This paper studies both Locke's Two Treatises of Government and Sidney's Discourses Concerning Government. It suggests that there is a much closer relationship between them than has usually been assumed. In particular, there is a community of language, and of argumentation, underlying their justifications of resistance. This hinges upon the rights, and the law, of war. This language was a Dutch inheritance: it derived specifically from Hugo Grotius' classic The Law of War and Peace (1625). But its development here also (...) drew upon two English contexts: both the political crisis of 1678-83 and the earlier experience of the English civil wars. I have argued elsewhere that the crisis of 1678-83, usually called the exclusion crisis, was at one level a reliving of the experience of the civil wars. It was the Restoration crisis, and it was triggered by a collapse of confidence in the Restoration settlement. Indeed beneath the constitutional veneer of the Restoration period as a whole -- a restoration of constitutional normality as superficial as it was brief -- lay the proximity, and eventually the fact, of political (and judicial) violence. It was within this context that there emerged, in the work of Locke and Sidney, an ideology of political and judicial violence that drew upon the experience of half a century of England's troubles. In so tracing their use of Grotius we will be considering the reflections of some of Early Modern Europe's most influential writers upon what was the primary political problem of their age. (shrink)

We analyse the tensions in a hybrid collaboration and how these are mitigated using boundary-spanning community impact, leading to compatibility between distinctive institutional logics. Our qualitative longitudinal study undertaken during 2011–2016 involved reviewing literature and archival data, key informant interviews, workshop and focus groups. We analysed common themes within the data, relating to our two research questions concerning how and why hybrids collaborate, and how resulting tensions are mitigated. The findings suggest a viable model of service delivery termed hybridized collaboration (...) in which the inherent tensions from different institutional logics do not prevent success. Paradoxically, multiple logics are a basis for the partnership’s existence, but the ability to achieve different and occasionally conflicting aims simultaneously can be difficult, resulting in tensions. We offer two novel insights. First, we highlight how social enterprise hybrids collaborate locally and in multi-organizational relationships. We found that the initial opportunity to collaborate was catalysed by the existence of shared objectives. Pre-existing relationships between organizations, and the existence of synergistic capabilities also influence the choice of partners. Secondly, we identify how tensions arise, and are mitigated via several factors including the pre-existing relationships, allowing for regular “spaces of negotiation” between collaborators, the shared social mission, community social impact, the resulting public relations, and shared resources and knowledge. (shrink)

Preview: /Scott Shapiro interviewed by Eli Kramer / EK: Thanks for talking with me today. Your book, The Internationalists: How a Radical Plan to Outlaw War Remade the World is not only kind of groundbreaking in the way it changes how we think about the role of international law in the history and philosophy of culture, and some of our progressive success of not having disastrous violence shape us each generation, but it has only become more relevant since (...) the war in Ukraine was launched. As a starting point for our conversation, can you summarize the main premise of the work? SS: It’s a story about the modern international order. Despite its imperfections, it needs to be defended now more than ever. The central argument of the book is that the origins of the modern international order can be traced to a specific date in history. Namely August 27th, 1928, when the great leaders of the world gathered in Paris to outlaw war. The treaty that was signed on that day is sometimes called the Kellogg-Briand Pact, the Peace Pact, or the Paris Peace Pact. Its actual formal designation was “The General Treaty for the Renunciation of War,” basically saying it all was an attempt to outlaw war. Now, of course most people have never heard of it. It’s amazing that basically all the countries in the world decide to outlaw war, which in itself is initially a strange thing to do, but then nobody knows about it. (shrink)

What is law (and why should we care)? -- Crazy little thing called "law" -- Austin's sanction theory -- Hart and the rule of recognition -- How to do things with plans -- The making of a legal system -- What law is -- Legal reasoning and judicial decision making -- Hard cases -- Theoretical disagreements -- Dworkin and distrust -- The economy of trust -- The interpretation of plans -- The value of legality.

Lays out basics of planning theory of law. Roughly, characterizes the internal point of view as a complex planning intention rather than a response to a recurring coordination problem. We are not responding to such a problem per se, but rather to a cooperation problem - and thus the structure of the attitude or intention must be different. It is officials who have the relevant attitude. Does not reject conventionalism, but argues that the convention is of a different sort than (...) is typically thought. Considers the basic commitment of legal positivism to be a commitment law as social fact. (shrink)

Many instances of scientific research impose risks, not just on participants and scientists but also on third parties. This class of social risks unifies a range of problems previously treated as distinct phenomena, including so-called bystander risks, biosafety concerns arising from gain-of-function research, the misuse of the results of dual-use research, and the harm caused by inductive risks. The standard approach to these problems has been to extend two familiar principles from human subjects research regulations—a favorable risk-benefit ratio and informed (...) consent. We argue, however, that these moral principles will be difficult to satisfy in the context of widely distributed social risks about which affected parties may reasonably disagree. We propose that framing these risks as political rather than moral problems may offer another way. By borrowing lessons from political philosophy, we propose a framework that unifies our discussion of social risks and the possible solutions to them. (shrink)

Research indicates that the well‐being and productivity of over 100 million people in the global workforce may be compromised by posttraumatic stress (PTS). Given that work‐related experiences are often the source of the trauma that leads to PTS, and that PTS due to any cause can interfere with employees’ job performance, organizations would do well to consider the antecedents and consequences of PTS. This review of research—primarily within fields adjacent to business—on the types, antecedents, consequences, and organizational implications of PTS (...) is presented to advance inquiry within the field of business. The definition of PTS requires attention to the new classification of complex posttraumatic stress disorder that can result from threats that are not life‐threatening such as bullying and sexual harassment. PTS antecedents include organizational and extraorganizational traumas, and risk and resilience factors. Absenteeism, impaired cognitive functioning, strained relationships, and growth are among the consequences of PTS. Organizations can assist through disaster planning, empathetic leaders, mental health literacy initiatives, and employee assistance programs. Many research questions arise that, when answered, will allow organizations to better understand how they can improve employee productivity and well‐being by attending to PTS. (shrink)

For the past four decades, Anglo-American legal philosophy has been preoccupied – some might say obsessed – with something called the “Hart-Dworkin” debate. Since the appearance in 1967 of “The Model of Rules I,” Ronald Dworkin’s seminal critique of H.L.A. Hart’s theory of legal positivism, countless books and articles have been written either defending Hart against Dworkin’s objections or defending Dworkin against Hart’s defenders. My purpose in this essay is not to declare an ultimate victor; rather it is to identify (...) precisely the core issue around which the debate is organized. Is the Hart-Dworkin debate, for example, about whether the law contains principles, as well as rules? Or does it concern whether judges have discretion in hard cases? Is it about the proper way to interpret legal texts in the American legal system? Or is it about the very possibility of conceptual jurisprudence? Although trying to capture the essence of a philosophical debate can be tricky, I think that there is an important unity to the Hart-Dworkin debate that can be described in a relatively straightforward manner. I suggest that the debate is organized around one of the most profound issues in the philosophy of law, namely, the relation between legality and morality. Dworkin’s basic strategy throughout the course of the debate has been to argue that, in one form or another, legality is ultimately determined not by social facts alone, but by moral facts as well. This contention directly challenges, and threatens to undermine, the positivist picture about the nature of law, in which legality is never determined by morality, but solely by social practice. As one might expect, the response by Hart and his followers has been to argue that this dependence of legality on morality is either merely apparent or does not, in fact, undermine the social foundations of law. The Hart-Dworkin debate, I also try to show, is not a monolithic entity. In the second half of the paper, I describe how Dworkin modified his critique to circumvent the responses of Hart’s followers, thereby inaugurating a new phase in the debate. Virtually no attention, however, has been paid to this latter challenge, which is especially surprising given that none of the previous positivistic defenses are helpful against it. I then sketch out a possible response positivists might offer to this extremely powerful objection. (shrink)

The article examines the ethical choices that are implicit in acts of memorialization. By engaging literature on the rhetoric of memorials and pragmatist aesthetics, we argue that memorialization involves a range of important ethical choices in who is remembered, how they are remembered, and the experience the act of memorialization evokes in viewers. By using John Dewey's nascent account of memorial aesthetics, we construct an exploratory typology of the ways that memorials can use and evoke the experience of viewers. The (...) means of experiential reconstruction are also found to involve important ethical decisions. We explore the usefulness of this typology in reference to two different memorials: Ambedkar Memorial Park in Lucknow, India, and the Memorial for the Unknown War Deserters and for the Victims of the National Socialist Military Justice System in Erfurt, Germany. (shrink)

We sometimes seek expert guidance when we don’t know what to think or do about a problem. In challenging cases concerning medical ethics, we may seek a clinical ethics consultation for guidance. The assumption is that the bioethicist, as an expert on ethical issues, has knowledge and skills that can help us better think about the problem and improve our understanding of what to do regarding the issue. The widespread practice of ethics consultations raises these questions and more: What would (...) it take to be a moral expert? -/- Is anyone a moral expert, and if so, how could a non-expert identify one? -/- Is it in any way problematic to accept and follow the advice of a moral expert as opposed to coming to moral conclusions on your own? -/- What should we think and do when moral experts disagree about a practical ethical issue? In what follows, we address these theoretical and practical questions about moral expertise. (shrink)

In this article, we propose a novel account of general jurisprudence by situating it within the broader project of metanormative inquiry. We begin by showing how general jurisprudence is parallel to another well-known part of that project, namely, metaethics. We then argue that these projects all center on the same task: explaining how a certain part of thought, talk, and reality fits into reality overall. Metalegal inquiry aims to explain how legal thought, talk, and reality fit into reality. General jurisprudence (...) is the part of metalegal inquiry that focuses on universal legal thought, talk, and reality. (shrink)

One of the principal lessons of The Concept of Law is that legal systems are not only comprised of rules, but founded on them as well. As Hart painstakingly showed, we cannot account for the way in which we talk and think about the law - that is, as an institution which persists over time despite turnover of officials, imposes duties and confers powers, enjoys supremacy over other kinds of practices, resolves doubts and disagreements about what is to be done (...) in a community and so on - without supposing that it is at bottom regulated by what he called the secondary rules of recognition, change and adjudication. Given this incontrovertible demonstration that every legal system must contain rules constituting its foundation, it might seem puzzling that many philosophers have contested Hart's view. In particular, they have objected to his claim that every legal system contains a rule of recognition. More surprisingly, these critiques span different jurisprudential schools. Positivists such as Joseph Raz, as well as natural lawyers such as Ronald Dworkin and John Finnis, have been among Hart's most vocal critics. In this essay, I would like to examine the opposition to the rule of recognition. What is objectionable about Hart's doctrine? Why deny that every legal system necessarily contains a rule setting out the criteria of legal validity? And are these objections convincing? Does the rule of recognition actually exist? This essay has five parts. In Part One, I try to state Hart's doctrine of the rule of recognition with some precision. As we will see, this task is not simple, insofar as Hart's position on this crucial topic is often frustratingly unclear. I also explore in this part whether the United States Constitution, or any of its provisions, can be considered the Hartian rule of recognition for the United States legal system. In Part Two, I attempt to detail the many roles that the rule of recognition plays within Hart's theory of law. In addition to the function that Hart explicitly assigned to it, namely, the resolution of normative uncertainty within a community, I argue that the rule of recognition, and the secondary rules more generally, also account for the law's dexterity, efficiency, normativity, continuity, persistence, supremacy, independence, identity, validity, content and existence. In Part Three, I examine three important challenges to Hart's doctrine of the rule of recognition. They are: 1) Hart's rule of recognition is under- and over-inclusive; 2) Hart cannot explain how social practices are capable of generating rules that confer powers and impose duties and hence cannot account for the normativity of law; 3) Hart cannot explain how disagreements about the criteria of legal validity that occur within actual legal systems, such as in American law, are possible. In Parts Four and Five, I address these various objections. I argue that although Hart's particular account of the rule of recognition is flawed and should be rejected, a related notion can be fashioned and should be substituted in its place. The idea, roughly, is to treat the rule of recognition as a shared plan which sets out the constitutional order of a legal system. As I try to show, understanding the rule of recognition in this new way allows the legal positivist to overcome the challenges lodged against Hart's version while still retaining the power of the original idea. (shrink)

Legal positivism is generally characterized by its commitment to two theses Separability Thesis,” denies any necessary connection between morality and legality. Legal positivists do not require that a norm possess any desirable, or lack any undesirable, moral attributes in order to count as law.

Though the “internal point of view” is perhaps H.L.A. Hart’s greatestcontribution to legal theory, this concept is also often and easily misunderstood. This is unfortunate, not only because these misreadings distort Hart’s theory, but, more importantly, because they prevent us from appreciating the infirmities of sanction-centered theories of law and the compelling reasons why they ought to be rejected. In this paper, I try to address some of these confusions. What, exactly, is the internal point of view? What role (or (...) roles) does it play in Hart’s theory? And how does an adequate appreciation for the centrality of the internal point of view lead to the rejection of sanction-centered theories? (shrink)

It is hard to think of a more banal statement one could make about the law than to say that it necessarily claims legal authority to govern conduct. What, after all, is a legal institution if not an entity that purports to have the legal power to create rules, confer rights, and impose obligations? Whether legal institutions necessarily claim the moral authority to exercise their legal powers is another question entirely. Some legal theorists have thought that they do—others have not (...) been so sure. But no one has ever denied that the law holds itself out as having the legal authority to tell us what we may or may not do. (shrink)

In “On Epistemic Abstemiousness,” Alex Bundy has advanced his criticism of our view that the Principle of Suspension yields serious diachronic irrationality. Here, we defend the diachronic perspective on epistemic norms and clarify how we think the diachronic consequences follow.

One of the first volumes in the new series of prestigious Oxford Handbooks, The Oxford Handbook of Jurisprudence and Philosophy of Law brings together specially commissioned essays by twenty-six of the foremost legal theorists currently writing, to provide a state of the art overview of jurisprudential scholarship.

A growing number of clinical trials use invasive research procedures to obtain tissue for disease screening and to monitor the effects of drugs. These procedures can be ethically contentious because they often have neither therapeutic nor diagnostic value, and because research participants may not realize this, which could compromise the validity of their consent to the procedure. In the first section of this paper, we describe the burdens, risks, and benefits associated with certain common invasive, nondiagnostic research procedures. We next (...) offer a series of arguments about the general properties of a valid consent for such procedures, and we close by examining what is currently known about consent quality for invasive research procedures when measured against the standards laid out in the second section. We conclude that there is little evidence to either confirm or dispel concerns about participants’ consent quality for protocols involving invasive, nondiagnostic research procedures. (shrink)

Irrational people create problems not only for themselves and those around them, but also for those who study them. They cause trouble for social scientists because their actions are inexplicable, at least according to generally accepted models of explanation. Explanations in the social sciences normally assume the form of rationalizations: actions are explained by showing that, relative to what the subjects believe and desire, the actions were done for good reasons. Conversely, when good reasons cannot be found for why someone (...) acted as they did, their behavior remains inscrutable. Irrational people, therefore, stymie social scientists because their actions do not reveal the rationality needed to produce adequate explanations. (shrink)

In this paper, I present a new argument against inclusive legal positivism. As I show, any theory which permits morality to be a condition on legality cannot account for a core feature of legal activity, namely, that it is an activity of social planning. If the aim of a legal institution is to guide the conduct of the community through plans, it would be self-defeating if the existence of these plans could only be determined through deliberation on the merits. I (...) also argue that, insofar as inclusive legal positivism was developed as a response to Ronald Dworkin's critique of H. L. A. Hart's theory of law, it was founded on a mistake. For once we appreciate the role that planning plays in legal regulation, we will see that Dworkin's objection is based on a flawed conception of legal obligations and rights and hence does not present an objection that inclusive legal positivists were required to answer. (shrink)

We sometimes seek expert guidance when we don’t know what to think or do about a problem. In challenging cases concerning medical ethics, we may seek a clinical ethics consultation for guidance. The assumption is that the bioethicist, as an expert on ethical issues, has knowledge and skills that can help us better think about the problem and improve our understanding of what to do regarding the issue. The widespread practice of ethics consultations raises these questions and more: -/- • (...) What would it take to be a moral expert? • Is anyone a moral expert, and if so, how could a non-expert identify one? • Is it in any way problematic to accept and follow the advice of a moral expert as opposed to coming to moral conclusions on your own? • What should we think and do when moral experts disagree about a practical ethical issue? -/- In what follows, we address these theoretical and practical questions about moral expertise. (shrink)

The critical examination of current hypotheses is one of the key ways in which scientific fields develop and grow. Therefore, any critique, including Haidle and Schlaudt’s article, “Where Does Cumulative Culture Begin? A Plea for a Sociologically Informed Perspective,” represents a welcome addition to the literature. However, critiques must also be evaluated. In their article, Haidle and Schlaudt review some approaches to culture and cumulative culture in both human and nonhuman primates. H&S discuss the “zone of latent solutions” hypothesis as (...) applied to nonhuman primates and stone-toolmaking premodern hominins. Here, we will evaluate whether H&S’s critique addresses its target. (shrink)

One of the first volumes in the new series of prestigious Oxford Handbooks, The Oxford Handbook of Jurisprudence and Philosophy of Law brings together specially commissioned essays by twenty-six of the foremost legal theorists currently writing, to provide a state of the art overview of jurisprudential scholarship.

This book addresses the challenges of living together after empire in many post-colonial cities. It is organized in two sections. The first section focuses on efforts by people of multiple faiths to live together within their contexts, including such efforts within a neighborhood in urban Manchester; the array of attempts at creating multi-faith spaces for worship across the globe; and initiatives to commemorate divisive conflict together in Northern Ireland. The second section utilizes particular postcolonial methods to illuminate pressing issues within (...) specific contexts—including women’s leadership in an indigenous denomination in the variegated African landscape, and baptism and discipleship among Dalit communities in India. In the context of growing multiculturalism in the West, this volume offers a postcolonial theological resource, challenging the epistemologies in the Western academy. (shrink)

Modes of rationality in nursing documentation: biology, biography, and the ‘voice of nursing’ This article is based on a discourse analysis of the complete nursing records of 45 patients, and concerns the modes of rationality that mediated text‐based accounts relating to patient care that nurses recorded. The analysis draws on the work of the critical theorist, Jürgen Habermas, who conceptualised rationality in the context of modernity according to two types: purposive rationality based on an instrumental logic, and value rationality based (...) on ethical considerations and moral reasoning. Our analysis revealed that purposive rationality dominated the content of nursing documentation, as evidenced by a particularly bio‐centric and modernist construction of the workings of the body within the texts. There was little reference in the documentation to central themes of contemporary nursing discourses, such as notions of partnership, autonomy, and self‐determination, which are associated with value rationality. Drawing on Habermas, we argue that this nursing documentation depicted the colonisation of the sociocultural lifeworld by the bio‐technocratic system. Where nurses recorded disagreements that patients had with medical regimes, the central struggle inherent in the project of modernity became transparent — the tension between the rational and instrumental control of people through scientific regulation and the autonomy of the subject. The article concludes by problematising communicative action within the context of nursing practice. (shrink)

Seeing, Doing, and Knowing: A Philosophical Theory of Sense Perception MOHAN MATTHEN New York, Oxford University Press, 2007384 pages, ISBN: 0199204284 (pbk); $35.00Mohan Matthen's Seeing, Doing an...

In his book Legality Scott J Shapiro presents a large-scale and sophisticated attempt to defend legal positivism in its most outspoken form, namely exclusive legal positivism. This, however, does not mean that morality plays no role in Shapiro’s analysis of the nature of law. On the contrary, he connects law with morality in myriad ways. This gives rise to the question of whether Shapiro’s theory of the nature of law is truly positivistic. In the article I (...) argue that Shapiro’s theory is, first, in crucial respects non-positivistic, and, second, in certain other respects indeed positivistic but in need of being converted into a non-positivistic theory. (shrink)