an aim cannot appeal merely or even dominantly to the short-term motivational structures of individuals - as is dominantly the case in contemporary legal theory. What is required, instead, is appeal to long-term learning structures. This paper introduces the notion of long-term learning structures by reference to the work of John Dewey. It supplements Dewey's account by reference to two further principles of moral education: first, developing the recognition of vulnerability, and second, fostering respect for difference. Having provided an account of moral education, the paper goes on to consider its relationship to the pursuit of a socially just legal system. The paper does so primarily by reference to the work of Philip Selznick and Roger Cotterrell, calling in essence for the revival of pedagogically-informed communitarian jurisprudence.
Communitarian jurisprudence, legal theory, moral education, motivation, pedagogy, reasons for action, social justice
Abstract: This paper argues that in focusing on the problem of whether, and if so how, rules of law exist, legal theory endangers its capacity to both account for and evaluate how law accompanies a community in its adaptation to emerging social problems. Two classical works of legal theory are analysed, Hans Kelsen's Pure Theory of Law and HLA Hart's The Concept of Law, with a view to revealing the weaknesses of a legal theoretical approach aimed at describing the conditions under which norms or rules exist as laws. An alternative is offered in the name of the concept of qualifiers. This concept is elaborated upon by reference to the work of GEM Anscombe, Bernard Jackson and Geoffrey Samuel, and an attempt is made to show how the concept of qualifiers can refocus the emphasis of legal theory on the more or less successful use of legal language by members of a legal community for the purposes of proposing legal solutions to social problems. Ultimately, the concept of qualifiers offers not only a different way of thinking about legal language, but also a different way of thinking about the limited role of language in theorising about any sort of phenomenon, including law.
Legal ontology, Hart, Kelsen, rules, language use, meaning, community
Abstract: This paper argues for the adoption of pluralist pragmatism about concepts of law. The first part of the paper introduces the argument by reference to the debate over conceptual prescriptivism in the contemporary literature on the methodology of legal theory. The second part of the paper offers a method for recognising pluralism in traditions of jurisprudential inquiry: it does so on the basis of the use of modes of objectification that can be said to underwrite the construction of concepts of law. A number of examples of such modes are offered, with the focus thereafter being on two such modes: on the one hand, the explanatory paradigm of reason; and on the other hand, the explanatory paradigm of cause. A map of traditions of jurisprudential inquiry is sketched on the basis of these two modes. The third part of the paper goes on to show how combining the prescriptive resources that follow from the two traditions of jurisprudential inquiry classified in such a manner makes our response to certain practical context more robust. The four practical contexts are: the exercise of judicial behaviour; the structure of international law; legal education; and, legal scholarship. It is only by adopting the pluralist pragmatism espoused by the ethics of legal theory that we can avoid theoretical insularity (the belief that any one theoretical picture is capable of corresponding truthfully to the world) and theoretical imperialism (the belief that any one theoretical picture can be used as a foundation for a prescriptive agenda).
Legal theory, conceptual prescriptivism, conceptual pluralism, conceptual pragmatism, concepts of law, methodology
Abstract: This paper examines the problem of normativity in contemporary legal theory, paying particular attention to the relationship between the conception of the problem and related explanations of behaviour. The first part of the paper shows how the problem of normativity, conceived of as a matter of determining how legal norms function as reasons for action, is linked to an explanation of behaviour that is posited or assumed to be capable of being guided by reasons. More importantly for the purposes of the paper, the first part also shows the problem of normativity plays a certain function (called here a 'thought-context') thanks to which a theorist can, e.g., evaluate lawmaking and adjudication practices (Timothy Endicott); scrutinise the reasonabless of norms (John Finnis); critically examine the circumstances under which law is authoritative (Joseph Raz); or make distinctions between certain kinds of phenomena that influence conduct (H.L.A. Hart). The second part of the paper offers the sketch of an alternative relationship between a conception of the problem of normativity and an explanation of behaviour. The general aim of the paper is to endorse an engagement with the works of others that pays attention to the relationship between problems and explanations, and to the implications of any one way of drawing that relationship for images and practices of theorising.
normativity, reasons, Hart, Raz, Endicott, Finnis, metatheory
Abstract: This paper argues that legal theorists should give up the pursuit of determining the mode of law's existence - whether in the form of rules, as in HLA Hart, or in the form of norms, as in Hans Kelsen. Attempting to determine the mode of law's existence results in two mistakes: first, it presupposes the possibility of content-determination (of rules or norms), resulting in a more (Kelsen) or less (Hart) stringent reference theory of meaning; second, it presupposes unproblematic access to a sphere of brute reality upon which the existence of rules or norms is said to supervene. Both mistakes are illustrated by reference to a reading of Hans Kelsen's Pure Theory of Law and HLA Hart's The Concept of Law. Two alternatives for legal theory are offered: first, meta-analysis, as exemplified in the paper, whereby a theorist considers the puzzles and difficulties of taking a certain theoretical aim (in this paper, that of determining the mode of law's existence) and talking about it in specific ways (in this paper, using existence talk); and second, an ontology-free legal theory the task of which is to pursue the improvement of the role that legal work plays in the protection of the moral quality of the lives of individuals and communities. The foundations of an ontology-free legal theory are illustrated by reference to the pragmatic pluralism of Hilary Putnam's approach to ethics in his Ethics without Ontology.
Kelsen, Hart, Ontology, Legal Theory, Content determination, legal work, responsiveness, rules, norms
Abstract: This paper argues that jurisprudential inquiries can be profitably analysed as oriented towards either the explanatory paradigm of discourse or the explanatory paradigm of tradition. The first part of the paper offers a map of the discipline of jurisprudence in accordance with the above two different explanatory orientations. It does so at two levels: 1) ontological (pictures of law); and 2) epistemological (pictures of legal work). In the second part the paper, the tension and interaction between the explanatory paradigms of discourse and tradition in the work of five different theorists is considered: 1) Elizabeth Mertz's anthropological linguistics; 2) Nicola Lacey's revision of the relationship between analytical jurisprudence and descriptive sociology; 3) Roger Cotterrell's call for a sociology of legal ideas; 4) Neil MacCormick's concept of law as institutionalised normative order; and 5) Patrick Glenn's notion of a legal tradition. Finally, in the third part, the paper addresses certain implications of the analysis of jurisprudential inquiries by reference to the above two explanatory orientations for comparative and international legal scholarship. The two explanatory orientations (tradition and discourse) are offered as one of many paradigms thanks to which one can recognise the limitations of any one picture of law or legal work. At the metaphilosophical level, the analysis of the paper indicates that there are three options available to jurisprudence, i.e., 1) seek to provide a picture of law or legal work on the basis of one explanatory orientation; 2) maintain pluralism about concepts of law or legal work given their limitations in light of their explanatory orientations; or 3) attempt to combine the elements of both explanatory paradigms in a unified account. The paper argues that insofar as jurisprudence seeks to provide normative resources for responses to certain challenges in the public sphere, it ought to go for option two, namely, for maintaining pluralism about concepts of law and legal work.
Tradition, discourse, jurisprudence, legal theory, sociology, language, pluralism, metaphilosophy
Abstract: The aim of this paper is to illustrate, in some detail, the phenomenon of chess expertise and the making of errors by chess experts. In doing so, this paper also aims to reveal the close relationship between expertise and error making in chess. Finally, the paper aims to show how understanding that integral relationship can assist in the creation of pedagogical methods that can minimize error making, while also maximizing expertise. The analysis may provide some assistance in the development of our understanding of expert epistemologies amongst the professions, and for reflection about the appropriateness of current pedagogical methods utilized in the education of those professions.
Decision making, pattern recognition, expertise, errors, error-making, perception, chess, reasoning
Abstract: This paper offers a personal reflection on the value of legal scholarship. It is set in the context of the contemporary literature on the state of contemporary legal scholarship. The paper argues that the state of contemporary legal scholarship is too often evaluated on the exclusive basis of the style and content of legal scholarly works. The challenge that this paper seeks to meet is to provide a broader and richer platform upon which legal scholarship can and should be evaluated. That challenge is met by offering a brief account of the five responsibilities of legal scholarship (reading, writing, teaching, collegiality, and engagement). These five responsibilities are designed to provide a framework for imagining the institutional life of a legal scholar. The paper argues that it is that full life, rather than merely the scholarly output, that should necessarily be included in any assessment of the state of contemporary legal scholarship.
Institutional life, legal methodology, legal scholarship
Abstract: This paper argues that the development of ethical education in law schools ought not to be restricted to the use of textual resources. In the first part of the paper, the continuing dominance of text as the object of analysis in legal theory, legal scholarship and legal practice is illustrated. The dangerous implications of this continuing dominance on the capacity to see and recognise the great variety and depth of suffering and vulnerability is also discussed. It is argued that recourse ought to be had to those traditions of moral philosophy that emphasise the importance of cultivating vision as a form of moral discipline - a discipline, in turn, that can benefit a great deal from the use of non-textual resources, and in particular, from both the appreciation of and involvement in the visual and movement-based arts. In the second part of the paper the treatment of ethical education in the recent Carnegie Foundation for the Advancement of Teaching Report on Educating Lawyers is discussed. It is argued that we ought not to subsume the development of ethical education under the canopy of professionalism - a canopy already saturated with text, both in the form of the substantive and procedural law that is expected to be applied, and in the form of the evaluation of professional conduct in accordance with the relevant professional code. Finally, in the third part of the paper, a number of policy recommendations are made. Ultimately, the paper calls for an ethical education that combines both textual and non-textual resources. It is only via such a combination that law schools can provide sufficient opportunities for the range of ethical experiences that are required in order to enhance the effective development of the ethical imagination in law students.
Legal education, text, discourse, art, dance, moral vision, Carnegie Report
Abstract: This paper argues that ought-talk and is-talk - corresponding, in the context of legal theorising, to that of normative and descriptive jurisprudence, respectively - are not radically different kinds of theoretical activities. Rather, both offer ways of talking - that, ultimately, offer ways of seeing - which can contribute to the evaluation of different features of a certain activity. Seeing both is-talk and ought-talk as partners, rather than opponents, is part of what I call here the ethics of legal theory - i.e., the fight against theoretical insularity and theoretical imperialism. This paper argues that the more difficult and important question is not whether inferences can properly be made between the realm of the ought and the realm of the is (or, as it is sometimes articulated, the realm of reasons and the realm of causes, respectively), but rather the relationship between the peculiar requirements of theory, on the one hand, and practice on the other. The requirements of theory are radically different to the requirements of practice, and although theoretical insularity is avoided when we discipline theory by practice (by considering the practical utility of theoretical pictures), we cannot forget that theoretical pictures can only ever contribute imperfectly to the improvement of practical ends. When we do forget the latter we fall foul of what call theoretical imperialism. The ethics of theory demands that we attempt to steer the difficult middle course between the Charybdis of theoretical insularity and the Scylla of theoretical imperialism. The paper goes on to illustrate how the ethics of legal theory can operate to inform theoretical reflection in the following four kinds of practical contexts: first, the exercise of judicial power; second, the tension between unity and diversity in the international legal order; third, legal education; and fourth, legal scholarship.
Legal theory, metaphilosophy, practice, judicial power, international law, legal education, legal scholarship
Abstract: Understanding the nature of social normativity is important for contemporary analytical legal philosophy. For one, such an account may help articulate the form of the social conventions that are said to be at the foundations of the rule of recognition. This paper argues that accounts of the nature of social normativity ought not to be based on the idea that social life is governed or regulated by norms. Rather, accounts of social normativity ought to be centred on the notion of how persons learn (and unlearn) what they come to anticipate. The first part of the paper offers some illustrations of such an account. The second part of the paper shows how social normativity so conceived can avoid some of the problems that bedevil the currently dominant view (or assumption) that social life is regulated or governed by norms. These problems include, first, difficulties associated with how much deliberative reflection and awareness to demand from participants in social life (accounts of social normativity are often said to be unrealistic or hyper-committal for demanding too much of both, which is not a criticism that can be made of the account offered here); and second, difficulties caused by assuming or positing that there can be a fact of the matter, unmediated by the evaluation or judgement of persons, as to whether or not some action is correct or incorrect on the basis that it merely conforms (or not, as the case may be) to some norm or set of norms (which is not an assumption made or a position endorsed by the account offered here). The paper does not aim to provide a comprehensive statement of the alternative view of social normativity. Rather, it seeks merely to introduce it and to suggest some of the ways in which it improves on the currently dominant view.
Normativity, social norms, order, convention, legal theory
Abstract: This paper argues that the contemporary treatment within moral, political and legal philosophy of the issue of the effective and proper constraint (and, ultimately, also, direction) of power suffers from an absence of engagement with the following question: what picture of behavior - of those in power - should we adopt in order to consider how it might be constrained and directed? It is argued that the absence of engagement with this question can be explained by the dominance of the rationalization of behavior, and the concomitant methodology of scrutinizing the role of rules in excerpts of short-term reasoning. The paper offers an overview of sources that can assist in providing an alternative picture of behavior. The paper is organized into three parts: the first considers the long-term development of perceptual and kinetic know-how; the second examines the social, institutional and community-based location of that know-how; and the third considers how the sources of the first two parts can help us in the necessary transition from an over-emphasis on legal language, to an emphasis on legal work. Combining all the elements together, legal work is defined as the institutional emergence of perceptual and kinetic know-how that necessarily accompanies the constraint - amassing and guidance - giving use of legal language. The emphasis on this picture of legal work can provide us with the tools that will not only allow us to design institutions and the resources used by legal officials to constrain the power exercised by them more effectively, but it will also allow us to consider what moral capacities we would like legal work to be informed by, and, equally, what kind moral institutional ways of life we might strive for. Those moral capacities and moral institutional ways of life, in turn, will have to be supplemented by a theory of social justice, the appropriate beginning of which is an understanding of how we can learn to see the great variety and pervasiveness of suffering and vulnerability. Only once we understand how we come to see suffering and vulnerability, can we consider how it will be appropriate to respond to it, i.e. to respond by considering what moral capacities are required to be exercised by officials, and how we might design our institutions so that they enhance moral institutional ways of life.
Power, Behaviour, Legal Officials, Constraint, Direction, Reasoning, Rationalisation, Peceptual and Kinetic Know-How, Institutions, Communities, Suffering
Abstract: This paper argues against two extreme attitudes to the history of a discipline: on the one hand, ignorance and dismissiveness; and on the other hand, canonisation. The ever-present challenge is to find a balance between these two extremes. The paper attempts to walk the middle way by offering an alternative history of theories of law. It does so by revealing the basic characteristics of theories of law that tend towards either the explanatory paradigm of discourse or of tradition. Discourse-oriented theories tend to give explanatory priority to autonomous systems or orders of already articulated rules or norms. They also tend to conceptualise behaviour from the first person ex ante perspective, and tend to require explicit deliberation, even at the level of social conventions. The political value behind these theories tends to be the imposition of social order from above and the constraint of the power of officials by the rule of law. Tradition-oriented theories tend to give explanatory priority to the long-term activities of persons interacting in certain distinct contexts (such as various kinds of communities and institutions). They tend to conceptualise behaviour as consisting of embodied, though not completely unreflective, learning, resulting in the formation of certain skills and propensities. They also tend to focus on the transmission of social knowledge via the involvement of persons in certain contexts of interaction. The political value behind these theories is that of responsiveness and attention to the needs of the disadvantaged. The paper does not set out to evaluate the strengths or weaknesses of either explanatory paradigm. Rather, the aim is to offer an alternative history of the discipline of jurisprudence, with the hope that it encourages the construction of other such histories, thereby opening up possibilities for finding new insights in the works of the past. If, as it is argued, the formation of a jurisprudential orientation is at least partly dependent on how a legal theorist understands the history of jurisprudence, then offering alternative ways of seeing that history also carries with it the potential for renewing the discipline.
Legal theory, history, discourse, tradition, rules, norms, conventions
Abstract: This paper argues that the contemporary practice of moral philosophy (particularly in the examples it relies on) and the contemporary practice of legal education both tend to ignore, dismiss or exclude that which is here called 'moral experience.' Moral experience is here defined (non-exhaustively) to be: 1) that which helps us face up to, instead of hide away from, our mortality and fallibility; 2) that which helps us experience radical uncertainty about who we are, where we have been, and where we will be, and about what has happened, is happening and will happen; 3) that which helps us experience the insight that we are not in control of all that which influences us; 4) that which helps us experience the infinite (for us) complexity of others and the world; 5) that which helps us to notice hitherto-invisible (to us) forms of suffering and vulnerability; and 6) that which helps us to widen the scope of, or sometimes change, that which we find valuable and care about. Moral experience is not designed to replace traditions of moral inquiry (such as virtue ethics or utilitarianism), and it is not designed to help us meet the demands of moral life. Rather, it is designed to help us avoid underestimating the demands of moral life. Following a discussion of moral experience in the first part of the paper, the second part turns to offer some activities and resources thanks to which law schools can enable moral experience for both their students and their staff. In doing so, the second part of the paper draws on research undertaken as part of the AHRC Beyond Text in Legal Education project at the School of Law, University of Edinburgh. It also draws on the author's own research as part of a pedagogical project entitled Unnatural Exercises.
moral education, moral experience, legal education, moral uncertainty
Abstract: This paper argues that concepts of legality in legal theory can be profitably understood as being underwritten by modes of spatio-temporal objectification. In the first part of the paper, a scheme of such modes is provided, and a map of jurisprudential inquiries is thereby offered. In the second part of the paper, two concepts of legality - underwritten by two different modes of spatio-temporal objectification - are analysed. The analysis shows how both concepts of legality lead to different sets of prescriptive resources as to the evaluation and design of legal systems. Finally, it is argued that the response of legal theory to practical challenges within the public sphere cannot afford to be based on any one concept of legality. Rather, we need to be pluralists about concepts of legality, recognising the limitations of any one such concept - represented, in this paper, by way of spatio-temporal objectification that underwrites those concepts. A crisis in legal theory cannot be claimed on the basis of any alleged lack of correspondence between any one concept of legality and reality. On the contrary, a crisis will ensue to the extent that legal theory becomes dominated by theoretical imperialism, namely, by the belief that any one concept of legality is capable of capturing the world as it is, and, therefore, also capable of standing as a foundation for a prescriptive agenda. The vice of theoretical imperialism induces anxiety over the identity of a discipline, and leads to a quelling of the very theoretical diversity that is required for an ethical response to the specific complexity of the public sphere.
Legality, spatio-temporality, objectification, legal theory, conceptual pluralism, public sphere
Abstract: This paper argues that education, at its best, is based on a combination of learning and unlearning. Learning involves the development of sensory intelligence, a dynamic form of knowledge that is anticipatory and orientating. This sensory intelligence is always stylised, i.e., it consists in relations formed, over a certain period of time, by the senses with specific features of the environment. Unlearning, on the other hand, is the process of challenging this stylised sensory intelligence. These styles of seeing (and experiencing) are challenged by encouraging and facilitating different kinds of relations with these specific (or other) features of the environment. The paper is structured into three parts. The first part illustrates the principal themes of the paper by working through a number of examples of seeing (and experiencing). The second part elaborates and organises these themes into the above two concepts of learning and unlearning. The third part then applies the model of education (i.e., the combination of learning and unlearning) to the legal academy by focusing on two commonly engaged in activities: first, reading legal texts; and second, providing (hypothetical) legal advice.
legal education, sensory intelligence, dynamic knowledge, reading legal texts, legal advice, clinical legal education
Abstract: Every description contains within it a qualifier that allows us to avoid the problem of descriptive regress, and thus allows us to use the description for various purposes. Descriptive regress occurs because no one description can be understood without referring to further descriptions, which themselves require unpacking by reference to further descriptions ad infinitum. There are no fundamental descriptions no descriptions that attain and keep some privileged ontological status. The qualifier works by invoking the normal circumstances in which the description obtains. It is impossible to foresee and describe in advance all the circumstances that would not be normal and that would reveal to us when the description could not obtain. It is our common sense the sense we develop as members of communities, and a sense sometimes narrowed and specialized in certain forms of life of what set of normal circumstances are implied into the description that allows us to use descriptions for various purposes (e.g. for describing circumstances in which some normative consequence should follow if the description obtains). This theory of descriptions is particularly relevant to the analysis of the role of descriptions of behavior and behavioral concepts in law. Law, in order to enable the regulation and evaluation of human behavior, cannot do without behavioral foundations criteria for evaluation of behavior are always based on certain descriptions of behavior and behavioral concepts. The theory of descriptions developed explains how descriptions of behavior function, namely, their utility relies on the legal community's common sense of the qualifiers attaching to descriptions of behavior. But that theory also has a reformative agenda: we should not think that any one description or any one behavioral concept such as that of intentionality can do all the work for us, in every area of the law, and in respect of every single social phenomenon. We need, in other words, to rethink the criteria for the evaluation of behavior on the basis of this theory of descriptions: i.e. on both the power and the limitations of descriptions of behavior.
Private law, descriptions, behaviour, behavioural concept, community common sense
Abstract: This paper introduces the notion of responsiveness and the role it might play in moral, political and legal philosophy. The paper has four parts. The first considers the meaning of the call for making room for responsiveness, and discusses three potential bearers of responsiveness: 1) individuals; 2) institutions; and 3) practices. The second part of the paper discusses three possible objects of responsiveness (i.e., three possible answers to the question, "responsiveness to what?"): 1) the experience of moral emotions; 2) the perception of values; and 3) thicker concepts, such as needs, suffering, vulnerability and dignity. The third part of the paper considers the inter-appropriateness of bearers and objects of responsiveness, i.e., it considers the relationship between the theoretical project of making room for responsiveness and the theoretical project of answering the "what" question. Finally, the fourth part briefly addresses an assumption made in the first part of the paper, namely, that there always and already exist constraints - an assumption that allows the philosophy of responsiveneness to avoid either presupposing a state of nature or aiming at an ideal theory (e.g., of the good life or of just institutions). Apart from attempting to analyse the structure of the notion of responsiveness and what it may be capable of offering moral, political and legal philosophy, the paper argues that a philosophy of responsiveness can also help us imagine a responsive philosophy.
responsiveness, individuals, institutions, practices, emotions, values, needs, suffering, vulnerability, dignity, metatheory
Abstract: Some accounts of social life give explanatory emphasis to normative requirements themselves. This paper resists such a tendency. It is argued that when normative requirements themselves are given explanatory priority the concept of social normativity tends to be situated between these requirements on the one hand, and the practice of evaluating conduct in accordance with those requirements. Normativity so situated is then required to bridge the justificatory gap between the two. It is further illustrated how such an explanatory structure is designed to avoid questions concerning the legitimacy of the exercise of power. Making room for the silence of social normativity involves paying theoretical attention to the time before the first instance of a problematisation of a certain way of doing, which is thereafter commonly described, under the benefit of hindsight, as a deviation from a rule that was implicit all along, and merely made explicit. Instead of believing or assuming that we are able to achieve mastery and control over the practices we engage in, we ought to recognise, instead, that persons are always and already, inevitably and necessarily, emotionally involved in certain common or joint objects that are, at any one time, invisible to them. Given the pervasiveness, tenacity and, sometimes, violence of the silence of social normativity, the vital question becomes: how can we educate future generations such that they are both capable and willing to reflect on the consequences of their practices?
Norms, Social Norms, Normativity, Normative Requirements
Abstract: This paper argues against the continuing domination, within legal theory, of the ambition to determine the mode of law's existence and our access to it. It illustrates the problems with such an approach via a close reading of George Pavlakos' recent work, Our Knowledge of the Law (2007). It seeks to replace the dominance of that ambition with the ethics of legal theory, i.e., the avoidance of both theoretical insularity and theoretical imperialism. Theoretical insularity ensues when we come to think that any one of our theoretical pictures (of law, legal systems and legal work) provides us with access to that which exists, or how we really are, thereby missing the utility of other theoretical pictures. We come to see the utility of other theoretical pictures when we subject them to the scrutiny of practical contexts, but in doing so, we should not be tempted to think that any one theoretical picture can come to govern what we ought to do in any specific practical context (should we do so, we fall foul of theoretical imperialism).
Legal epistemology, legal ontology, method, metaphilosophy, practice
Abstract: This essay argues that the practical reason approach to the study of social conventions (and social normativity more generally) fails to adequately account for the fluency of social action in environments that we experience as familiar. The practical reason approach, articulated most recently in Andrei Marmor’s Social Conventions: From Language to Law (2009) does help us, though not wholly adequately, to understand how we tend to react to, and experience, unfamiliar situations or unfamiliar behaviours, i.e., those situations in which a certain practice becomes problematic or is problematised, or where we are obliged to, or moved to, justify or deliberate. The reason why the practical reason approach is not wholly adequate when it comes to understanding unfamiliar situations or unfamiliar behaviours is that it tends to subsume the unfamiliar under the familiar, i.e., it tends to negatively evaluate anything that is deemed to be not in accordance with the rules and reasons already familiar to the observer. This excludes the possibility of the observer having to transform himself or herself, and thus change what is familiar to him or her.
conventions, norms, normativity, reasons, rules, rule-following, values
Abstract: This paper argues that what is at stake in the debate over the nature of social normativity is the understanding of the significance of the tension between repetition (and reinforcement of it) and change (and openness to it). The first and second parts of the paper offer illustrations of the pervasiveness and tenacity of reinforcement, as well as the rarity, but also urgent need for, openness. The paper also argues that the most dominant reason as to why the above-mentioned tension has received little attention in the literature is because of the focus on the analysis of the nature and status of orders (composed of normative requirements), which are assumed or are posited to regulate or govern social life (and thereby reified). The paper argues that when we resist reification of normative orders and see these orders, instead, as projections that enable human beings to achieve certain aims, we open the door to understanding the above-mentioned tension and its significance. Further, when we see normative orders as projections, we can also understand that normative requirements are all capable of being distinguished only in degree, and not in kind. In other words, what we ordinarily think of as the normal and the normative form a continuum (rather than a gap) ranging from, on the one hand, that which we would be surprised or enraged to see as being doubted or undermined, to, on the other hand, that which is the subject of much debate and disagreement.
Social normativity, normative requirements, norms, laws, conventions, practices, repetition, change, order
Abstract: This paper offers some resources for the development of moral sensitivity in law schools and law firms. It does so, first, on the basis of a picture of legal life, which draws on the embodied-connectionist strand in cognitive science. Legal life requires role-differentiated behaviour, and immersion in these roles, and associated tasks, has the consequence that persons are oriented to notice only certain things rather than others (where those things will sometimes be morally relevant things to notice). Further, the lawyer-client relationship is one characterised by the exercise of dominance, control and manipulation (by the lawyer) of a client dependent on the exercise of the lawyer's expertise. Moral education in law schools and law firms must help alleviate the problematic effects of these features of legal life on the moral sensitivity of persons. It can do so by the education of attention and encounter. Both terms are discussed and, by drawing on the Beyond Text in Legal Education project at the University of Edinburgh, associated pedagogical activities are described. Finally, the activities proposed, and their policy implications, are considered by reference to the wider concerns of both tertiary and professional legal education.
legal education, moral education, moral sensitivity, attention, encounter, emodiment, connectionism, legal knowledge
Abstract: This paper offers an account of two political traditions. The first tradition is that of allegiance to abstract principles and procedures; the second is that of responsiveness to the needs of persons and communities. The first two parts of the paper describe some of the basic features of each tradition, while also paying attention to the problems and difficulties within them. The third part of the paper shows how we can see the same tension, i.e., between allegiance and responsiveness, at play in the practice of public philosophy. The paper argues for the importance of maintaining a tension between the two traditions. Ultimately, the paper calls for more attention to be paid to the relationship between, on the one hand, how we understand law and pursue justice, and, on the other, how we practice public philosophy.
Law, Justice, Public Philosophy, Tradition, Needs, Responsiveness
Abstract: This paper offers a discussion, with examples and illustrations from both academia and the arts, of thoughtfulness, i.e., roughly, the ability and willingness to widen the scope of (or, sometimes, change) that which one finds insightful and that which one finds valuable. The paper argues that the exercise of thoughtfulness can help us avoid underestimating the demands of moral and political life. It does so because, unlike other approaches to the good (individual or communal), it does not neglect to acknowledge the openness of the future, i.e., the sense in which we cannot foresee who and what will demand our care and concern. Following a general discussion of thoughtfulness, the paper turns to consider implications for the image and practice of moral and political philosophy.
thoughtfulness, norms, normative requirements, morality, politics
Abstract: This paper argues that a large part, if not the foundation, of social normativity consists in the development and exercise of a sense of appropriateness that is aesthetic, affective and corporeal in character. The paper begins with three examples of the exercise of this sense of appropriateness in three expert domains: speaking a language, playing chess and giving legal advice. It then elaborates on the aesthetic, affective and corporeal dimensions of these examples. Finally, it extends this picture from expert domains to social life more generally. The aim of the paper is to avoid over-intellectualising social normativity, which, it is argued, occurs when we understand the concept of normativity to entail the possibility of determining, in advance, what is appropriate to do. The methodological claim of the paper is that in order to avoid over-intellectualising social normativity, we need to pay more attention to the experience and appearance of appropriateness in specific social contexts.
normativity, society, emotion, embodiment, aesthetics, norms
Abstract: This paper offers examples of the experience of two varieties of normativity: open and closed. Closed normativity is the claim or assumption that what is appropriate and inappropriate, at any one time and space (or at all times and spaces), and for any one activity (or for all activities), can be and has been settled in advanced. Open normativity is the denial of this claim or assumption. The paper also provides examples of complex/mixed normativity, i.e., situations in which one may experience both open and closed normativity. The paper then illustrates the significance of this approach to normativity for our understanding of action, freedom and the practice of theory.
normativity, norms, appropriateness, correctness, action, freedom, metatheory
Abstract: This paper argues that changes in philosophical practice will be most revolutionary not in the exercise of creativity and innovation in the content and substance of philosophical arguments - although these are not only important but also, to some extent, necessary for the survival of philosophy - but rather, in changes made: 1) to the philosophical environment and its tools; 2) to the kinds of bodies developed and expressed in those environments and in the course of using those tools; or 3) to the styles, manners and mechanics of philosophical thinking. The introduction of these changes is what we should expect from the exercise of the imagination. To expect anything less would be to place in danger the ethical and political significance of thoughtfulness, not only in the context of the practice of philosophy, but also more broadly for the ethical and political health of the global community.
Metaphilosophy, philosophy, environment, body, change, revolution, thoughtfulness, imagination
Abstract: This paper prepares the ground for a different kind of normativity, i.e., most importantly, a normativity that does not assert the intractability of its own order, but that remains open to being transformed by difference. The paper first outlines several dogmas that must be avoided in order to open the possibility of this different kind of normativity. These include: Not assuming or positing that what is appropriate or inappropriate can be determined in advance; not utilizing an explanatory structure that first posits the existence of a norm and then considers how persons are moved by it, sensitive to it, or socialized by it; not equating freedom with the possibility of making mistakes (or violating norms); recognizing that the alleged implicitness of some norms is best understood as a claim over the future, rather than a level of social reality; avoiding becoming bewitched by certain stylisations of examples in which students or strangers are taught or trained in the ways of the discipline or community; and avoiding focusing only, or even dominantly, on the order, stability and repetition of social life. The paper then provides several beginnings, or novel examples, in which one’s intuition concerning a different kind of normativity can take shape: e.g., the paper replaces the space of reasons with the space of emotions. The third part of the paper presents four conceptual and methodological principles that can help us understand this different kind of normativity: first, paying attention to the experience and appearance of appropriateness; second, paying attention to the social life of normative discourse and feelings; third, prioritizing the ongoing, enacted nature of human conduct; and fourth, recognizing that pursuing a different kind of normativity is tantamount to adopting theory as self-transformation, i.e., theory not as a matter of elucidating conditions under which something can count as an instance of a general or evaluative category, but rather, as the training of the ability and willingness to change oneself and one’s own theoretical practices.
normativity, norms, implicit norms, rule-following, appropriateness, correctness
Abstract: This paper argues that we ought to conceive of normativity as a matter of the exercise of fallible abilities that make a fragile pact with the future. To conceive normativity in this fashion we also need to change our image and practice of thinking, i.e., we need to endorse thoughtfulness, which consists in the ability and willingness to widen the scope (or, sometimes, change) that which we find insightful. This approach to normativity, and this image and practice of thinking, is at odds with the dominant contemporary approach to normativity, which, it is argued here, is characterised by an attempt to play god, i.e., to create and play in artificial, fantasy worlds where we can know and master all there is to know, such that we can read off, or determine in advance, the appropriateness or correctness of future actions (or events, beliefs, etc). As long as we continue to play gods in our approach to normativity, we will continue to hide away from our limitations, including, most importantly, our fallibility, animality and mortality. When we hide away from our limitations in this way we radically underestimate the demands of moral and political life.
Normativity, mortality, animality, vulnerability, moral life, political life
Abstract: This paper argues against a conception of normativity that relies too heavily on the notions of guidance and compliance. The paper attempts to loosen the hold of these two concepts on our understanding of normativity, and in so doing to contribute to the pursuit of the following aims: first, to make us more aware of the role of the observer and the act of observation in the articulation of guidance and the assertion of compliance; second, to assist us in acknowledging the inescapable fragility of our practices of making sense of and evaluating others; and thirdly, to help us to see the need for a more socially robust account of normativity, an important part of which will be the analysis of the different dynamics of obligation, legitimation, justification, authority etc, in different kinds of relationships.
normativity, directives, compliance, guidance, intention, motivation, conformity
Abstract: This paper argues that we need to go beyond norms and normativity in the study of social life. The main purpose of the paper is to offer concepts and resources for a study of familiarity and estrangement, which, it is argued, is better placed (than a study of norms and normativity) to remind us, as we constantly need to be reminded, of one the most difficult things about living together, namely, how we understand the world of another person and with what attitude we approach all that which is unfamiliar to us.
norms, normativity, familiarity, estrangement, social theory, social philosophy
Abstract: This paper argues that we need two different models of normativity: one for understanding the fluency of social action, which characterises experiences of the familiar; and another for understanding how we cope with the unfamiliar. In the case of the first model, the paper proposes to understand such fluency on the basis of partnerships formed between a person’s sensory capacities and specific features of the environment. In the context of these partnerships we can speak of persons being able to perceive, immediately and non-inferentially, holistic qualities such as the elegance of a sentence, the gracefulness of a walk, the sadness of a melody, or the awkwardness of a certain move in chess. The language of appropriateness has no special status here: it is on a par with the above examples of aesthetic or affective terms. The second model of normativity, on the other hand, helps us to understand how persons cope with breakdowns in fluency. Typically, this coping takes the form of deliberation, evaluation and justification, and utilises a related family of concepts based on the idea that persons participate in rule-governed domains. This paper discusses these two different models of normativity, though it focuses on the first. It also raises two further issues of importance: first, the significance of the kind of attitude we adopt to an encounter with the unfamiliar; second, the possibility of self-induced de-familiarisation.
Normativity, rules, rule following, reasons, rationality, familiar, unfamiliar, social action, perception
Abstract: This paper offers a theory thanks to which, we argue, we can more appropriately evaluate and potentially improve the moral quality of work. There are three components to such a theory. The first two components, which we argue need to be integrated, are normative resources that appeal to two different behavioural capacities: first, the articulation of rules, appealing to the capacity of agents to deliberate about what they ought to do; second, the introduction of forms of institutional design, appealing to the capacity of agents to acquire habits and dispositions in certain social environments. The third and most important component is that of the infinity of suffering and vulnerability. This component has both a negative and a positive aspect. On the negative side, the component is designed to assist us in recognising the inevitable limitations of either normative resource or indeed any one integrated totality of normative resources (i.e., both rules and forms of institutional design). Those limitations consist in the narrowing of the domain of objects of value towards which workers are guided or oriented by either or both normative resources. On the positive side, the component encourages us to construct alternative normative resources on the basis of alternative forms of representation of suffering and vulnerability. In that respect, the specific policy proposal of this paper is that of the establishment of Community Forums, which are designed to offer a framework thanks to which some of the particularities of suffering and vulnerability within a specific community can be recognised and communicated in a multiplicity of ways, thereafter forming a resource for the development of policy with respect to the challenges facing that specific community. The second part of the paper applies this theory to consider the value and limitations of second-generation reforms in international economic institutions. The third part of the paper further considers the values and limitations of reforms for access to public goods and services in Nigeria.
International economic institutions, World Bank, WTO, Public Goods and Services, Responsiveness, Moral Climate
Abstract: This paper argues that the concerns and methodology of the recently completed Report of the International Law Commission (ILC) over the fragmentation of international law presuppose a particular way of understanding legal language which tends to separate the understanding of rules from their factual adaptability to certain recurring social problems faced within specific institutional contexts. The paper argues that separating rules from their factual adaptability focuses the analysis on surface coherence - coherence at the level of abstract terms and phrases. It is the argument of this paper that this presupposition is not warranted, and that the understanding of rules cannot be thus separated. An alternative model of the understanding of legal language is developed on the basis of the work of Bernard Jackson and Geoffrey Samuel. This is further supplemented by the approach to the study of institutional contexts in the recent work of Robert Summers and John Bell. Together, these resources can lead to the analysis of the deep coherence of the international legal order, that being one that prioritizes not the unity of that order, but its responsiveness. The ideal of responsive law is elaborated upon by reference to the work of Philip Selznick and Philippe Nonet. Finally, a different agenda for the ILC is offered on the basis of the methodology of deep coherence. The upshot is that the paper calls for a reorientation of international legal theory, away from concerns about 'the law itself' and towards an engagement with the responsiveness of legal work performed in international legal institutions.
International law, fragmentation, responsiveness, meaning, institution, International Court of Justice
© 2010 Social Science Electronic Publishing, Inc. All Rights Reserved. FAQ Terms of Use Privacy Policy Copyright This page was served by apollob 5 in 0.640 seconds.
