Even though tacit legal norms are deeply important to our past, present, and future, the very idea of unwritten law has been difficult to pin down, and problematic in a range of ways. Existing discussions of the phenomenon fall short of adequacy on one of several fronts: either they have focused on describing the normative features of one kind of unwritten law, or completely conflated the study of unwritten law with natural law, or else offered examinations of (...) unwritten social rules, focussing on (mere) custom, ethics, and/or etiquette. A particular defect is the fact that unwritten law has not been given a treatment by those working in the tradition of analytical jurisprudence. My thesis introduces a novel means of analyzing and explicating the elusive concept of unwritten legal rules, striving thereby to advance the state-of-the-art. In what follows I argue that unwritten laws are informally publicized rules held on the threat of formal sanction by an appropriate political authority. I argue that a law is informally disseminated just in case the appropriate governing theory of law, known to subjects, provides those subjects with a set of instructions about who to defer to concerning the contents of the law, absent dissemination in official venues. I propose that there are at least five potential kinds of unwritten law routinely recognized in legal studies: operations, implicit constitutions, justice norms, fiat rules, and secret laws. Through careful examination of extant theories of law (Aquinas, Hobbes, Foucault, Marx, Austin, Fuller, Hart, and Dworkin), I argue that there are identifiable structural features of the contents of these theories that make them more or less likely to endorse the legal validity of each kind of unwritten law. Throughout the course of the dissertation, I show how we are able to diagnose the ways in which these structural features of our theories of law differentially support the validity of—and shed important, additional light upon—each potential variety of unwritten law. (shrink)

John Rawls proposed, as what he called “the liberal principle of legitimacy,” that coercive exercises of political power can be justified to free and equal dissenters when “in accordance with a constitution (written or unwritten) the essentials of which all citizens, as reasonable and rational, can endorse.” Does “unwritten constitution” there refer to norms of constitutional import, but that subsist only as custom, not as law? To norms that subsist as common law but not as code law? To (...) empirical regularities of political practice, as opposed to normative rules and standards? Which interpretation is best? (shrink)

This article considers the major constitutional reforms which have taken place in the United Kingdom during the period of government by the Labour Party, 1997-2010. Within the context of the UK’s unwritten constitution, the article first considers how ‘constitutional’ law can be identified when compared with a written constitution, such as that of the Republic of Lithuania. The article then analyses the major reforms which have taken place since 1997, the political reasons behind them, the processes of reform and (...) their impact on the constitution. The four areas examined—reform of the House of Lords; the enactment of the Human Rights Act 1998; devolution; and the changes to the judiciary in the Constitutional Reform Act 2005—have all had a significant impact on the way in which the UK is governed. The article argues that these are all welcome developments, but that in many cases they are incomplete. In the absence of the likelihood of a future written constitution for the UK, sustained efforts by future governments are needed by to ensure that the reforms fulfil their aim of modernizing the democratic system. (shrink)

Archytas of Tarentum, a contemporary and associate of Plato, was a famous Pythagorean, mathematician, and statesman of Tarentum. Although his works are lost and most of the fragments attributed to him were composed in later eras, they nevertheless contain valuable information about his thought. In particular, the fragments of On Law and Justice are likely based on a work by the early Peripatetic biographer Aristoxenus of Tarentum. The fragments touch on key themes of early Greek ethics, including: written and (...) class='Hi'>unwritten laws; freedom and self-sufficiency; moderation of the emotions and cultivation of virtues; equality and the competence of the majority to participate in government; criticism of “rule by an individual”; a theory of the ideal “mixed constitution”; distributive and corrective justice and punishment, and of the rule of law. The fragments also contain one of the only positive accounts of democracy in ancient Greek philosophy. (shrink)

The focus of this book is on the epistemological and hermeneutic implications of data science and artificial intelligence for democracy and the Rule of Law. How do the normative effects of automated decision systems or the interventions of robotic fellow 'beings' compare to the legal effect of written and unwritten law? To investigate these questions the book brings together two disciplinary perspectives rarely combined within the framework of one volume. One starts from the perspective of 'code and law' and (...) the other develops from the domain of 'law and literature'. Integrating original analyses of relevant novels or films, the authors discuss how computational technologies challenge traditional forms of legal thought and affect the regulation of human behavior. Thus, pertinent questions are raised about the theoretical assumptions underlying both scientific and legal practice. (shrink)

International criminal law (ICL) is an achievement, but at the same time a challenge to the traditional conception of the principle of legality (_lex praevia_, _scripta_, and _stricta_ – Sect. 1). International criminal tribunals have often based conviction for international crimes on unwritten norms the existence and scope of which they have failed to substantiate. In so doing, they have evaded the objection that they were applying _ex post facto_ criminal laws. This approach, the relaxation of the concept (...) of law by including norms whose existence is doubtful, has apparently served to maintain a concept of strict legality, but it is unsatisfying (Sect. 2). In my opinion, the strict principle of legality that has linked its absolute validity to the positivity of law is not the correct premise. It makes sense to state that positivity and validity do not necessarily go hand in hand (Sect. 3). Applied to ICL, this means that it is neither necessary nor convincing to “conceal” supra-positive law as positive law, as some decisions of the international criminal tribunals do. For this reason, I consider that Radbruch’s formula, consisting in admitting that there are supra-positive limits which positive law must respect in order to be valid, is well-founded (Sect. 4). The path taken by this significant philosopher of law is methodologically convincing, and it squarely faces the problem of the value of positive law. Nevertheless, if we admit Radbruch’s formula and thereby the limited value of positive law (if we claim that the validity of the law depends on it respecting supra-positive minimums of justice), we must also face the problem of the definition of supra-positive values, the epistemological difficulties of having access to them (Sect. 5), and the question of the scope and enforceability of supra-positive law (Sect. 6). In summary, this article aims to explain why Radbruch’s formula offers a convincing conceptual basis for international criminal legality and, in doing so, aims to contribute to the discussion about the foundations of ICL. (shrink)

This essay claims that the violence characterizing the 20th century has been coloured by the clash of two very different senses of legal authority. These two senses of legal authority correspond with two very different contexts of civil violence: state secession and the violence characterizing a challenge to a state-centric legal authority. Conklin argues that the modern legal authority represents a quest for a source or foundation. Such a sense of legal authority, according to Conklin, clashes such a view with (...) the unwritten laws of early Amerindian traditional societies. Conklin argues further that by arguing that the Amerindian sense of legal authority has been concealed in the dominant modern sense of legal authority. (shrink)

Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which (...) place legal and political order under great stress. Those cases are discussed against a backdrop of recent writing and judicial decisions in the United States of America in order to show that the issues are not confined to the Commonwealth. The author argues that the rule-of-law project is one in which judges play an important role, but which also requires the participation of the legislature and the executive. (shrink)

The article deals with the problematization of the study of the kon (unwritten rules) phenomenon. The functions of the unwritten rules (kon) are compared with the functions of the law. The constitution of social reality as a socio-historical process that establishes the basic categories of society's perception of its social existence is the object of research. The subject of the study is the poorly studied functions of the “kon” in the constitution of social reality. The methodology is held (...) together by general theoretical methods of typology and comparison. The study is built from the observation of the historical phenomenon of the horse to the disclosure of the heuristic potential of the concept of “kon” for describing the phenomena of modern life. The basis of the methodology is the theory of binary oppositions of culture by A.S. Akhiezer, reinforced the dialectical-dialogical pragmatic model of metacommunication R.T. Craig. The social functions of the horse remain poorly studied due to a certain way of configured research optics, concentrated on the laws governing the control of a single center of power by a poorly organized periphery. (shrink)

The Sovereignty of Law presents Trevor Allan's most recent and fully elaborated defence of common law constitutionalism - an account of the unwritten or non-codified constitution as a complex articulation of legal and moral principles, defining what in the British context are the requirements of the rule of law. The British constitution is conceived as a coherent set of fundamental principles of the rule of law, legislative supremacy, and separation of powers. These principles.

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Sport Realism: A Law-Inspired Theory of Sport by Aaron HARPERTim ElcombeHARPER, Aaron. Sport Realism: A Law-Inspired Theory of Sport. Lanham, Md.: Lexington Books, 2022. viii + 172 pp. Cloth, $95.00At a crucial moment in the 2019 World Series all six on-field umpires, in communication with Major League Baseball’s headquarters, engaged in an 8-minute discussion to determine if a baserunner should be called out for interference. The deliberation stemmed (...) from a tension between the formal rules of baseball and the game’s unwritten rules about a baserunner’s traveled path to first base. This example of a “hard case” in sport officiating sets Aaron Harper’s book Sport Realism: A Law-Inspired Theory of Sport in motion. Harper’s aim in Sport Realism is to provide a new “theory of sport” drawing primarily from American legal realism—and supplemented by philosophical pragmatism and virtue jurisprudence. Sport realism, Harper argues, serves as the best resource to understand how rules are applied in sport and how officials make in-game decisions, and it highlights the importance of participants being able to develop an expectation for how calls will be made in the future and to make difficult normative judgments.In chapter 1, Harper provides an excellent overview of the sport philosophy literature related to “theories of sport.” Using a chronological approach, he develops a clear and extensive “history” of the evolution of the field’s most influential theories and their connections to legal theory. Harper summarizes how formalism’s rigid commitment to “constitutive” rules that supposedly define a sport led to criticisms from conventionalists who alternatively generated their account of how nonwritten rules or a sporting ethos defines how a sport is played. However, the laissez-faire nature of conventionalism, as well as the inflexibility of formalism, gave rise to now-dominant interpretivist theories of sport that Harper covers in significant detail. Primarily inspired by Ronald Dworkin, philosophers developed theories that relied on the interpretation of principles that affirmed a sport’s point and purpose. Emergent formulations of interpretivism—from realist accounts to antirealist/historicist versions—all relied on the interpretation of some essential starting point (rules, principles, ethos, deep conventions) to both explain sport and provide officials with normative guidance.Harper regularly lauds interpretivism as the best theory of sport developed to date. However, in chapter 2 he highlights deficiencies with interpretivist accounts via two case studies: New York Yankees’ pitcher Michael Pineda’s “illegal” use of pine tar to improve his grip on the [End Page 147] baseball, as well as Tiger Woods taking a favorable drop after hitting his golf ball into a water hazard. From these two cases, Harper concludes that all variations of interpretivism (from realist to antirealist accounts) fall short in the purpose of developing a theory of sport: to both explain sport (Pineda case) and give a wide swath of formal and informal decision-makers tools to make difficult ethical judgments (Woods case).Harper turns to American legal realism in chapter 3 to develop a superior theory of sport. Crucial to Harper’s sport realism account is Oliver Wendell Holmes’s resistance to understanding law as a set of rules or principles, and instead as an ongoing process of “policymaking” best characterized by the role of the appellate courts. “Understanding the law” from a Holmes perspective, Harper writes, “entails successful prediction of how courts will act in deciding cases... which actions will, in fact, prompt sanction by a court.” This alternative view of the law led to the rise of American legal realism—and subsequently serves as the source of Harper’s sport realism account sketched out in the latter half of chapter 3. According to sport realism, sport ought to be explained by how “it is actually played in order to provide a more accurate account of sport as an activity.” This “best explanation of sport” therefore “provides normative guidance” for sporting challenges.Continuing his development of sport realism, Harper sets out in chapter 4 to define cheating as “an instance of rule-breaking [that] warrants a restorative sanction given by sport officials, and we would expect such sanction to be given if the action... (shrink)

The main stream of legal theory tends to incorporate unwritten principles into the law. Weighing of principles plays a great role in legal argumentation, inter alia in statutory interpretation. A weighing and balancing of principles and other prima facie reasons is a jump. The inference is not conclusive.To deal with defeasibility and weighing, a jurist needs both the belief-revision logic and the nonmonotonic logic. The systems of nonmonotonic logic included in the present volume provide logical tools enabling one to (...) speak precisely about various kinds of rules about rules, dealing with such things as applicability of rules, what is assumed by rules, priority between rules and the burden of proof. Nonmonotonic logic is an example of an extension of the domain of logic. But the more far-reaching the extension is, the greater problems it meets. It seems impossible to make logical reconstruction of the totality of legal argumentation. (shrink)

The goal of the text is to reconstruct the concept of cultural normativity found in the phenomenological philosophy of law. The starting point of the text is the distinction between cultural normativity and normativity in culture. This distinction is based on reference to an extra-cultural, but not non-human instance – transcendent to the creations of humanity and its world, but in relations with the human equipment, with the characteristics of a specific human being and its existence. The specific relations between (...) cultural and legal normativity can be found in phenomenological concepts of law, which draw on the Husserlian transcendentalism and essentialism. The phenomenology of law attempts to answer the question of the sources, and the ontological and epistemological status of normativity as such. Normativity as a written and unwritten set of norms is characterized by phenomenologists with reference to value and axiology. The values are assumed by them as certain fixed reference points (“horizon of values” given to be recognized), because norms make it possible to establish rules for various individual and collective practices within a particular community and culture on the basis of values. (shrink)

Understanding the rule of law in the Antipodes, that is in the Commonwealth of Australia and New Zealand, as a legal value is clear to both of these societies. The rule of law, oftentimes called the state of law, is the basis of the system of values, as well as legal culture, which determines which social values are legally protected and how high their position de facto and de iure is. The hierarchy of the rule of law in the Antipodes (...) shows undoubtedly how various legal norms, unwritten and those codified ones, protect the democratic system with all its principles, along with the rights and freedoms of citizens and persons residing in these two countries. (shrink)

W. Baude’s and S.E. Sachs’s paper entitled “The Law of Interpretation” is a fascinating survey of a plethora of cases from the American common law system. The main conclusion of the article is extremely interesting from both philosophical and practical points of view. Namely, the authors claim that there exists something additional in the law that has not been identified before, and this is the law of interpretation. This law of interpretation is claimed to be a set of both written (...) and unwritten rules, including the canons of construction. However, a closer look at the examples provided by Baude and Sachs throughout their paper proves some nonhomogenous nature of the unwritten rules of the law of interpretation. I claim that this nonhomogeneity comes precisely from different, more fundamental facts to which these unwritten rules of interpretation are related. Moreover, I argue that the elements of the law of interpretation that are indeed incorporated into the law are in fact scarce, and I investigate the reasons for this state of affairs. Two main reasons are analyzed—the nature of context and the structure of all-things-considered moral arguments. (shrink)

ArgumentData collections are a hallmark of nineteenth-century administrative knowledge making, and they were by no means confined to Europe. All colonial empires transferred and translated these techniques of serialised and quantified information gathering to their dominions overseas. The colonial situation affected the encounters underlying vital statistics, enquête methods and land surveying. In this paper, two of those data collections will be investigated—a survey on land and a survey on indigenous law, both conducted around 1910 on the Micronesian island of Pohnpei, (...) which had fallen under German colonial influence a decade earlier. Strikingly, there are no enumerators or envoys of the state visiting the doorsteps of Pohnpei. To facilitate the data collection on homesteads, the whole population of the island was called upon to measure their respective plots of land themselves, without resorting to certified land surveyors. The preserved cadastral lists and spreadsheets testify to a rather peculiar contact between the colonizing administration and the colonized peoples. I argue that the production of data made encounters necessary, which are best observed though a methodological focus on data practices. I argue, furthermore, that the Pohnpeians were prompted during the surveys to define their homestead in new terms. This did not only entail new two-dimensional plots but also a new regime of private property. The change in the legal concept can be seen as a continuation of colonial violence by other means, given that it happened in the aftermath of the defeated Pohnpei Rebellion. The argument of the paper is, therefore, that data collection can have formative effects on society, and that measurement and quantified information are often, as Witold Kula argued, a scene of conflict. At its core, the installation of these metric regimes signified a change in patterns of justification, resource management and the unwritten constitution of the Pacific island. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:MARITAIN ON RIGHTS AND NATURAL LAW THOMAS A. FAY St. John's University Jamaica, New York T:HE WAY RIGHTS a11e viewed in our time creates urmoil in our society. But this one-sided view of rights ad ]ts origin in the philosophy of Jean Jacques Rousseaiu, in which the" Rights of Man" were divinized and hence made unlimited. In contrast, Maritain based his notion of rights on the natu:rail law, and (...) this phifosophic base can ground a more balanced view of rights, one which can protoot both against those who would assert arbitmry rights without any restraints whatever and against an authoritarian State which would subordinate an individual rights to its requirements. I. Maritain's Notion of the Natural Law For Marita:in, the ultimate groundiing of human rights is in the natural law.1 But just what does he mean by the term "natural law? " It is by no means obvious. Certa:inly from antiquity man has had some gmsp of a narturaJ faw, rthat is, of a law which transcends merely positive law, the law fashioned by men. In!J1an and the State, Maritain cites the case of Antigone, the heroine in Sophocles' pJ.ay of the same name. She breaks a positive faw in giving buriaJl to her brother 'and justifies her act by making an appeal to a law higher than any merely human law. And so she says " Nor did I deem Your ordinance of so much binding force, As that a mortal man could overbear The unchangeable unwritten code of heaven; 1 Les droits de l'homme et la, loi naturclle (New York: Editions de la Maison Frnncaise, Hl42), p. 84. 439 440 THOMAS A. FAY This is not of today and yesterday, But lives forever, having origin Whence no man knows...2 The Stoic philosophers spol{'e of a natural law; so did tnpian in the ancient Roman period, and St. Augus:tine in the early Middle Ages. The se-y;enteenth and eighteenth century saw the classical Law of Nature philosophers, such as Hugo Grotius, Thomas Hobbes, Benedict Spinoza, and John Locke. And of course, by no means least on our list, there was Thomas Aquinas. Mal11'tain takes Thomas's to be the most perfect statement of natural law. But even here there are certain ambiguities and problems. For example, with 11egard to the "primary " and " seconda,ry" precepts of natural law, the statements of St. Thomas in early work The Commentary On The Sentences are at variance with the vocabulary and the teaiching of the Summa theologiae, I-II, q. 94. Maritain attempts to clarify these obscurities by introducing what he rtakes to he the key to Thomas's 1 doctrine of natUl"al law-the notion of knowledge through inclination.3 As Maritain sees it, there are two aspects of natural law, one ontological and the other gnoseologicaL4 The ontological.aspect of natural law means that man has a being-structure which is the locus of inrtelligible necessities, that he possesses ends which necessarily correspond to his essential constitution and which are common to all men. This means that there is, by virtue of human nature itself, an order or a disposition which human reason can discover and accol'lding to which the human will should act if lit is to attain the necessary and essential ends of being human. This order or disposition is what he means by nrutural law. From this it follows that 001y being in nature, be it a tree or a dog or whatevier, has its own na.tural law, which is the normality of its funotioning, the proper way in which, by reason 2 Man and the State (Chicago: University of Chicago Press, 1951), p. 85. s Ibid., p. 91. 4!bill., pp. 85-94. MARITAIN ON RIGHTS AND NATURAL LAW 441 of its specific structure and specific ends, it " should " achieve the fullness of its being, The " shou1d " here is not a moral imperative but rather an ontological one, just as we say that a "good" eye" shou1d" be :able to perceive certain objects with clarity at a certain disrtance. But as soon as we enter the realm of free... (shrink)

Lon Fuller’s classic The Morality of Law is an exploration of the basic principles of a legal system: the law should be publicly promulgated, prospective, clear, and general. So deep are these principles, he argued, that too great a deviation from them would not simply create a bad legal system and bad law, but would render the products of such a system undeserving of the name “law” at all. In this essay, I argue that Fuller’s basic principles are not in (...) fact desiderata for all of law, observing that much of private law plainly flouts them; it is unwritten, retroactive, inchoate, and often limited to particular cases. Far from undercutting its status as law or its legitimacy, these attributes have sometimes been regarded as giving the common law its special character as a kind of law. Fuller’s principles are fundamental only given a certain conception of how law functions, what gives lawmakers their authority, and what renders citizens vulnerable to the imposition of liability through the courts. This conception does not fit private law, which has a distinctive inner morality. Understanding the inner morality of private law tells us a great deal about the nature of private law and about the different ways in which morality can be part of law. (shrink)

Unwritten constitutional conventions also known as lex non scripta, are under permanent scholarly scrutiny. This does not happen only in the Anglo-Saxon scholarly tradition. When analyzing the issues of unwritten law, a considerable number of representatives of this tradition, starting with W. Blackstone and finishing with contemporary British and American scholars, also talk about the existence of constitutional conventions. It should also be noted that issues pertaining to unwritten law and issues of conventions in particular, are often (...) mentioned and analyzed in the works of scholars of the Roman-Germanic legal tradition. Italian, French, German and Czech scholars take account of constitutional conventions, analyze their features and hold discourse on their future. However, in the course of scholarly debate, the issues of constitutional conventions have been dealt with in a fairly controversial manner. Even though individual scholars recognize constitutional conventions, the variety of opinions and conceptions is too large to form a uniform understanding. (shrink)

Beginning with the question of who constitutes the firm, this article seeks to explore the historical evolution of concepts such as corporate social responsibility, corporate accountability, corporate social responsiveness, corporate social performance, stakeholder theory, and corporate citizenship. In close parallel to these changes are differences in interpretation from Anglo—American and Continental European perspectives. The author defends that the ultimate reasons behind these differences are of a philosophical nature, affecting both the anthropology and the political theory dominant in each of these (...) cultures. Philosophically, anglo-american culture may be described as individualistic, legalistic, pragmatist and with an understanding of rights as freedom from state intervention. Continental European culture, on the other hand, is more community-oriented, more dependent on unwritten laws or customs, less results-driven or more appreciative of the intrinsic value of activities and with an understanding of rights as freedom to participate in social goods and decisions. In the end, a twist is introduced in the meaning of corporate citizenship: beyond referring to the firm as a citizen of the state, it now signifies and analyzes the rights and responsibilities of the different "citizens" comprising the corporate polity. This new proposal constitutes the author's normative response to the initial research query. (shrink)

This essay claims that a rupture between two languages permeates human rights discourse in contemporary Anglo-American legal thought. Human rights law is no exception. The one language is written in the sense that a signifying relation inscribed by institutional authors represents concepts. Theories of law have shared such a preoccupation with concepts. Legal rules, doctrines, principles, rights and duties exemplify legal concepts. One is mindful of the dominant tradition of Anglo-American conceptual jurisprudence in this regard. Words have been thought to (...) copy ready-made concepts. Acts of intellectualisation and the accompanying analytic technique have excluded a consideration of a very different sense of legal language. The second sense of a language concentrates upon unwritten acts of meaning which lack a discrete and assignable author. This essay aims to unconceal the importance of an unauthored language. Drawing from Edmund Husserl’s early writings, particularly his Logical Investigations, I shall argue that an unwritten language embodies the written language with acts of meaning. An act of meaning confers one’s experiential body into the content of a concept signified in a written language. In order to understand the importance of such pre-legal acts of meaning in human rights laws, I begin by outlining how universal human rights have been signified as universal by virtue of their content-independence. I then raise the problem of the exclusion of social-cultural phenomena as elements of human rights laws. The clue to this exclusionary character of human rights law rests in the analytic leap from an unwritten to a written legal language. The essay then addresses the effort to link legality with the social world: namely, the effort of grounding legality in a social convention. I examine how a social convention itself is conceptualized, leaving the remainder of acts of meaning. This failure of social conventions to access social-cultural phenomena encourages me to turn to acts of meaning as such acts were understood by Edmund Husserl in his earlier works. Meaning-constituting acts exist prior to intuitions and prior to social conventions. This priority exists analytically as well as phenomenologically. In order to exemplify this prior character of acts of meaning, I retrieve Antigone’s experiential knowledge in Sophocles’ Antigone. Antigone’s unwritten laws are characterized by an absence of mediating concepts. I then identify several elements of an act of meaning in an unwritten language: the experiential body as the source of the acts of meaning, praeiudicia (prejudgements), collective memories, the act character of meaning, and the act of interpretation of social behaviour. My final section raises the prospect of whether human rights can be considered universal if acts of meaning are that important in the identity of a law. (shrink)

Abstract: William Conklin takes on Hegel’s interpretation of Sophocles’ Antigone in this essay. Hegel asked what makes human laws human and what makes divine laws divine? After outlining Hegel’s interpretation of Antigone in the light of this issue, Conklin argues that we must address what makes human law law? and what makes divine law law? Taking his cue from Michel Foucault’s “What is an Author?”, the key to understanding Sophocles’ Antigone and Hegel’s interpretation to it, according to Conklin, (...) is the relationship between legal authority and an author. Antigone’s divine law opposes Creon’s human law in terms of whether the sense of legal authority presupposes an author. Antigone’s tribe recognises divine laws as nested in an impersonal Fate or Moira common to the Helenes as experienced through rituals and other personal experiences. Such an unwritten law lacks an author “whose origin we know not when”. The city-state’s citizens recognize authority in terms of whether a law has a source in a juridical representer of an invisible author. The invisible author is the city-state external to the representers. The representers interpret human laws in a manner which tries to access the invisible author. What becomes important is that philosophical consciousness observes how the characteristics of the two senses of legal authority clash. (shrink)

The Phoenician Women, Euripides’ peculiar retelling and refashioning of the Theban myth, offers a portrait of Antigone before she becomes the actor we mostly know today from Sophocles’ play. In this under-studied Greek tragedy, Euripides portrays the political and epistemological dissolution that allows for Antigone’s appearance in public. Whereas Sophocles’ Antigone appears on stage ready to confront Creon with her appeal to the universal unwritten laws of the gods and later dissolves into the female lamenting a lost womanhood, (...) Euripides’ Antigone experiences the opposite journey, thereby offering insights into the conditions that allow for her exposure in the political arena. A speech by Eteocles at the center of the play questions the existence of absolutes, calls injustice beautiful, and opens the door for Antigone’s entrance into the public sphere. With this speech Eteocles challenges us to consider the conditions of political openness in the modern age. (shrink)

This paper, responding to recent work by Tony Burns, has two main interpretive purposes first, to explain in what sense Aristotle's natural justice is natural, yet variable; and second, to explain why Aristotle interpreted Antigone's defence as an appeal to natural law (rather than, say, to particular unwritten law). This requires a careful untangling of Aristotle's usage of 'natural' in several different senses, both descriptive and normative. In short, it is normatively natural for humans to excel at what is (...) distinctive of their descriptive nature. Since human descriptive nature is flexible, so is what is normatively natural for humans. And it is a matter of natural justice that one must not be hindered from or punished for doing what is normatively natural. This Aristotelian line of thought is then briefly explored as it reappears in Edmund Burke's discussion of natural law. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Antigone-Effect and the Oedipal CurseToward a Promiscuous NatalityBonnie HonigMen, though they must die, are not born in order to die but in order to begin.—Hannah Arendt, The Human ConditionIn Judith Butler’s book Antigone’s Claim, “promiscuous obedience” is the proposed response to a world constituted by “unwritten laws, aberrant transmissions” (Butler 2000). The worldly condition of “unwritten laws, aberrant transmissions” names an aspect of Antigone’s (...) situation unmentioned by Sina Kramer in her essay on Butler’s New Humanism: the curse. Antigone mourns and desires under the sign of a curse that consigns her forever to a desire that will be unrequited, and a mourning that will never achieve what we now call closure.What is the curse identified by Butler? In Oedipus at Colonus, Oedipus says to his daughters (speaking about himself), “From none did you have love more than from this man, without whom you will now spend the remainder of your life” (Trans. H. Lloyd-Jones 1994, 1617–19, qtd. in Butler 2000, 60). It certainly sounds like a curse! But what sort of a curse? 1Focusing on Antigone, Butler says Oedipus’s “words... demand that for all time she have no man except for the man who is dead... this is a demand, [End Page 41] a curse, made by Oedipus, who positions himself as her only one” (60). But what Butler calls the curse is actually, or at least also, Oedipus’s statement of gratitude and debt. If Oedipus places himself in a relationship of exclusivity with his daughters, he does so because of the singularity of his debt to them at the time of his death. Here is the longer passage (from a different translation): “My children, on this day your father no longer exists. Now I have perished utterly, and no longer will you bear the burden of tending me, which was no light one, I well know, my children. Yet just one word turns all those toils to nothing, you have been treated as friends by no one more than by this man; and now you will have me with you no longer, through all your days to come” (Trans. R. C. Jebb 1889, 1612–19).2Although Oedipus seems to gift his daughters with freedom when he claims that “no longer will [they] bear the burden of tending” to their father, he also tethers his daughters to himself forever when he says his gratitude to his daughters is so immense that no one will ever love them like he does: they have been, and likely will always be, loved best and most (“treated as friends”) “by no one more than by this man,” their dead father, for all their “days to come” (in the R. C. Jebb translation) or for “the remainder of your life” (in the H. Lloyd-Jones translation). Whether as a statement of love or friendship (the translations vary), the speech both thanks and curses, pressing on us awareness of the intimate closeness of those two speech acts in a way that recalls Derrida’s analysis of the undecidability of the gift (Derrida 1995, 97).For Butler, the speech is a cursed command that Antigone should never love another as much as she loves her father. “His words... demand that for all time she have no man except for the man who is dead, and though this is a demand, a curse, made by Oedipus, who positions himself as her only one, it is clear that she both honors and disobeys this curse as she displaces her life for her father onto her brother” (60). But Oedipus says something a bit different: no one will ever love Antigone as much as he now does. On the one reading he dooms her to be forever unloving; on the other, unlovable or, simply, unloved.Antigone will love, however, and so, since Butler assumes the curse is that Antigone should not love, Butler sees Antigone’s love for her dead brother as a way to both carry and transgress the curse under which she operates. Loving a dead man is Antigone’s promiscuously obedient way to obey and subvert... (shrink)

Cohen′s critical remarks on natural-law theories argue that the identification between unwritten law and written Torah, which he suggests in his opus postumum, cannot mean that written Torah should be understood as a dogmatic code of natural law. This identification has to be understood on the basis of the constitutive relation of the written Torah to the oral one and has implications in view of a theory of reason: following the analogy of written Torah, the a priori of reason (...) turns out to be like a code, whose canonical authority is always presupposed although it is rewritten like a palimpsest at every new application. (shrink)

I will take it that general intelligence is intelligence of the kind that a typical human being—Fred, say—manifests in his role as a cognitive agent, that is, as an acquirer, receiver and circulator of knowledge in his cognitive economy. Framed in these terms, the word “general” underserves our ends. Hereafter our questions will bear upon the all-purpose intelligence of beings like Fred. Frederika appears as Fred’s AI-counterpart, not as a fully programmed and engineered being, but as a presently unrealized theoretical (...) construct. Our basic question is whether it is in principle possible to equip Frederika to do what Fred does as an all-purpose participant in his own cognitive economy. Can she achieve a sufficiency of relevant similarity to him to allow us to say that she herself can do what Fred can do, perhaps even better? One of the things that Fred can do—or at least could learn from experience to do—is discharge the duties of an Appeals Court judge. As set down in the ancient doctrine of lex non scripta, Fred must be able to detect, understand and correctly apply certain tacit and implicit rules of law which defy express propositional formulation and linguistic articulation. Fred has an even more widespread capacity for the epistemically tacit and implicit, clearly one of his most cost-saving kinds of intelligence. Indeed, most by far of what Fred will ever know he will know tacitly and implicitly. So we must ask: how tightly bound to the peculiarities of Fred’s cognitive enablement conditions is the character of the intelligence that he manifests? And how far down Fred’s causal make-up does intelligence actually go? (shrink)

On the Life of Abraham displays Philo's philosophical, exegetical, and literary genius at its best. Philo begins by introducing the biblical figures Enos, Enoch, Noah, Abraham, Isaac, and Jacob as unwritten laws. Then, interweaving literal, ethical, and allegorical interpretations, Philo presents the life and achievements of Abraham, founder of the Jewish nation, in the form of a Greco-Roman bios, or biography. Ellen Birnbaum and John Dillon explain why and how this work is important within the context of Philo's (...) own oeuvre, early Jewish and Christian exegesis, and ancient philosophy. They also offer a new English translation and detailed analyses, in which they elucidate the meaning of Philo's thought, including his perplexing notion that Israel's ancestors were laws in themselves. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:The Age of Grace: “Charis” in Early Greek PoetryDana R. SmithThe Age of Grace: “Charis” in Early Greek Poetry, by Bonnie MacLachlan; xxi & 192 pp. Princeton: Princeton University Press, 1992, $29.95.Bonnie MacLachlan has two concerns in this book. First, she sees early charis, conventionally and inadequately translated as “grace,” as the result of feeling, concrete action, and sometimes concrete objects, fused in such a way that early (...) Greeks did not clearly distinguish these as separate aspects. Second, she focuses on the experience of beauty or pleasure as a crucial part of reciprocity in charis, and argues that many of the now-fashionable models from the social sciences, such as those dealing with reciprocal exchange of goods and favors, are insufficient to account for this particular dynamic of allurement. What later ages sensed, and what we sense, as two or more different kinds of charis “may not have been sensed as such by the archaic Greek mind.” Rather, the early Greeks possessed an integrated sense of these fragments as part of a single experience. “A charis-event, provoked by moral or aesthetic beauty, was disarming; it broke down the barriers of the self, and it demanded that the beneficiary reach out to another.” This study combines extremely able discussions of different sides of this crucial concept with a large vision of their integration into a coherent whole: “[Charis] was the moral glue of their society, linking such other central moral ideas as timê [“honor,” “prerogative,” “price”], dikê [“due portion,” “justice”], themis [“unwritten law”], xenia [“requital of gifts and hospitality”], and aidôs [“reverence,” “awe”].”How well does MacLachlan demonstrate this twofold idea? She deserves high praise for setting forth the essential passages of her authors clearly and succinctly, for giving numerous insights into them, for adducing much pertinent scholarship, and certainly for furthering the development of her important thesis. Her discussion of the earliest conception of charis (chap. 2, “The Charis of Achilles”), focused mainly on Homer, with material from the Homeric Hymns and Hesiod, gives a sensitive and persuasive account of relations among charis, timê, and dikê. She makes excellent points about specific perceptions of beauty, especially visual, although one comes away a bit uncertain as to how these aspects all cohere, and also as to whether there are differences in charis between the Iliad and the Odyssey. Her discussion of the cult dimensions of charis (chap. 3, “The Charites”), while fascinating in itself, contains little direction for using this information so as to understand the thesis. She gives careful readings of her examples of erotic and social charis (chaps. 4 and 5, “Erotic Charis” and “Social Charis”), clearly identifying types that contrast with the earlier prototypical experience, although sometimes her criticism of these is more implicit than stated. A more forceful definition of the “problem” of erotic charis, for example, would have helped unify this discussion with that of erotic charis in Aeschylus. Her discussion of Pindar and Bacchylides (6, “Epinician Charis”), perhaps the high point of the book, shows the richest ties to the multi-dimensional Homeric charis; here we return clearly to the topic of [End Page 172] beauty, see the pertinence of some of the cult information, and sense the transformational dynamics of charis as profoundly important for this genre of poems. She leaves somewhat open, however, the question of whether charis is a single thing in Pindar. The chapter on Aeschylus (7, “Charis in the Oresteia”) presents a powerful reading of different kinds of charis in conflict, private versus public, resulting in a unified view of the trilogy as a whole. Once more we note different senses of charis, but in a way that highlights their collision: the duality of charis is further brought into relation with other dualities, such as that of dikê. This chapter connects well with other parts of the book; erotic and false charis become important issues.If there is a criticism to make of this book, it is that MacLachlan does not do quite enough to work out the relations between her provocative thesis and her discussions of particular poems. Some sections are too dissertation-like in presenting evidence, and more thought about the... (shrink)

Law is a body of rules whether formal, written, informal or unwritten that are used to maintain relative peace and order in any given society. Before the advent of civilization, the Igbo people had their own legal system which though might look different in form from the western law but have the same purpose of guiding man into the state of oughtness. This research paper mirrored the legal and justice system of the Igbo people.

A professor is brought before a secret tribunalin his law faculty for the purpose of decidingthe appropriateness of a student's grade. Thegrounds of the grade appeal are that theprofessor had taught critically instead ofpractically and that he had done so with anacademic bias and prejudice. He is also allegedto have taught philosophy rather than law. After many hours of examination andcross-examination as a defendant and as anexpert witness, the professor, Flink, begins adialogue with a spirit in an effort tounderstand the (...) nature and identity of law. Flink comes to appreciate that law is adisplacing discourse rather than a structure ofcategories signified in an official writing. The analytic method familiar to officials incommon law jurisdictions, Flink comes tounderstand, excludes the experiential meaningsthat are manifested through unwritten gesturesand rituals. Officials embody signs withexperiential expectations and past assumptions.The embodiment of meaning brings life intolegal language. But such an embodiment isforgotten as officials decompose textualfragments and reported social events intoanalytic units. Legal analysis is so successfulthat officials even forget that they hadforgotten something so important as theembodiment of meaning. The professor and the spirit also ask whetherjustice is an `ought' and where one can locatesuch an `ought'. They conclude that there is astructure within which legal officials reason.The exteriority of the structure is anunwritten `ought' realm. But the structurepossesses a gap, which enters into such anunanalysable object-less realm. Analyticreasoning has assumed that reason can take anofficial only so far until she or he mustjourney outside the structure to anunanalysable realm of personal values. However, the embodiment of meanings alsoincorporates unwritten collective values ofwhich officials, precisely because of thesuccess of the analysis project in forgettingthat something was forgotten, have never beenconscious. It is such an unanalysable realmthat grounds or authorises the analyticproject. The exterior authorising origin of theanalytic units of the structure rests upon apossibility that requires faith on the part ofthe officials, a faith that there exists afoundation, radically different from theanalytic units, on the other side of thestructure. The officials can, at best, imagineor picture the authorising origin, located asit is in the unanalysable object-less realmexterior to the written language of thestructure. The imagined origin takes the `form'of a bodiless spirit. The officials are haunted by thepossibility that the structure of humanlyposited rules are ultimately authorised by aspirit. (shrink)

L’investigazione del testo, che pone il «valore di legge» ma che disorienta il diritto accostando al valore la «forza di legge», passa dalla sua scomposizione, dall’interrogazione delle lettere che sono depositate e custodite nei suoi anfratti, negli interstizi. Bisogna, cioè, seguire tanto l’esplicito, la superficie, quanto le tracce disseminate, talvolta nascoste, senza dimenticare che la superficie è tale per il profondo. La ricerca muove da un’opzione ermeneutica. Ogni ricerca presuppone un’ipotesi preliminare, che l’inchiesta abbia già una direzione. In principio era (...) il Verbo e il Verbo si fece carne, ma in un senso peculiare. Nella Seconda Lettera ai Corinzi, Paolo di Tarso disse che «la lettera uccide, lo spirito dà vita», opponendo la Legge cristiana, la buona novella, l’evangelo, la parola orale portata «sulle tavole di carne dei [...] cuori», alla Legge ebraica, antica, immobile, rigida, scritta «su tavole di pietra». Altrove, però, nella Lettera ai Romani, precisò: «Togliamo dunque ogni valore alla legge mediante la fede? Nient’affatto, anzi confermiamo la legge», ove la legge, a cui il valore è qui già legato da una relazione di predicazione, è la lettera giudaica e la fede è lo spirito vivente della rivelazione cristiana. Ecco che il «valore di legge» è la secolarizzazione, più o meno consapevole, di un tema messianico. E, muovendo dalla prospettiva teologica in cui la Legge “significa”, si azzarda che «la lettera uccide chi la ignora». Contro lo spettro paolino, o meglio prima del paolinismo e poi dell’agostinismo, dell’ordine nuovo dello spirito contro la antica, morta, silente, lettera, questa lettura della Legge tenta di farsi carico del peso del testo, di “valorizzarlo” e di non ridurlo a figura, a immagine di altro, ad anagogia o ad allegoria con quel tanto di nichilismo che questa porta con sé, ove la lettera assume valore ancillare. La lettera della Legge è dura, nel senso che è, teologicamente, «scrittura su tavola» ed è, nel Secolo, scrittura incisa su carta. Ha una sua fissità, seppure alterabile. La sua normatività è tutt’uno con la sua inscalfibilità, con la sua resistenza e, dunque, con la sua positività. Ma – per restare dentro l’ordine discorsivo dell’interpretazione della Scrittura – non si avanza una proposta interpretativa masoretica, che venera superstiziosamente la lettera della Scrittura originaria e men che meno il pensiero e la voce di chi la creò e rivelò. Tutto al contrario. Per dirla nel discorso dell’interpretazione delle leggi e, tra esse, della prima legge, la Costituzione, implica il testualismo, ma non nella versione soggettivistica dell’original intent, perché i testi scritti, che sono “cose”, vivono di vita propria, separata dal loro autore (o “firmatario”) e dai lettori, potenzialmente infiniti, e producono sensi e conseguenze inintenzionali. Senza arrivare alla radicale conclusione strutturalista di Roland Barthes, che già nel 1968 decretava La mort de l’auteur, perché lo impedisce – ove ritenuta applicabile alla Costituzione/legge – l’art. 12 delle preleggi che prescrive di ricavare il senso della legge fatto palese (anche) dall’intenzione del legislatore, l’autore si trasfigura in funzione (dell’autore), perde la propria individualità e intenzionalità e si confonde, si disfa, nel discorso, nell’ordine del testo. La scissione strutturalista (e non solo) tra autore e testo nella teoria costituzionale conduce difilato al rigetto delle ragioni dell’originalismo ingenuo delle intenzioni e, con esso, del mito delle origini, ma non porta affatto all’oblio del testo in nome della esclusiva normatività della unwritten o living Constitution: sostiene, anzi, il privilegio della scrittura della legge e non della voce, del corpo e non del senso. Nel mezzo, contro il dualismo tra materia e pensiero, tra il significato immanente alle lettere, “cose scritte” nel testo e il tesoro delle intenzioni di chi scrisse la Costituzione, ciò che conta è la posizione, la “incorporazione”, nel documento costituzionale, nella scrittura che si fa testo nel senso proprio di “tessuto”, del «valore di legge» che, almeno nella “lettera”, è rimasto incorrotto e che quelle lettere hanno agito sul testo che le ha accolte e il testo ha retroagito su quelle nel tempo. Le possibilità discorsive e significanti del valore di legge dipendono, cioè, strutturalmente, dal reticolo di dati interrelati e interdipendenti che lo legano seguendo la logica interna al testo costituzionale. Va da sé che la valorizzazione della (lettera della) Legge presupponga, all’origine, un sottinteso ebraico e, quindi, la lotta alla polemica paolina contro il formalismo conservatore della legge (ebraica). È una polemica simile all’accusa di conservatorismo dell’originalismo testualista. A difesa, il testualismo è conservatore o meno a seconda del testo che serve e della relazione tra il testo dell’origine e le interpretazioni che ne sono seguite. Ma, contro l’originalismo, contro la conversione del testo costituzionale in Sacra Scrittura, la lettura che qui si esperisce si apre al commento – che quel reticolo sappia analizzare – del testo, alla sua significatività mai esaurita, che annulla la concepibilità di un testo originario inteso quale testo “autentico”. (shrink)

Conklin's thesis is that the tradition of modern legal positivism, beginning with Thomas Hobbes, postulated different senses of the invisible as the authorising origin of humanly posited laws. Conklin re-reads the tradition by privileging how the canons share a particular understanding of legal language as written. Leading philosophers who have espoused the tenets of the tradition have assumed that legal language is written and that the authorising origin of humanly posited rules/norms is inaccessible to the written legal language. Conklin's (...) re-reading of the tradition teases out how each of these leading philosophers has postulated that the authorising origin of humanly posited laws is an unanalysable externality to the written language of the legal structure. As such, the authorising origin of posited rules/norms is inaccessible or invisible to their written language. What is this authorising origin? Different forms include an originary author, an a priori concept, and an immediacy of bonding between person and laws. In each case the origin is unwritten in the sense of being inaccessible to the authoritative texts written by the officials of civil institutions of the sovereign state. Conklin sets his thesis in the context of the legal theory of the polis and the pre-polis of Greek tribes. The author claims that the problem is that the tradition of legal positivism of a modern sovereign state excises the experiential, or bodily, meanings from the written language of the posited rules/norms, thereby forgetting the very pre-legal authorising origin of the posited norms that each philosopher admits as offering the finality that legal reasoning demands if it is to be authoritative. (shrink)

Michael Polanyi was one of the great figures of European intellectual life in the 20th century. A highly acclaimed physical chemist in the first period of his career who became a celebrated philosopher after World War II, Polanyi taught in Germany, England, and the United States and associated with many of the leading intellects of his time. His biography has remained unwritten partly because his many and scattered interests in a wide variety of fields, including six subfields of physical (...) chemistry, epistemology, economics, patent law, social and political theory, aesthetics, and theology. This long-awaited volume will be the definitive resource on Polanyi and his work. (shrink)

Ex interiore ipso exeas. Preface. This book reconstructs the history of a still open dialectics between several ethoi, that is, shared codes of unwritten rules, moral traditions, or self-aware attempts at reforming such codes, and ethical theories discussing the nature and justification of such codes and doctrines. Its main claim is that this history neither amounts to a triumphal march of reason dispelling the mist of myth and bigotry nor to some other one-way process heading to some pre-established goal, (...) but instead to a chain of controversies where the partners’ will to win unintentionally yields a wealth of insights on human existence that has still something to teach us. -/- 1. The Hellenic moral tradition. -/- Two different traditions of morality in vi-v century Greece are described. The birth of philosophical questioning of traditional morality and temporal and spatial variation of custom is described within the context of the v century crisis, the demise of traditional aristocratic and tyrannical rule and the birth of democracy. Two conflicting answers to the challenge are reconstructed, namely conventionalist or immoralist theories formulated by the Sophists and the eudemonist and intellectualist Socratic theory. -/- 2. Plato and the Good. -/- Plato’s own reformulation of Socrates rejoinder to the Sophists is reconstructed. His psychological views, his classification of the four cardinal virtues and his political theory are described as parts of a unitary system, culminating in an extremely realist moral ontology identifying the idea of the good with the essence of the (moral and extra-moral) world itself. -/- 3. Aristotle and practical philosophy. -/- Aristotle’s invention of practical philosophy as a field separated from first philosophy is shown to be an implication of his break with Plato moral ultra-realism. Aristotle’s agenda in his moral works is arguably dependent on a polemical intention, namely dismantling Socratic intellectualism. The semi-inductive or virtuously circular method of practical philosophy is illustrated, starting with the received opinions of the better and wiser individuals and trying dialectically to sift what is left of mistake and inconsistency in such opinions, finally trying to correct mistakes and make the overall practical science more consistent. The relationship of individual ethics, or ‘monastics’, with the art and the science of the pater families, or ‘economics’, and the science of the ruler and citizen, or politics, is illustrated. The nature of virtues, or better, excellences of character, is discussed, highlighting the basic role of hexes, or ‘dispositions’. Prudence, or better, practical wisdom, is the focus of the chapter. Its relationship with boùleusis or deliberation is discussed, and its autonomous status vis-à-vis theoretical knowledge is stressed. -/- 4. Cynics and Stoics: ethics as therapy. -/- The chapter provides an overview of Hellenistic ethics, which almost amounts to Hellenistic schools of philosophy, in so far as ‘philosophy’ became in these centuries primarily the name for a way of life. The typical character of the Cynical movement is highlighted, that of a school of life, not a school aimed at providing any kind of intellectual training was to be provided. The various phases of Stoicism are described, and the shifting place that was given to ethics in the Stoic system of idea, culminating in the paradoxical view of ethics, its impossibility in principle notwithstanding, as the only truly significant and necessary part of philosophy. The peculiar character of the Epicurean school is described, a combination of the science of well-being aiming, more than pleasure understood as in the popular view, the reduction of useless suffering, of unnecessary needs, and at a balanced selection of pleasures of the best and most durable kind. -/- 5. Roman and Imperial Moralists. -/- The chapter is dedicated to the reconstruction of a particular kind of literature, whose specific features have long been under-stressed, namely the Roman and Imperial moral literature. Cicero is treated at some length, showing how his own synthesis of various Hellenistic trends is as a truly philosophical enterprise, deserving serious consideration after one or two centuries when he was confined to the role of literate. Epictetus is given pride of place, stressing the novelty of his approach to ethics as cognitive therapy, in this case just following an already existing new wave of interest after nineteenth-century oblivion justified by alleged lack of authentic ‘philosophical’ character. -/- 6. The Hebrew moral tradition. -/- A reconstruction of basic ideas from a few books of the Hebrew Bible is provided, starting with the Prophetic tradition and the focus on God’s mercy as the source of motivation and standard for human behaviour. Then a comparative analysis is undertaken of a parallel tradition, namely the three codifications of the Torah (Law or, better, Instruction), highlighting how a core of moral ideas may be recognized as a basis and preamble of codification of civil law, cultural practice, and regulation of ritual purity. The importance of Levitic is stressed as the turning point when the stress on mercy, typical of the Prophetic tradition, starts being combined with legal tradition yielding the change in the sensibility of the Second Temple time. -/- 7. Second Temple Judaism. -/- This chapter describes the Long March leading from the post-exile Zadokite restoration to the first-century aevi vulgaris. The first topic reconstructed is the Zadokite theology of the double retribution. The second is the alternative Enochic tradition consistently rejecting the central role of the Temple, the Priesthood and worship as atonement for sins and offering as an alternative God’s unlimited mercy and preaching mercy, not sacrifice as the way of behaving requested by God. Wisdom literature, the third subject discusses, is a kind of third way, on the one hand increasingly critical towards the double retribution and ruling theology’s optimism facing the world as it is and on the other mocking at the Enochic current as a band of dreamers and visionaries. The third way consists in disenchantment facing the word as it is combined with a refusal of vain and childish hope of prizes for the righteous, suggesting instead the leading idea of right deeds for righteousness’s sake. Rabbi Hillel, Rabbi Yeshua and Philo of Alexandria are described as the three leading figures at the culminating point of such process of emergence of a new sensibility, gradually including mercy as an essential part of justice and establishing the starting point of both the Rabbinic and the Christian tradition. This starting point consists precisely in the precept of one’s neighbour’s love or of the golden rule, whose meaning is, arguably, more consistent than a long-lasting Christian tradition deriving from John and Augustine made us believe. And Christian morality, vis-à-vis allegedly legalist ‘Ancient Testament’ teachings, is less of a novelty than most early Christian writers announced. -/- 8. Talmudic moral doctrines and proto-Christian paraenesis. -/- The first three sections examine the moral doctrines of so-called 'ethical Treaties' from the Talmud, a group of treaties, among which the best known is Pirke Avot, that were left out of the six "orders" of the canon as they did not fit in any of the six groups of issues ritual or legal on which the division was based. According to Maimonides, their peculiar theme is provided by the Deot, 'opinions', i.e., mental dispositions, that is, the translation of the Greek term hexes and Arab akhlak (in turn providing in this language the name for ethics as such). The three topics I reconstruct are: i) the notion of Torah: The Torah is understood as the world order itself, or as the ‘Wisdom’ that existed even before creation and was "the tool by which the world was built"; however, the Torah is an earthly and human entity, as it was "received" by humans, and from that very moment belongs to them; ii) the relationship between love of God and love of neighbour; the treaties require us to study and practice the Torah ‘for its own sake’, that is, require us to act out of love, not out of fear or hope of reward; iii) the idea of sanctification of daily life: having disappeared with the destruction of the Temple the possibility of any conflict between liturgical service and everyday life, the latter is assumed to be in itself divine service: to give food to the poor has the same value as sacrifices in the Temple, and as an implication, the insistence become recurrent on the goodness of created things in themselves along with a polemic against ascetic currents. The conclusions drawn are: i) the moral teachings of the Talmud and those of Yeshua are, rather than similar, virtually identical; one may safely say that the precept of love and the golden rule are central ones for all Talmudic rabbis, that mercy plays an indispensable role alongside with justice, and the latter is not a different thing from one’s neighbour’s love; ii) a peculiarity of Talmud rabbis facing Yeshua is the idea of study as worship, and knowledge as a source of justice; but this is an idea of Judaism after the Temple's destruction that cannot be attributed to the Pharisees of Yeshua’s time; iii) the relation of study and practice in the Talmud parallels that between faith and deeds in Paul's epistles, that is, respectively faith or learning are a necessary and sufficient condition to be recognized as righteous, but deeds are the inevitable effect of either faith or learning. The last two sections examine first the various Christian currents and then Gnostic para-Christian or non-Christian currents as well as Manicheism. The sayings ascribed to Yeshua are examined first, yielding the conclusion that a close equivalent may be found for every saying in Talmudic literature and yet the whole is ascribed to one rabbi, with rather consistent stress on God’s mercy and unconditional forgiving as the mark of true imitation of God. Thus, Yeshua’s teaching is pure, purest Judaism. The last section describes briefly the galaxy of Gnostic currents and Manicheism, trying to sketch the profile of moral teachings resulting from an encounter of Asian spiritual traditions, Hellenistic lore and sparks of teachings from apocalyptic Jewish currents. -/- 9. Christianity as “philosophy”. -/- The chapter reconstructs the stormy story of several encounters between Christian currents and Hellenistic philosophical schools. The first one was with late Cynicism. Recent, rather controversial, literature discovered the jargon and several rhetorical topics from the Stoic and Cynical popular philosophy in a few books from the New Testament itself. This, far from proving that Rabbi Yeshua himself had been influenced by cynical preachers, is a proof of the necessity to translate the original Christian message in a Greek lexicon deeply impregnated with cynic terminology. The second was with Platonism, yielding the mild and temperate moral teaching of Clemens of Alexandria, teaching the sanctity of nature and the human body, the joy of moderate fruition of ‘natural’ kinds of pleasures, and the beauty of the marital life – in short, the opposite of the standard picture of Medieval Christianity. Ambrose of Milan brings about a different kind of synthesis, namely with Middle Platonism, where Stoic themes prevail. The most shocking case is Augustine, where early Manichean education is overcome in a former phase by a synthesis of Plotinian Neo-Platonism and Christian preaching, yielding a sustained polemic with the Manicheans and rather optimistic views on life and Creation, the body and sexuality, and Hebrew-Judaic tradition not far from Clemens of Alexandria. In a later phase, occasioned by controversy on the opposite front, with such Christian currents as the Pelagians and Donatists, Augustine comes back to heavily anti-Judaic and world-denying ascetic attitudes where is earlier Manichean upbringing seems to emerge again. The tragedy of medieval Christianity will be the later Augustine’s overwhelming influence. A final section is dedicated to the monastic tradition where a curious mixture of world-denying asceticism with an astonishingly penetrating ‘science’ of introspection emerges. -/- 10. Ethics in the Arabic-Islamic Philosophy. -/- The Qurān and the qadit, that is, collections of sayings ascribed to the prophet Muhammad contain a wealth of precepts and catalogues of virtues mirroring moral contents from the Jewish and the Christian traditions, among them the basic notion of imitation of the Deity, where mercy is assumed to be its basic trait. An important tradition within Islam, namely Sufism, stressed to the utmost degree the role of mercy, turning Islam into a mystic doctrine centred on the retreat from the world, abandonment to God’s will, and a peaceful and fraternal attitude to our fellow-beings. A secular literary tradition originating in the Sassanid Empire, the literature of advice to the Prince, had for a time a widespread influence in the newly constituted Arabic-Islamic commonwealth. In a later phase, the legacy of Hellenic philosophy made its way into the intellectual elite of the Islamic world. The first important legacy was Platonic, and the Republic became the main text for Islamic Platonism. In a second phase also Aristotelian and Stoic influence were assimilated. Miskawayh’s treatise was the masterwork at the time Arabic philosophy reached its Zenith. It is a treatment of the soul’s diseases and their remedies, combining the Aristotelian doctrine of the golden mean with the Stoic doctrine of the passions and elements of Galenic medicine. Towards the eleventh-twelve centuries, a war raged among theologians and philosophers, finally won by the former with the disappearance of philosophy as such. The newly established mainstream, yet, was no kind of intolerant fanaticism. It drew from the work of mystic theologian Al-Ghazālī, the best heir of Sufism, teaching a tolerant and peaceful attitude to our fellow-beings and a passive attitude to destiny as an expression of the Divine will. -/- 11. Ethics in the Jewish philosophy. -/- The encounter between the Talmudic tradition and Hellenic philosophy had taken place for the first time in Alexandria at the time of Philo but the two traditions had parted way again. In fact, the kind of Platonic Judaism founded by Philo survived only within Christianity, in the fourth Gospel and then in writings by Clemens of Alexandria. The Talmudic literature had absorbed too a few traits from the Hellenic Philosophy, namely an idea of ethics as care of the self and a role for the education of character as propaedeutic to theoretical knowledge. In the Arabic-Islamic world, a second round started when Jewish authors writing in Arabic undertook the task to prove the full compatibility of the tradition deriving from Tora and Platonic philosophy. The culmination of this attempt is provided by Moshe ben Maimon who tried to use Aristotelian ethics as a language into which the teaching from the Pirke Avot could be translated. -/- 12. The practical philosophy revival in Latin Europe. -/- A reconstruction is carried out of a fresh start of philosophical ethics in Latin Europe at the turn of the Millennium rescuing a Platonic and Augustinian legacy, with Anselm and Peter Abelard. In this phase remarkable innovations are introduced, including Abelard’s claim of the obliging character of erring consciousness. In a second phase, the rediscovery of Nicomachean Ethics thanks to Latin translation of Arabic versions, gives birth to a new wave of ethical studies, recovering the very idea of Aristotelian practical philosophy, with the potential implication of a full legitimization of natural morality, i.e. ethics without Revelation. -/- 13. Scholastic practical philosophy: Thomas Aquinas. -/- Aquinas’s ethics is theological ethics out of which it would be vain to try to extract self-contained philosophical ethics. His treatment of topics in philosophical ethics, yet, does not boil down to the repetition of Aristotelian arguments but is rather a creative reshaping of such arguments. For example, he introduces also in the practical philosophy a first principle parallel to the principle of non-contradiction; and he also carries out a synthesis of Aristotelianism, Stoicism, neo-Platonism. Even though it is essentially moral theology, Aquinas’s doctrine - unlike Augustine – grants full citizenship to "natural" morality, firstly by rejecting the claim that the corruption of human nature due to the original sin is so radical as to leave pure nature incapable of moral goodness. The doctrine is presented in a more sophisticated formulation in a few of the Quaestiones such as De Malo and De Veritate, in the Summa contra Gentes and in the commentaries to Aristotle than in the famous Summa Theologica, but the latter work includes the only or the largest exposition of some decisive part of the theory. Thus, the Summa Theologica should be read for what it is more than criticized for not being what it was not meant to be. It was not meant to be the brilliant synthesis of all that Reason he had been able to produce with what Revelation had added about which the Neo-Thomists used to dream, but rather a manual for the training of preachers and confessors, where theoretical claims are not too ambitious, and a few serious tensions are left. Besides a jump between the Prima Secundae and the Secunda Secundae, being the former an essay in virtue theory and the latter a handbook for confessors, the most serious tension is perhaps the one between the ethics of right reason presented in most of Prima Secundae and the eudemonistic ethics developed in quaestiones 1-5 of the same part; the alternative ethical theory which also may be found in Augustine, the Stoic view of a cosmic reason eventually coincident with the moral law, was believed by Anselm (followed by John Duns Scotus and William of Ockham) to be incompatible with eudemonism. It is questionable whether Thomas was able to solve the tension proving that it is just an apparent tension, in so far as the right reason and bliss derived from the knowledge of God tend to coincide, but this is just a conjecture. Thomas’s ethics is a virtue ethics, not a law-based one, and moral judgment focuses on the virtues, particularly charity, not on the commandments and even less on absolute prohibitions; Thomas, however, would not have considered a drastic alternative between law and the virtues such as the one which has been advanced in late twentieth-century philosophy to be justified. Nonetheless, when it discusses ‘special’ virtues, it ceases to be an ethics of virtue and becomes a disappointing and often contradictory discussion of legal and illegal acts. Such a discussion takes most of the time ‘reasonable’ middle positions on controversial issues but not the alternative approach that Aristotelianism would have made possible; even when some occasional Aristotelian claim shows up, such as money’s barrenness as a reason against usury, this seems to be made by an author who apparently ignores the Aristotelian Thomas of the Prima Secundae. It is an ethic of human autonomy which recognizes the binding character of the individual conscience and, potentially, even a duty to disobey unjust laws. It is true that what Thomas writes in his discussion of the death penalty and persecution of heretics is simply disgusting, and yet we should blame Thomas the man, not the Thomist ethical theory. Finally, Thomas’s ethics is no way an ethical ‘absolutism’, as both the traditionalist Catholic theologians and secularists tend to believe, but rather an ethic of prudential judgment on the individual case. Exceptions to this approach – or better the result of logical fallacies – are provided by the thesis of the absolute character of negative precepts and of the existence of so-called intrinsically evil acts, a thesis that would simply cease to make sense in the light of Thomas’s own distinction between human act and natural act, carrying consequences that Thomas did not live long enough to draw. -/- 14. Scholastic practical philosophy: John Duns Scotus and William of Ockham. A reconstruction is carried out of the ethical doctrines by both most authoritative Franciscan doctors. Their continuity with Aquinas is vindicated against prejudice carried by centuries of polemics within the Catholic Church and tendentious disparaging of both as forerunners of execrable Reformation. Besides aspects of continuity, also the important novelties are illustrated, first John’s abandonment of Aquinas’s and Augustine’s eudemonism, asserting righteousness for righteousness’s sake, and then William’s explicit defence of the philosopher’s virtues, that is, natural morality, and his solution to the dilemma of God’s omnipotence and the universal validity of natural law extending to God himself. -/- 15. Aristotelianism interpreted by the Magistri Artium. -/- A reconstruction of the until recently forgotten ethical doctrines by the Parisian Magistri Artium, falsely depicted as ‘Averroists’ and either deprecated as heretics or mistaken for predecessors of modern secularism. In fact, they illustrate a view of ‘natural’ virtue as may be understood by human reason without the assistance by Revelation. -/- Etiamsi daremus Deum non esse. Intermediate considerations. Three considerations may be suggested by the story told in the book. The first one is that intellectual histories have been mounted in the past with the same state of mind as one may mount a war chariot. Such constructions are not very helpful as tools for understanding the past. Wars waged in the past have left the field obstructed by ruins not easy to remove even by those historians who have animated by an impartial academic motivation. They have been influenced too by consequences of past emphasis on some authors and damnatio capitis suffered by others, by stratifications left on sources by secondary literature and translations, by allotment of originally close sources to different literary genres, by the monopolization of religious texts by churches with full cooperation by secular scholars who still fear contamination. The second one is that aware or unaware ethnocentrism has carried various calamities to our comprehension of the past. Their last vestiges have surfaced again in the semi-scholarly discussion on the idea of Europe occasioned by the debate on a project of a European Constitution. Mention of Europe’s Christian roots has been the clumsiest move. Proclamations of such roots were so obvious in what they affirmed as they were totally off-path concerning what they omitted, namely that he modern European moral tradition included legacies from Middle-Eastern wisdom, Hellenic philosophy, Roman Imperial legal literature, and, besides, a Jewish legacy in turn incorporating other more ancient Middle-Eastern legacies and which has been partly conveyed by Christianity. And the Islamic-Arabic philosophy too, in so far it made the Nicomachean Ethics available to Latin Christian scholars, is one more of Europe’s roots. The third is that religious traditionalists and secularist fundamentalists have gone hand in hand for a couple of centuries in either extolling or deprecating the allegedly Modern idea of Ethics without God, first formulated by Hugo Grotius with the claim that natural law would still be valid ‘etiamsi daremus – quod sine summo scelere dari potest – Deum non esse’. The facts are, firstly, that this is not an irreligious claim and Grotius was just a pious and meek Christian and, secondly, that it is not a ‘modern’ claim but rather one more formulation of the claim that there is a natural morality, independent of divine revelation, a claim shared by Moshe ben Maimon, Aquinas and William of Ockham. -/- . (shrink)

Throughout the medieval period law was seen as the product of social groups and associations that formed legal orders, as Max Weber elaborates, "either constituted in its membership by such objective characteristics of birth, political, ethnic, or religious denomination, mode of life or occupation, or arose through the process of explicit fraternization." During the second half of the Middle Ages, roughly the tenth through fifteenth centuries, there were "several distinct types of law, sometimes competing, occasionally overlapping, invariably invoking different traditions, (...) jurisdictions and modes of operation." Types of law included imperial and royal edicts and statutes, canon law, unwritten customary law of tribes and localities, written Germanic law, residual Roman law, municipal statutes, the law of merchants and of guilds, and in England the common law, on the continent the Roman law of jurists after the twelfth century revival of the Justinian Code. The types of courts included various imperial and royal courts, ecclesiastical courts, manorial or seigniorial courts, village courts, municipal courts in cities, merchant courts, and guild courts. Serving as judges in these courts, respectively, were kings or their appointees, Bishops and abbots, barons or lords of the manor or their appointees, local lay leaders, leading burghers, merchants, and members of the guild. These various positions were not wholly separate-many high government officials were in religious orders, while Churches held landed estates that came with local judicial responsibilities. "Bishops, abbots and prioresses, as lords of temporal possessions, controlled manorial or honorial courts at which they sometimes, though not generally, presided in person, exercising responsibility for criminal and customary law." "The result was the existence of numerous law communities," Weber wrote, "the autonomous jurisdictions of which overlapped, the compulsory, political association being only one such autonomous jurisdiction in so far as it existed at all." Jurisdictional rules for judicial tribunals and the laws to be applied related to the persons involved and the subject matter at issue. The personality principle linked law to a person's community or association, and under feudalism property ownership came wrapped together with the right to judge those tied to the property. "Demarcation disputes between these laws and courts were numerous." Jurisdictional conflicts arose especially in relation to ecclesiastical courts, which claimed broad jurisdiction over personal status laws (marriage, divorce, inheritance) and moral crimes, as well as church property and personnel, matters which regularly overlapped with the jurisdiction of other courts. Furthermore, different bodies of law could be applicable in a given court in a given case. "It was common to find many different codes of customary law in force in the same kingdom, town or village, even in the same house, if the ninth century bishop Agobard of Lyons is to be believed when he says, 'It often happened that five mem were present or sitting together, and not one of them had the same law as another.'" In long settled areas, the personal law of communities became local customary law. People living within cities were subject to municipal statutes and customary law on certain matters (penal law, procedural), and the community law to which they were attached. (shrink)

The purpose of Plato’s investigation of justice in the ideal polis of the Republic is neither to formulate an abstract conception of justice in itself nor to work out a blueprint for the perfectly just state. Rather, through the contemplation of an ideal social/political order where justice might be found “writ large,” Plato intends to bring about the actualization of justice in the “polity” of the individual soul. It must be kept in mind, of course, that, while possessing a notion (...) of the individual, the Greeks lacked our modern, Cartesian conception of subjectivity, burdened as it is with the existential task of creating and sustaining a meaningful cosmos. But precisely for this reason the ancients had a clearer perspective of the synergistic and mutually determinative dialectic that conjoins the individual and the state, a conjunction grounded in the ethical. This can be seen, Hegel suggests, in terms of the “unwritten and infallible law” that Antigone takes to be the “law of the gods” which “is right because it is what is right,” placing the individual “within the ethical substance; and this substance is thus the essence of self-consciousness.”. (shrink)

Michael Polanyi was one of the great figures of European intellectual life in the 20th century. A highly acclaimed physical chemist in the first period of his career who became a celebrated philosopher after World War II, Polanyi taught in Germany, England, and the United States and associated with many of the leading intellects of his time. His biography has remained unwritten partly because his many and scattered interests in a wide variety of fields, including six subfields of physical (...) chemistry, epistemology, economics, patent law, social and political theory, aesthetics, and theology. This long-awaited volume will be the definitive resource on Polanyi and his work. (shrink)

The aim of the work is to preent the connection between the conception of One - έν and the Good - τάγαθόν in Plato's late writings , in the fragments of writings of the members of the First Plato Academy: Philip of Opus , Eudoxos of Knidos, Speusippus, Xenocrates and the chosen Aristotle's writings . In the analysis of the texts all the derivatives of the conception of One and the Good are taken into account. As a research hypothesis the (...) distinction between έν and τό έν is introduced. This distinction can be seen in comprehending έν as One and τό έν as the One . The One is, first of all, a simple and indivisible being.The work consists of two main parts. The first one is devoted to the analysis of the conception of One - έν and the second contains the analysis of the conception of the Good - τάγαθόν. Each part is made up of two chapters, the first of which illustrates the researched conceptions in the chosen Plato's dialogues, his Unwritten Teaching and the fragments of writings of the members of First Plato Academy, and the second shows these conceptions in Aristotle's philosophy. There is a connection between researched conceptions in Plato's philosophy, what is clearly illustrated in the dialogues the Philebus and the Laws. In the Philebus the Good is One, although it consists of many elements, but Plato does not give a reason for that. In the Laws every watchman must be aware that the good is the one, although it is manifested in many different ways. The One principle is identified with the Good in Plato's Unwritten Teaching. The connection can be also noticed in Aristotle's conception of First Mover , which is the God, the highest Good and the One , because it is, as a pure act, the simple and indivisible being. (shrink)