This paper reinvestigates the question of liberal neutrality. We contend that current liberal discussions have been dominated—if not hijacked—by one particular interpretation of what neutrality could imply: namely, exclusive neutrality, aiming to exclude religious and cultural expressions from the public sphere. We will argue that this is merely one among several relevant interpretations. To substantiate our claim, we will first elaborate upon inclusive neutrality by formulating two supplementary interpretations: proportional neutrality and compensatory neutrality. Second, we will argue that inclusive proportional (...) neutrality is the most appropriate interpretation in many contexts. Our discussion highlights the fact that some political disputes should not be seen in terms of the antithesis between liberal neutrality and illiberal alternatives but, instead, as a clash between various valid but incompatible interpretations of what liberal neutrality may imply. (shrink)

I analyze three forms of the slippery slope argument (two logical and one empirical) using two questions: 1) in the context of what kind of norms are we considering a first step on a possible slope: statute law, precedent law, positive morality, or critical morality? 2) What is meant by "If we allow this first step"? The conclusion is that the argument's greatest force is in a context of institutionalized norms, like law, whereas its importance in morality is only marginal.

Concepts such as law, religion or morality may refer both to a practice (or process) and to a doctrine (or product). My thesis is that we should not regard these as separate phenomena, but as two partly incompatible models of the same phenomenon. Law, religion and morality are therefore essentially ambiguous concepts (EAC). An EAC is a concept which refers to a dynamic phenomenon that may only be described and modeled in at least two different ways that are each essentially (...) incomplete and which are partly incompatible with each other. This means that we have to choose between either an incomplete description or an incoherent one. An EAC resembles an essentially contested concept (ECC) as both allow of conflicting conceptions. However, for an ECC the explanation of pluralism lies in the evaluative character of the concept, for an EAC it lies in the dynamic character of the phenomenon. The insight that many of our social concepts are essentially ambiguous may provide a better understanding of social and customary rules and of the debate between legal positivism and its opponents. I reconstruct the positions of three contributors to this debate, Fuller, Hart and Dworkin. An EAC framework offers a better insight into their theories, highlights the deficiencies, and explains why their debates were characterized by serious misunderstandings. (shrink)

Two basic models of law and morality -- Essentially ambiguous concepts -- The debate between Fuller, Hart, and Dworkin -- The relations between law and morality -- A pluralist framework -- What is Legal Interactionism? -- Understanding the dynamics of law --Three apparent anomalies in modern law -- The necessary and contingent relationship between law and morality.

In most Western countries, health law bioethics are strongly intertwined. This strong connection is the result of some specific factors that, in the early years of these disciplines, facilitated a rapid development of both. In this paper, I analyse these factors and construe a development theory existing of three phases, or ideal‐typical models. In the moralistic‐paternalistic model, there is almost no health law of explicit medical ethics and the little law there is is usually based on traditional morality, combined with (...) paternalist motives, the objections to this modal are that its paternalism and moralism are unacceptable, that it is too static and knows no external control mechanisms. In the liberal model, which is now dominant on most Western countries, law and ethics closely cooperate and converge, both disciplines use the same framework for analysis: they are product‐oriented rather than practice‐oriented; they use the same conceptual categories, they focus on the minimally decent rather than the ideal, and they are committed to the same substantive normative theory in which patient autonomy and patient rights are central. However, each of these four characteristics also result in a certain one‐sidedness. In some countries, a third model is emerging. In this postliberal model, health law is more modest and acknowledges its inherent and normative limits, whereas ethics takes a richer and most ambitious self image. As a result health law and ethics will partly diverge again. (shrink)

Since Gallie introduced the notion of essentially contested concepts, it has given rise to considerable debate and confusion. The aim of this paper is to bring clarity to these debates by offering a critical reconstruction of the notion of essential contestedness. I argue that we should understand essentially contestable concepts as concepts that refer to ideals or to concepts and phenomena that can only be fully understood in light of ideals and that are, as a consequence, open to pervasive contestation. (...) Moreover, some concepts are second-order essentially contested: it may be a matter of ongoing dispute as to whether they should be regarded as essentially contested. The concept of law is an example. Some authors argue that it is ideal-oriented, whereas others claim it is not. This insight that ‘law’ is a second-order essentially contested concept may explain some of the disagreements between legal positivism and its various opponents. (shrink)

Is the law good? How can it be improved? These questions are frequently addressed, both in traditional doctrinal research and in interdisciplinary legal research. In this article, I elaborate a general argumentative framework for justifying evaluations and recommendations for legislative reform, and I identify the chains of argument for making evaluations and recommendations. This may help researchers to make their arguments explicit and transparent, and then to justify the choices made for each of the steps in the argument. This enables (...) readers - as well as authors - to assess whether the argument’s conclusions are sound and convincing. A key problem in making these arguments concerns the choice of standards for evaluation. I suggest that they can be best understood in terms of the underlying values. In order to make all-things-considered evaluations and normative recommendations, interdisciplinary cooperation between doctrinal, socio-legal, and legal-philosophical researchers is necessary. Therefore, individual researchers will usually have to settle for pro tanto evaluations and recommendations. (shrink)

In this article we present a conceptual overview of relevant interpretations of what state neutrality may imply; we suggest a distinction between inclusive neutrality and exclusive neutrality. This distinction provides a useful framework for understanding the several positions as presented by the parties in the Lautsi case. We conclude by suggesting a solution of the Lautsi case that might provide a more viable solution.

Ethical analysis may result in recommendations for legal reform. This article discusses the problem of how academic researchers can go from ethical normative judgments to recommendations for law reform. It develops a methodological framework for what may be called ‘ethical transplants’: transplanting ethical normative judgments into legislation. It is an inventory of the issues that need to be addressed, but not a substantive normative theory. It may be especially helpful for Ph.D. students and beginning researchers working in interdisciplinary projects combining (...) ethical and legal analysis.I distinguish three stages in the process from ethics to law: translation, transformation, and incorporation. The latter stage can be divided into three clusters of issues, these being legal, empirical, and normative ones. Most of the philosophical literature on the legal enforcement of morals focuses on the normative issues. My aim is to broaden the perspective in two ways. First, I show that this is only one relevant issue and that we should address legal and empirical issues and the processes of translation and transformation as well. Second, I argue that we should pay more attention to pluralism and variation. (shrink)

This chapter contains sections titled: Law Morality From Morality to Law From Law to Morality Converging Law and Morality Diverging Law and Morality: Beyond the Liberal Model References Further reading.

The central thesis of this paper is that, for most issues of multiculturalism, regarding them as a problem of tolerance puts us on the wrong track because there are certain biases inherent in the principle of tolerance. These biases – individualism, combined with a focus on religion and a focus on beliefs rather than on persons or practices – can be regarded as distinctly Protestant. Extending the scope of tolerance may seem a solution but if we really want to counter (...) these biases, the principle of tolerance becomes so general that it loses any distinctive meaning. Therefore, we should accept the limited scope of tolerance and its biases. The principle of tolerance can still be useful for some problems where there is a clear and direct link to political or religious beliefs. Moreover, it should be cherished as a more general attitude or practice in Dutch society. For most problems of multiculturalism, however, we should appeal to broader theoretical frameworks that do justice to persons and practices. (shrink)

Moral ideals should not be seen as simple and purely personal, but as complex values with a social dimension that transcend attempts to formulate or realize them. Orientation towards ideals needs a realistic component: people should identify with the quest for an ideal, not with the ideal itself, and consider the possibility of negative consequences of their pursuit. Such realism about ideals includes acknowledging that ideals are not the only, nor the most important, motivating force of morality.

A central concept in Dutch health law is the care of a good caregiver. We find this standard in various statutes and in legal doctrine. This concept is, however, vague and open and must be made more concrete in professional practice, in moral theory, and in law. In this article, we explore the implications of this complex standard and analyze what moral philosophy and jurisprudence can contribute to its clarification and implementation in professional practice and law. We start with some (...) reflections on how practitioners see this norm and try to live up to it. (shrink)

Ideals are important in social reality, but they have been neglected in theories of law, politics, and morality. This book has the role of ideals as its central theme. More specifically, it argues that ideals are necessary to understand pluralism, that they are key elements in controversy and debate, and that they enable development. It combines theoretical analysis of the concept of ideals with discussion of concrete debates and cases, including philosophical debates about politics and equality, sociological studies of the (...) diverse interpretations of the rule of law, and accounts of the development of environmental law and privacy law. Thus, the functioning of ideals is critically examined, showing the merits and limitations of an ideal-oriented approach. (shrink)

Rawls’ notion of reflective equilibrium has a hybrid character. It is embedded in the pragmatist tradition, but also includes various Kantian and other non-pragmatist elements. I argue that we should discard all non-pragmatist elements and develop reflective equilibrium in a consistently pragmatist manner. I argue that this pragmatist approach is the best way to defend reflective equilibrium against various criticisms, partly by embracing the critiques as advantages. I begin with discussing how each of the three versions of reflective equilibrium in (...) Rawls’ work combines pragmatist and non-pragmatist elements. For Rawls, the primary purpose of reflective equilibrium is epistemic: namely, to construct moral theories or judgments. In a pragmatist approach, there are three connected purposes for moral inquiry: right action, reliable understanding and self-improvement. Depending on the specific context of a reflective equilibrium process, these general purposes can give rise to a variety of specific purposes. In the next sections, I develop a pragmatist approach to reflective equilibrium and discuss the implications of this approach for core elements of reflective equilibrium. These elements are: the initial convictions, facts, personal commitments and comprehensive views of life, coherence and additional methods for critical scrutiny. (shrink)

The familiar idea of a gap between theory and practice cannot be understood in terms of distinctions such as general-particular or abstract-concrete. A "gap" suggests a more fundamental difference. The underlying distinction is that between two incomplete and incompatible models of morality, a doctrine model and a practice model. Morality can be described in terms of interaction, a practice, and it can be described as a set of precepts, an ethical doctrine. This distinction may help us to understand various debates (...) and problems in ethics. It explains why there is so little progress in methodological discussions on reflective equilibrium. In a doctrine perspective, reflective equilibrium is a method to attain moral truth; in a practice perspective it is a process of continuous critical reflection. The distinction also explains conflicting views on moral expertise. In a practice perspective, moral philosophers are not moral experts, whereas in a doctrine perspective they are. (shrink)

In this article, I argue that law has two oftenneglected functions: the expressive and thecommunicative functions. They are especially importantfor legislation on moral issues, such as biomedicalethics and anti-discrimination law. The communicativefunction of law is a complex one: law may create anormative framework, a vocabulary to structurenormative discussions, as well as institutions andprocedures that promote further discussion. Theexpressive function of law is at stake when itexpresses which fundamental standards, which valuesare regarded as important. The recognition of thesefunctions is not only (...) important for descriptivepurposes; it is also fruitful for normative theory. (shrink)

In this article, we sketch a new approach to law and ethics. The traditional paradigm, exemplified in the debate on liberal moralism, becomes increasingly inadequate. Its basic assumptions are that there are clear moral norms of positive or critical morality, and that making statutory norms is an effective method to have citizens conform to those norms. However, for many ethical issues that are on the legislative agenda, e.g. with respect to bioethics and anti-discrimination law, the moral norms are controversial, vague (...) or still evolving. Moreover, law proves not to be a very effective instrument. Therefore, we need a new paradigm, both for descriptive and for normative analysis. This interactive paradigm, as a normative position, can be summarised in two theses. The process of legislation on ethical issues should be structured as a process of interaction between the legislature and society or relevant sectors of society, so that the development of new moral norms and the development of new legal norms may reinforce each other. And legislation on ethical issues should be designed in such a way that it is an effective form of communication which, moreover, facilitates an ongoing moral debate and an ongoing reflection on such issues, because this is the best method to ensure that the practice remains oriented to the ideals and values the law tries to realise. (shrink)

Lon Fuller, one of the great American jurists of this century, is often remembered only for his stand on the morality of law in the Fuller-Hart debate. Rediscovering Fuller considers the full range of Fuller's writings, from his early engagement with legal fictions and his critique of legal positivism to his later work on implicit law and the art of institutional design. Contributors from the fields of both civil law and common law argue that Fuller's insights are highly relevant to (...) contemporary concerns. The book contains essays by K. Winston, D. Dyzenhaus, P. Cliteur, F. Schauer ("Beyond the Fuller-Hart Debate"), P. Westerman, W. van der Burg, D. Luban ("Moralities of Law"), G. Postema, P. Teachout ("Implicit Law"), R. Macdonald, W. Witteveen, J. Allison, M. Hertogh, K. Soltan ("The Art of Institutional Design"), J. Allan, F. Mootz, J. Vining ("Law's Dialogue"), and a preface by Ph. Selznick. "At some point in the future, when we become more open to the moral relevance of social inquiry, more empirical in our study of philosophical issues, more capable of uniting moral and social theory, Lon Fuller's work will stand as a landmark. This volume will help show the way." —Ph. Selznick. (shrink)

In Plato's Laws, the Athenian Stranger claims that the gods will smile only on a city where the law This passage is the origin of the slogan an abbreviation of which forms our phrase From Plato and Aristotle, through John Adams and John Marshall, down to us, no idea has proven more central to Western political and legal culture. Yet the slogan turns on a very dubious metaphor. Laws do not rule, and the is actually a specific form of rule (...) by men (including, nowadays, a few women). These rulers are not slaves to anything. Furthermore, the construction of the sloganhas unfortunate connotations. It suggests that the personal qualities of the human rulers required to secure the rule of law are nothing more than forbearance and disinterestedness—a resolution to stay out of law's way.Footnotes* I have received helpful comments and criticisms from a number of readers, including the other contributors to this volume and participants in the Georgetown University Law Center faculty workshop. In addition, I should like to thank Brian Bix, Ellen Frankel Paul, Fred Schauer, and Wibren van der Burg for extensive written comments on an earlier draft of this essay. (shrink)

Foundations of Mind collects the essays which established Tyler Burge as a leading philosopher of mind.

In Perception: First Form of Mind, Tyler Burge develops an understanding of the most primitive type of representational mind: perception. Focusing on its form, function, and underlying capacities, as indicated in the sciences of perception, Burge provides an account of the representational content and formal representational structure of perceptual states, and develops a formal semantics for them. The account is elaborated by an explanation of how the representational form is embedded in an iconic format. These structures are then situated in (...) current theoretical accounts of the processing of perceptual representations, with an emphasis on the formation of perceptual categorizations. An exploration of the relationship between perception and other primitive capacities-conation, attention, memory, anticipation, affect, learning, and imagining-clarifies the distinction between perceiving, with its associated capacities, and thinking, with its associated capacities. Drawing on a broad range of historical and contemporary research, rather than relying on introspection or ordinary talk about perception, Perception: First Form of Mind is a scientifically rigorous and agenda-setting work in the philosophy of perception and the philosophy of science. (shrink)

Tyler Burge presents a collection of his seminal essays on Gottlob Frege (1848-1925), who has a strong claim to be seen as the founder of modern analytic philosophy, and whose work remains at the centre of philosophical debate today. Truth, Thought, Reason gathers some of Burge's most influential work from the last twenty-five years, and also features important new material, including a substantial introduction and postscripts to four of the ten papers. It will be an essential resource for any historian (...) of modern philosophy, and for anyone working on philosophy of language, epistemology, or philosophical logic. (shrink)

In Burge [Disjunctivism and perceptual psychology. Philosophical Topics 33: 1–78, 2005], I criticized several versions of disjunctivism. McDowell defends his version against my criticisms in McDowell [Tyler Burge on disjunctivism. Philosophical Explorations 13: 243–55, 2010]. He claims that my general characterization fails to apply to his view. I show that this claim fails because it overlooks two elements in my characterization. I elaborate and extend my criticisms of his disjunctivism. I criticize his positions on infallibility and indefeasibility, and reinforce my (...) earlier charges that his views on perception and epistemology are hyper-intellectualized. The central point in my rejection of his disjunctivism concerns his claim that the science of perceptual psychology is irrelevant to his disjunctivist classification of perceptual states. I hold that this claim shows lack of familiarity with the science and serious misunderstanding of it. The basic deficiency in McDowell's disjunctivism is that it, like other versions, is incompatible with well-established scientific knowledge. (shrink)

Cognition Through Understanding presents a selection of Tyler Burge's essays that use epistemology to illumine powers of mind. The essays focus on epistemic warrants that differ from those warrants commonly discussed in epistemology--those for ordinary empirical beliefs and for logical and mathematical beliefs. The essays center on four types of cognition warranted through understanding--self-knowledge, interlocution, reasoning, and reflection. Burge argues that by reflecting on warrants for these types of cognition, one better understands cognitive powers that are distinctive of persons, and (...) of human beings. The collection presents three previously unpublished independent essays, in addition to substantial, retrospective commentary. The retrospective commentary invites the reader to make connections that were not fully in mind when the essays were written. (shrink)

Foundations of Mind collects the essays which established Tyler Burge as a leading philosopher of mind. This second volume of his papers offers nineteen pieces published between 1975 and 2003, including the influential series that develops anti-individualism. Burge contributes three essay-length postscripts, a substantial new paper on consciousness, and an introduction which surveys his work in this area. The foundations that Burge reflects on are conditions in the individual or the wider world that determine the natures of mental kinds. The (...) conditions include causal, social, psychological conditions, and conditions of phenomenal consciousness. Some of these are basic conditions under which minds are possible. The book is essential reading for philosophers of mind, and should engage a wider public interested in basic philosophical issues. (shrink)

Tyler Burge presents an original study of the most primitive ways in which individuals represent the physical world. By reflecting on the science of perception and related psychological and biological sciences, he gives an account of constitutive conditions for perceiving the physical world, and thus aims to locate origins of representational mind.