This second edition has been revised to provide additional coherence to the themes examined and introduces sections on topical issues, for example the chapter on Utilitarianism now includes a discussion on law and economics.

The essay replies to comments by Finnis, Gardner and Endicott, on my book, Law as a Moral Idea. It is questioned whether Finnis is right to suggest that governance by law is a requirement of justice. It is suggested that Hart's positivism may have rested upon an unduly private conception of morality. Gardner's suggestion that Law as a Moral Idea falsely manufactures disagreement with Hart is rejected, principally by pointing out that Gardner focuses upon only one issue, where the book (...) already acknowledges that Hart might conceivably agree, and ignores other issues where the disagreement with Hart seems indisputable. In response to Endicott, it is acknowledged that 'politics' could be understood as a moral idea comparable to the idea of 'law', but denied that this robs either thesis of interest. The nature of doctrinal reasoning and law's justificatory force is then discussed. (shrink)

A theory of syllogistic reasoning is proposed, derived from the medieval doctrine of 'distribution of terms'. This doctrine may or may not furnish an adequate ground for the logic of the syllogism but does appear to illuminate the psychological processes involved. Syllogistic thinking is shown to have its origins in the approach and avoidance behaviour of pre-verbal organisms and, in verbal (human) organisms, to bridge the gap between the intuitive grasp shown by most of us of the validity of simple (...) logical arguments and the failure of intuition in more complex arguments that require resort to calculation. Some difficulties are considered affecting the use of syllogisms as experimental material. These include failure on the part of the investigator to take account of the fact that a syllogism is always part of a continuing argument in which the topic of the argument is known to all parties and the possibility that subjects may find ways of appearing to solve syllogisms without actually doing so. (shrink)

This chapter contains sections titled: Problems of Jurisprudence The Enterprise of Legal Theory From Positivism to Natural Law Theory as Interpretation Law as Integrity Unger and the Critical Legal Studies Movement Philosophical Reconstruction of Legal Doctrine.

To understand the distinctive characteristics of the institutions of law, one needs to understand the idea of law. Understanding the nature of law is not ultimately a matter of achieving a careful description of social practices but a matter of grasping the idea towards which those practices must be understood as oriented. The idea of law is the focal point that enables us to make coherent sense of the otherwise diverse features of practice, but it is not itself a matter (...) of observable practice. It resembles a notional point in space that enables us to grasp the relationship between various parts of a complex drawing, although in itself it forms no part of the drawing. But how is such an idea to be investigated? We expect a clear understanding of the idea of law to explain our settled understandings about what will and will not count as an instance of legal ordering. We expect it, in other words, to explain some at least of the minimum conditions for applicability of the idea. But, since the idea of law is invoked within the practices of law, we also expect a philosophical understanding of that idea to clarify its role in guiding and orienting practice, and not simply in describing practice. Although the practices of law are oriented towards the idea of law, that idea is not straightforwardly available to be read in the surface appearance of the practices. For such practices, while involving systematic appeal to the idea of law, operate for the most part on the basis of that unreflective conformity that assists the stable functioning of most human institutions. Can we begin by identifying a "minimum specification" of the concept of law, in the form of a set of conditions without which nothing could count as law at all? From such a minimum specification, can we proceed in some orderly and intellectually defensible way towards "later phases" of the concept, with their "qualitative changes as well as additions and complications"? The possibility is worth exploring, however unfashionable may be the philosophical viewpoint from which it springs. Fuller's famous story of Rex, and his failed attempts to enact law, identifies the minimum conditions that something must satisfy in order to count as an instance of law. Fuller's theory becomes interesting when he proceeds to demonstrate that the eight desiderata (identified as minimum conditions), when taken collectively, be regarded as a guiding ideal for legal thought: the ideal that we usually label "the rule of law". Fuller claimed that his eight requirements represent an "inner morality of law". Hart's critique of Fuller appeared to suggest that the moral value of compliance with the eight requirements is wholly contingent upon the law's content, and that the eight requirements are more akin to precepts of efficiency than to moral standards. This criticism has been widely endorsed as correct. In fact, the criticism is not correct. The eight requirements are not principles of efficacy, but (when taken together) represent a moral ideal for legal systems. Fuller never really succeeded in giving a clear explanation of the moral status of his eight requirements. I argue that Fuller's eight desiderata represent an intrinsically moral ideal that we may call "freedom as independence from the power of another". This is the aspect of freedom that distinguishes the slave from the free man. My theory seeks to establish the existence of a very tight and necessary connection between law and morality. Positivists will find it impossible to deny that governance by law involves some degree of compliance with Fuller's eight requirements, and that such compliance necessarily involves the realisation of some degree of freedom as independence. If they are tempted to deny that freedom as independence is a distinct aspect of freedom, they must also argue that connections between slavery and the lack of freedom are purely contingent. If they accept that the lack of freedom as independece is what makes a slave a slave, but they deny that freedom as indepenence is a moral value, they must say that there is nothing intrinsically morally wrong with slavery: the moral wrongness of slavery would then have to be seen as stemming from purely contingent features of the slave's position. The value of freedom as independence may be thin. But it is real, it is genuinely valuable, and it is tightly connected to the existence of law. (shrink)

This article discusses the 2005 OUP biography of Michael Polanyi by William T. Scott and Martin X. Moleski S.J., Michael Polanyi, Scientist and Philosopher . The discussants are N. E. Wetherick, Brian G Gowenlock, and John Puddefoot; Martin X. Moleski, S. J. briefly responds, providing a previously unpulished letter from Polanyi to Reverend Dr. Knox, a Presbyterian mininster.

In this article, it is argued that an appropriate starting point for an analysis of ethical issues in health care is the consideration of the role obligation of health care professionals. These obligations have customary, legal, and moral elements. By appreciating the different kinds of health care roles and their purposes, one can begin to understand some of the role conflicts which arise in the health care community. Moreover, one can see that some criticisms of health care professionals are mistaken. (...) Nonetheless, there are internal conflicts with the roles of persons engaged in health care and historically some role obligations have violated fundamental universal norms. Whereas the latter inadequacy of health care role obligations can be eliminated, the former will, to at least some extent, always be with us. In short, it may be argued that some of the so-called "moral dilemmas" in health care can be resolved by taking the perspective of role morality. As will be shown, this does not suggest that there are no limitations of role morality. CiteULike Connotea Del.icio.us What's this? (shrink)