bluuebunny/crossref_metadata_2025 huggingface dataset:
Chained to an Oar, 1792–1794
Authors: Lock F.P.
Published: October 2011

This chapter examines the career and activities of British politician Edmund Burke during the period from 1792 to 1794. During this period, Burke's relationship with the Whig Party did not improve. The Whig leaders still refused to break ties with Prime Minister Charles James Fox despite the recognition of a national emergency requiring a united front against the dangers from abroad. During this time, Burke also attempted to revive the process of impeachment but he failed.
An Old Oak, 1795–1796
Authors: Lock F.P.
Published: October 2011

This chapter examines the activities and career of British politician Edmund Burke. In his letters Burke has repeatedly descanted the theme of retirement and often compared himself to an oak. His complete withdrawal from politics was soon shattered in 1795 when Lord Auckland invited him to write a riposte on his pamphlet titled Some Remarks on the Apparent Circumstances of the War in the Fourth Week of October 1795. Burke declined and instead wrote his opinion on the same issue under the document titled Two Letters on the Prospect of a Regicide Peace.
The Habsburgs and Central Europe, 1683–1723
Authors: Evans R. J. W.
Published: October 2011

This chapter presents an essay on the successful attempts of Austria and Hungary to consolidate the Habsburg's possession from 1683 to 1723. It suggests that these attempts were made because the dynasty was still very much attached to imperial aspirations and associated schemes for Counter-Reformation. It argues that during this period and beyond, the Reich remained a mixed blessing for Habsburg government. This essay also analyses why the expansion efforts produced minimal results.
Culture and Authority in Central Europe, 1683–1806
Authors: Evans R. J. W.
Published: October 2011

This chapter presents an essay concerning the relation between Enlightenment culture and the evolving state in the territory of the Habsburg Monarchy. It highlights the cultural influence of the French and of the Prussian-Protestant model and analyses the relation of patriotism with transnational and trans-regional currents. This essay explores the social foundations of the changing cultural structures and the extent to which the state took over from the court the responsibility as purveyor and fashioner of culture.
Monarchy: From Reverence to Indifference
Authors: McKenna Mark
Published: October 2011

This chapter examines colonial Australia’s view of the British monarchy. It suggests that the Australian conception of the monarchy was the most potent symbol in conveying ideas of Australia’s inherent unity and fraternity with Britain and the Empire. The loyalty to the monarchy may be attributed to Australia’s distance from Britain, which tended to exaggerate affection to the King. In addition, the institution of monarchy in Australia was detached from the ancient hierarchy of aristocracy and privilege on which it rested in Britain.
Blame it on the WTO?
Authors: Joseph Sarah
Published: October 2011

The World Trade Organization (WTO) is often accused of, at best, not paying enough attention to human rights or, at worst, facilitating and perpetuating human rights abuses. This book weighs these criticisms and examines their validity, incorporating legal arguments as well as some economic and political science perspectives. After introducing the respective WTO and human rights regimes, and discussing their legal and normative relationship to each other, the book presents a detailed analysis of the main human rights concerns relating to the WTO. These include the alleged democratic deficit within the Organization and the impact of WTO rules on the right to health, labour rights, the right to food, and on questions of poverty and development. Given that some of the most important issues within the WTO concern its impact on poor people within developing States, the book asks whether rich States have an obligation to the people of poorer States to construct a fairer trading system that better facilitates the alleviation of poverty and development. Against this background, the book examines the current Doha round proposals as well as suggestions for reform of the WTO to make it more ‘human rights-friendly’.
Introduction
Authors: Joseph Sarah
Published: October 2011

This introductory chapter first sets out the purpose of the book, which is to explain the reasoning behind the main perceived human rights ‘problems’ with the WTO. These alleged shortcomings are explained and assessed as to their validity. The book also aims to help break down the mutual ignorance that exists in the relationship between trade and human rights. The chapter then discusses the WTO in the global economy and the types of human rights arguments against the WTO. An overview of the subsequent chapters is also presented.
The WTO and the Right to Food
Authors: Joseph Sarah
Published: October 2011

This chapter examines the effect of WTO rules on the enjoyment of the right to food. It first describes the human right to food, followed by an overview of current statistics regarding world hunger. The biased impact of current international trade rules on agricultural trade between developed and developing States, which was raised in Chapter 5, is analysed in fuller detail here. The chapter examines problems regarding free trade and agriculture, such as the detrimental effects of volatile markets, cartels, and specialization, and explores the alternative path of empowering small farmers. The impact of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) on the right to food is then analysed, before moving to the chapter's conclusions with recommendations for relevant WTO reforms. Much of the analysis focuses on whether WTO rules and free trade policies generally are producing or are likely to produce an environment in which States, particularly developing States, can discharge their obligations with regard to the right to food. Thus, the analysis largely concerns the instrumental relationship between WTO rules and free trade to human rights protection, rather than direct implementation of the right to food.
Extraterritorial Human Rights Duties
Authors: Joseph Sarah
Published: October 2011

This chapter discusses the issue of extraterritorial human rights obligations. It examines the extent to which States have duties to the people in other States. Such duties, if they exist, might signal that States have a duty under international human rights law not to enforce WTO rules which might harm the human rights of people in other States, or a duty to amend WTO rules to assist those in other countries, particularly the poor in developing countries.
Emotions: Non-moral and Moral
Authors: Prinz Jesse J.
Published: October 2011

There are reasons for thinking that moral ontology and moral judgements both involve emotions essentially. The nature of that involvement remains to be worked out, but there is an important hurdle to face before the project can even begin. Historically, philosophers who invoked emotions in their moral theories also provided detailed, independently motivated accounts of the emotions. All too often, we are told that emotions are central to morality without being told what the emotions really are. Emotionists cannot afford to be silent on this question, because some theories of emotion are difficult to reconcile with their approach to morality. This chapter defends a non-cognitive theory of emotions, which can be reconciled with emotionism. It then presents an overview of the moral emotions, and argues that different moral emotions play different functional roles. It also claims that the moral emotions are not basic. Rather, they are derived from non-moral emotions.
Against Objectivity
Authors: Prinz Jesse J.
Published: October 2011

The sensibility theory of morals is a subjectivist theory. To some, this is a sufficient reason for rejection. They insist that morality is objective. It is an objective fact that killing innocent people is wrong. Subjectivism loses sight of this. It makes morality too dependent on us. Subjectivists can respond to this objection in one of two ways. One strategy is to deny that objectivity and subjectivity are incompatible. Another is to deny that morality is objective. The former strategy has been more popular, but the latter is more viable. This chapter argues that objectivity and subjectivity are compatible, but that morality is not objective. It surveys leading ethical theories that have defended objectivism in one or another sense. Some of these objectivist theories are compatible with subjectivism, and others are not. This chapter contends that all of them have insurmountable flaws. It concludes by pointing out that a flight from objectivism need not be a flight from realism. There are moral facts; they are just purely subjective facts.
Moral Progress
Authors: Prinz Jesse J.
Published: October 2011

Friedrich Nietzsche is sometimes called a moral nihilist, and not without warrant. He wanted to undermine Christian morality, but he did not want to eliminate morality altogether. He wanted to replace existing values with better values. If every moral system is a cultural construction, and none has greater claim to absolute truth, what grounds do we have for saying any one system is better than any other? There are two kinds of moral nihilism. According to the first, all moral systems are empty: the claims they make are false. Error theories of morality are nihilistic in this sense. Morality is an illusion, but moral claims can be true. Our current values seem to be an improvement over the values of the past, and moral humility leads us to hope for continued improvement. If moral truth is shallow, then moral change is not a move forward, but a lateral repositioning in a space of equally acceptable options. This is a nihilism of directionless abundance.
Preamble Naturalism and Hume's Law
Authors: Prinz Jesse J.
Published: October 2011

Morality is a normative domain concerned with how the world ought to be, not how it is. The investigation of morality seems to require a methodology that differs from the methods used in the sciences. According to David Hume, there is no way to deduce a statement that has prescriptive force (a statement that expresses an unconditional obligation) from statements that are purely descriptive. No facts about how the world is configured entail that you ought to refrain from stealing or killing or blowing up buildings. Hume's Law is appealing because it makes morality seem special; moral truths are unlike the cool truths of science. But, on one reading, Hume's Law is a recipe for moral nihilism. By insulating moral truths from scientific methods, it may imply that morality is supernatural. If so, morality should go the way of spirits and fairies.
Disciplinarity and Drift
Authors: Ferrell Jeff
Published: October 2011

A half century or so after its publication, Gresham Sykes and David Matza's (2003 [1957]) article, ‘Techniques of Neutralization: A Theory of Delinquency’, has settled in as an accepted component of the criminological canon. This canonization is certainly merited; the article offered an important complement and corrective to criminological thinking at the time of its publication, and the innovative ‘theory of delinquency’ that it presented has been usefully employed by criminologists since. Yet canonization is not without its dangers. Divorced from the broader analysis that Sykes and Matza developed, the model of ‘techniques of neutralization’ has at times become a caricature, its themes recast as a simple checklist of deviant techniques. This chapter attempts to reclaim ‘techniques of neutralization’ from the criminological canon and, in so doing, suggests something of its unrealized potential for analysis and critique. This reclamation project proceeds on three fronts. First, it explores a delicate dialectic essential to Sykes and Matza's (2003: 233) analysis: that between the ‘dominant social order’ and those who would free themselves, if episodically, from it. Second, it turns to the model of ‘techniques of neutralization’ back on the discipline that has embraced it, utilizing Sykes and Matza's insights as a lens through which to view criminological norms and criminological deviance. Finally, the chapter explores the potential of drift as a form of knowledge, in the hope that some of criminology's participants — perhaps even the discipline itself — might be made to drift.
Origins of Criminology
Authors: Rafter Nicole
Published: October 2011

This chapter focuses on early attempts to explain crime scientifically, efforts that began in the late 18th century and continued very nearly untill the end of the 19th century, when the term ‘criminology’ finally came into use and the field became a discipline. The chapter is divided into two parts. The first part offers a synthetic overview of criminology's European and American origins. It does not try to answer the question, ‘What is criminology?’, but tries to suggest how some of the field's originators would have answered that question. The second part identifies three key themes in 19th-century criminology: the nature of moral insanity (which today would be called psychopathy); evolution and its implications for understanding lawbreaking; and crime as a social phenomenon. It is argued that a key challenge for criminology in the decade ahead is to develop a history — not a fixed account that will never be rewritten, because each generation has to reinterpret its past, but an in-depth account of its origins and of its work as an ongoing endeavour.
Criminology and Social Justice: Expanding the Intellectual Commitment
Authors: Richie Beth E.
Published: October 2011

In an attempt to broaden the discussion about the intellectual goals and methodological approaches that define the field of criminology, this chapter presents the case for including the notion of social justice — both theoretically and as a matter of praxis — for consideration in the future directions that the discipline of criminology might take. This is done as a way to challenge the epistemological tendency to bifurcate the understanding of what criminology is where, on the one hand, a community of scholars advocate that criminology should be understood principally as a theoretical discipline concerned primarily with generating ideas about the social context of the law and the philosophical meanings associated with social contracts, norm violations, and other matters related to rights, privileges, and obligations; while on the other hand, an esteemed cohort of criminologists focus on producing applied or policy- oriented research that explores solutions to the problems of crime. The goal of this chapter is neither to engage in this debate nor to expose the problems associated with the existence of fractions in the field; rather, it argues that scholars, policy-makers, interventionists, and activists, regardless of their orientation to the primary function of criminology, should prioritize the intellectual work in the discipline that contributes to the creation of a more just society.
Transcending the Boundaries of Criminology: The Example of Richard Ericson
Authors: Doyle Aaron , Chan Janet , Haggerty Kevin D.
Published: October 2011

Criminology lost a world leader with the death of Richard Ericson in 2007. Ericson was one of the most pre-eminent criminologists of the last forty years and one of the most cited. This chapter uses Ericson's work as a case study to demonstrate the potential for criminology to reach widely in its contributions to knowledge, transcending conventional boundaries. It responds to the editors' question ‘How should criminology be done?’ by examining how Ericson's work pushed the boundaries of conventional criminology outward into new substantive areas of research, towards interdisciplinarity, and towards making broader theoretical contributions that transcend the particular empirical concern with crime and criminal justice.
Why Compare Criminal Justice?
Authors: Nelken David
Published: October 2011

Comparative studies of criminal justice seek to describe, explain, interpret, and evaluate differences in the way offensive conduct is defined and sanctioned. We may, for example, be interested in differences in what is and is not forbidden, in the justifications of punishment or regulation, in measures used to deal with deviant conduct, in who is involved in the process (e.g,, lay people or private business), or in how crime and criminal justice are reported by the media. It is easy enough to find striking examples of contrasts in criminal justice. The United States is still sending people to their death in the electric chair but, in 2008, a fairground owner in Italy was convicted of a crime against public decency for exhibiting a pretend electric chair. But what is less clear is how these could contribute to make up a coherent subject-matter. What is the comparative analysis of criminal justice (good) for? This chapter first describes some of the theoretical and policy goals of this subject and then goes on to discuss how far this sort of work can overcome the risks of ethnocentrism and relativism.
14 ‘Special Agreements’ between Conflicting Parties in the Case-law of the ICTY
Authors: Vierucci Luisa
Published: October 2011

The conclusion of agreements between the parties to a conflict (special agreements) has assumed an important quantitative dimension since the end of the Cold War. The content of these agreements makes it likely that international criminal tribunals employ these documents either in order to establish their jurisdiction or for evidentiary purposes. This chapter examines the way in which the ICTY has employed the special agreements in its case law and highlights the legal issues that this case law gives rise to, mainly with respect to the determination of the legal nature of the agreements. It then discusses the way in which the ICC may employ the special agreements in light of the lessons drawn from the ICTY experience.
Scepticism's Self-Refutation
Authors: Finnis John
Published: October 2011

First principles, whether theoretical or practical, cannot be demonstrated, but can be defended successfully against objections by arguments of the broad kind known to Plato and Aristotle as ‘dialectical’. One such refutation of objections to a first practical principle is the ‘retorsive’ argument demonstrating the self-refutation of any serious assertion that knowledge is not an intrinsic good. There are hints of such an argument in Augustine and a few other writers, but no attempt to set the argument out with explicitness and some precision. This chapter, which first appeared in 1977, seeks to do that, building on some logical exploration of various kinds of self-refutation or performative inconsistency by J. L. Mackie, and emphasizing the importance of an exact understanding of assertion. Along the way, the chapter attends to some self-refutatory argumentation concerning legal sovereignty. The whole challenges Hart's exclusion of all goods save survival from legal theory.
Prudence about Ends
Authors: Finnis John
Published: October 2011

This chapter resolves an apparent contradiction in Aquinas's discussions of the intellectual and moral virtue of prudentia (practical reasonableness), a textual puzzle articulated by his great 16th-century commentator Cajetan and taken up in 1990 by Terence Irwin. But also, especially in sections III and V, the chapter directly considers the truth about practical reason, human ends (goods), and virtue (right and wrong judgments, choices, actions and character). All ends except the very most ultimate are also means; no end, even the most ultimate, can be actually intended without being understood in its relation to means; and even the most ultimate end involves a complex of constituent intelligible goods. So Aristotle's thesis, adopted by Aquinas, that phronêsis (prudentia) concerns the means (rather than the end) is consistent with Aquinas's thesis that prudential directs the (other) moral virtues not only in the choosing of means but also the settling of end(s).
‘Natural Law’
Authors: Finnis John
Published: October 2011

An essay from 1986, this chapter provides a summary for American jurists, modified and supplemented in 1996 for a French dictionary of philosophy. It investigates the reasons, philosophical and historical, for labelling some ethical, political, and legal theories ‘natural law’.It shows that a primary concern of such theories is the critique both of ethical dogmatism (whether conventional or religious) and of ethical scepticism, and — emphasizing that ought cannot be inferred from is, attends especially to Max Weber's ‘fact’ versus ‘value’ arguments for scepticism. It then distinguishes natural law theories from other kinds of ethical cognitivism, whether Kantian, intuitionist, or aggregative (e.g., utilitarian). Sections are devoted to criticism of Michel Villey's theses contrasting ius and lex (right and law), and ‘objective’ and ‘subjective’ right(s); to explaining the differing kinds of derivation of positive from natural law; and showing the possibility of grounding truly inviolable human rights.
Purposes, Public Acts, and Personification
Authors: Finnis John
Published: October 2011

Hart's inaugural lecture removed personification — corporate personality — from legal theory's agenda until Dworkin's Law's Empire, making reference to Thomas Nagel's discussion of public life, asserted the need for a deep personification of the state. But neither writer explained why, when we ascribe official responsibilities etc. to officials, we do so via ascribing responsibilities etc. to the group of which they are officials. This chapter critically analyses Nagel's normative theory of public responsibilities, and proceeds via an examination of the structure of nuclear deterrence to consider why any judgment about the morality of an individual's participation in that system must first judge the morality of the social act of establishing and maintaining the system and of, if occasion arises, deploying it. The key is understanding why, and to what extent, bluff is impossible in systems of this kind.
Human Acts
Authors: Finnis John
Published: October 2011

This chapter offers a broad overview of human action as the carrying out of free choices, which last in the acting person's character beyond the time of performance, until (if ever) repented of. Recent theological theories (e.g., Timothy O'Connell's) which treat even freely chosen actions as only superficial manifestations of the person are criticized. The intransitive effect of choice and action is explained. The specification of acts by their objects is defended, and the bases for the traditional theological maxim that evil may not be done for the sake of good are indicated and vindicated against the Jesuits Richard McCormick and Bruno Schüller.
Conditional and Preparatory Intentions
Authors: Finnis John
Published: October 2011

This chapter provides an examination of English judicial doctrine, and then of existing philosophical accounts in English, in relation to conditional intention. The basic ambiguity of the term is resolved here, and the complexity of the relevant realities teased out. Alan Donagan's critique of Aquinas on imperium is refuted, as is Hobbes's account of deliberation. Preparatory intentions — to get into a position to form and specific kind of intention later — are identified. The moral significance of treating an option as morally acceptable (a kind of consensus in Aquinas's sense) is shown and applied to British doctrines and systems of nuclear deterrence.
Human Rights and Their Enforcement
Authors: Finnis John
Published: October 2011

The Maccabaean Lecture in Jurisprudence for 1985, this chapter is in part a response to Ronald Dworkin's Maccabaean Lecture for 1977, and to Patrick Devlin's famous Maccabaean Lecture for 1959. It critiques Dworkin's claims about equality of concern and respect, about the role of utilitarianism in political theory and practice, and above all about enforcing ‘majority opinion’ as such. It also critiques Devlin's claim that it is right to enforce a community's morality just because it is strongly adhered to. The chapter's main theoretical move is its discussion of the failure by both Dworkin and Devlin to consider moral opinions as they are understood by those who hold them: a neglect of ‘transparency’ and of the logical problems of ‘collectivity’. Other sections discuss the roles of legislature and judiciary, the history of the European Convention on Human Rights and its judicial interpretation, and the limits of specifically legal learning. Endnotes critique some very recent cases.
Rawls's A Theory of Justice
Authors: Finnis John
Published: October 2011

This chapter is a summary and review of Rawls's book. It offers to identify the fundamental logical flaw at the book's heart: the assumption that if a principle would be rejected by the unbiased persons in the postulated Original Position, it therefore would and should be rejected by reasonable people unconstrained by the systematic ignorance imposed by Rawls on persons in the Original Position to preserve them from bias. It also points to the risk aversion postulated by Rawls.
Hart's Philosophy of Punishment
Authors: Finnis John
Published: October 2011

This chapter reviews Hart's Essay on Punishment and Responsibility (1968) and underlines Hart's resistance to scepticism and reductivism in relation to the conceptions of human nature and of justice at stake in debates about punishment's justification. His critiques of John Austin's theory of action and Barbara Wootton's indifference to responsibility in relation to crime are exemplary. But his discussion of Plato overlooks Plato's fundamental concern for retributive justice, and Hart gives inadequate reasons for denying that retribution can be, not simply a limiting principle (as he proposes), but the general justifying aim of punishment.
Economics, Justice, and the Value of Life
Authors: Finnis John
Published: October 2011

An Economic Analysis of Law, as expounded by Posner, cannot provide moral criteria. Though economics usefully identifies side effects, economic reasoning is defeated by the incommensurables involved in overall consequences of choices. The confusions involved in Dworkin's account of the value of human life, and in the minority judgments in the US Supreme Court in Cruzan's case (1990), and the dualism in these accounts is critiqued. Undignified conditions are to be distinguished from lack of human dignity. Death can reasonably be accepted as a side effect. The meaning of solidarity with and fidelity to the very dependent elderly is explored.
Law, Morality, and ‘Sexual Orientation’
Authors: Finnis John
Published: October 2011

This chapter is the last and shortest version of a paper that emerged out of testimony and counter-testimony in a court in Colorado in 1995. It omits parts that in the earlier published versions surveyed the false claims made by a learned witness. The chapter begins with a statement of the legal position — standard in 1995/7 throughout Europe — about homosexual conduct (decriminalized but legally discouraged), a position subsequently swept away. It then argues that that position had profound support in the philosophical judgments of Plato, Aristotle, and Musonius Rufus, judgments fully justifiable in view of the basic human good of marriage and the character of the sex act (marital act) that enables spouses to actualize, express, and experience their marriage. Counter-arguments by Koppelman, Macedo, and others are critiqued.
Philosophy of Law
Authors: Finnis John
Published: October 2011

This volume collects twenty-two chapters, grouped in four parts. These include two recent appreciations and critiques of Hart's legal and political theories; a thorough appreciation and critique of Dworkin's Law's Empire, and of Raz's theory of authority and coordination; and critiques of John Gardner on legal positivism and of Jules Coleman and Brian Leiter on positivism and naturalism. Aquinas is celebrated as founder of a sound account of law's positivity. Weber's accounts of the fact-value distinction, and of legitimation, Unger's theory of indeterminacy in law, Posner's law and economics and mishandling of intention, Kelsen's (and the courts') struggles with revolution, Hohfeld's misinterpreters on rights, Blackstone's architecture of the law, and John Paul II on legitimately enacting unjust laws are all subjects for detailed studies. One very long chapter and one short one survey the sweep of legal theory's history and main elements.
Describing Law Normatively
Authors: Finnis John
Published: October 2011

A fundamental reconsideration of the project of a general theory of law, this chapter argues that no general account can be given of what law in fact is without explicit attention to why it has the features or elements it has. The best way in to an explanatory general description of law can start by attending to primal situations such as playground bullying, and to what is needed in such a situation. The primary reality of the law is as a reason for action, a claim on my (its subject's) decision and action. Such legal claims (obligations) fulfil the need for positive law best when they are moral obligations. Brian Leiter's sound objections to theorizing by ‘conceptual analysis’ do not support his own ‘naturalism’. Hart's best work on law was not conceptual. Coleman's criteria for evaluating theories of law are radically unsound. Gardner's new account of legal positivism rightly identifies it as at best a minor fragment of legal theory, and undermines its claim to be any part at all.
Positivism and ‘Authority’
Authors: Finnis John
Published: October 2011

This chapter examines some main features of Hart's methodology. It proceeds to a consideration of ‘conceptual analysis’, by showing how it is possible to devise (as Rolf Sartorius did in the conference paper under discussion) coherent concepts of political or legal authority which nonetheless are unfitted for use in political or legal theory. The method of classical social theory deploys the internal point of view more appropriately, as is exemplified in ELizabeth Anscombe's need-based discussion of the source of the authority of the state.
A Grand Tour of Legal Theory
Authors: Finnis John
Published: October 2011

This chapter is a survey of what ‘natural law theory’ in its classical forms did or would say about the twenty-eight topics intended to be taken up in Coleman and Shapiro's Oxford Handbook of Jurisprudence and Philosophy of Law. It begins by differentiating the classical from the ‘modern’ (from Grotius on) theories of natural law, and from ‘exclusive’ and ‘inclusive’ legal positivism, surveys the methodology of legal philosophy, the relationship between legal and political philosophy, and then a series of substantive topics: authority; rights; institutionality; reasons, ‘formalism’; law and obligation; adjudication; law and epistemology; law and language; law and objectivity; law and rational choice; law and sexuality; tort law; contract law; criminal law; property law; international law; the common law; Zipursky's ‘recourse’ theory of private wrongs; constitutional and statutory interpretation; and responsibility.
Legal Philosophy: Roots and Recent Themes
Authors: Finnis John
Published: October 2011

This chapter is a third version — this time for a Chinese readership — of a brief (sixteen-page) encyclopedia-style overview of the history of Western legal philosophy from the pre-Socratics to Hart, Dworkin, Posner, Unger, and others, focusing on showing the bearing of that history on contemporary problems in the field. Causation, legal personality, and legal interpretation are selected for illustration, but the survey concentrates on the wider issues of method that determine the content and explanatory power of rival approaches. One conclusion along the way is that Aquinas's conception of law's positivity is superior to Hart's and the various legal ‘positivisms’ are a distraction.
The Truth in Legal Positivism
Authors: Finnis John
Published: October 2011

This chapter begins with a detailed history of the emergence of the term ‘positive’, in relation to law, in the 12th and 13th centuries, most richly and subtly in Aquinas, whose texts are described and analysed in detail. A concluding purely theoretical section sets out, illustratively, the basic reasons why the alleged debate between ‘natural law theory’ and ‘legal positivism’ is misplaced and futile, through inattention to ambiguities which, once noticed, enable it to simply dissolve. Though human law is largely artefact and artifice, not a conclusion from moral premises, neither its positing nor the recognition of its positivity can be understood without reference to the moral principles that ground and confirm its authority or challenge its pretention.
Hart as a Political Philosopher
Authors: Finnis John
Published: October 2011

After a brief appreciation of Hart's life and virtues, this chapter contrasts his legal-theoretical work with conceptions of method and political philosophy dominant between 1945 and 1960. Hart's attention to law's functions, decisive for The Concept of Law, transcends the merely linguistic or conceptual. Hart failed to follow through resolutely, but his work like Rawls's rejoined the enterprise launched by Plato and Aristotle and derided by Hobbes. The chapter's second half is a root and branch critique of Hart's normative political philosophy, especially Law, Liberty and Morality, which failed to see the irrelevance of Devlin's focus on positive morality, and thus cut itself off from the main political philosophical tradition and from reason. A special failing was Hart's claim that sex ethics cannot be rational, and his neglect of the question whether and how political culture and community have preconditions bearing on procreation and family.
Critical Legal Studies
Authors: Finnis John
Published: October 2011

This chapter presents a critical examination of Unger's seminal article and book The Critical Legal Studies Movement, and of its account of legal thought, tested against its account of certain ‘exemplary’ difficulties in the Anglo-American law of contract. Unger's account fundamentally misconstrues the ways of legal thought and hides its misunderstanding behind equivocations on ‘(in)determinate’ and ‘(un)justified’ and neglect of under-determination. Its triadic schemas are too complex and too simple to capture the problems with which any law of contract must grapple. Underlying the Movement is a poverty-stricken conception of the forms of human good and a scepticism resting on unsound arguments. The result is a threat to the vulnerable in society.
‘Legal Liberalism’ orLiber et Legalis?
Authors: Finnis John
Published: October 2011

This chapter presents a brief unpublished essay on David Price's critique of Critical Legal Studies (CLS) and defence of ‘legal liberalism’. The latter category, much promoted by Unger and others in the Movement, is not a safe description of the rights and rule of law that Price wishes to defend against CLS antipathy and subversion. Indeed, ‘liberalism’ is not a term fir for use in doing legal or political theory, as the example of Aristotle and Aquinas suggests. Nor should we concede as much as Price does to CLS claims about contradictions in the law.
Individuals, Communities, and Postmodernism: Some Notes
Authors: Finnis John
Published: October 2011

This chapter offers a brief discussion of a draft paper by Daniel Ortiz, focusing on whether individuals or communities should be the unit of political and social analysis. It is hazardous to discuss this in terms of individual ‘sovereignty’. Better analyses of the relation between individual and group are available, and talk of sovereignty systematically obscures the distinction between ‘is’ and ‘ought’.Nor is the category of ‘contradiction’ very appropriate for considering, even clearly normatively, that relation. Some observations are offered about Duncan Kennedy, Dworkin, Richard Rorty, and Whitman's pantheism and apparent optimism about reason and spirit.
Allocating Risks and Suffering: Some Hidden Traps
Authors: Finnis John
Published: October 2011

This chapter begins by examining some basics in Adam Smith's conception of economics, and then tells the story of the evolution of the law about mantraps in the 1820s in England and later in the United States. This sets the scene for an examination of Posner's engagement with the same body of tort and criminal law, and with the concept of intention in the law, generally. The weaknesses at the heart of an Economic Analysis of Law are identified, and its unfitness for adjudication. Political community has no goal analogous to a one-project firm which can account completely to its shareholder's at project's end. The distinction between the intended and its foreseen or foreseeable side effects is appropriately relevant in law.
Just Votes for Unjust Laws
Authors: Finnis John
Published: October 2011

This chapter's legal-philosophical significance lies in its close attention to the way in which the form and text of enactments must be distinguished from the enactments' legal meaning and juridical effect, that is, from the propositions of law which those enactments, properly interpreted, make legally valid and/or true. Given this distinction, it is possible and necessary to conclude that in some contexts a statute declaring or textually implying that some instances of a kind of serious injustice (of a sort that certainly ought to be prohibited by law) is legally permitted (but other instances are prohibited) is nonetheless not a statute that permits injustice. The crucial question whether the statute reduces the state's protection of persons from the relevant injustice cannot be answered by looking at the text of the statute. The injustice considered is abortion, but alternatives may be substituted for the sake of the argument, e.g., torture. Similarly, the central line of argument can be detached from its context here (the encyclical Evangelium Vitae (1995)).
Historical Consciousness and Theological Foundations
Authors: Finnis John
Published: October 2011

The 1992 Gilson Lecture to the Mediaeval Studies Institute in Toronto, this chapter undertakes a substantial and wide-ranging critique of the theory of ‘historical’ (as opposed to ‘classical’) consciousness elaborated in the later works of Bernard Lonergan and adopted by many theologians since the 1970s. The origins of the phrase, and its self-refuting deployment by Lonergan's predecessor in use of it are traced, and the ambiguities and inconsistencies in Lonergan's employment of it are shown in detail. Weaknesses in the Thomist tradition in relation to history are pointed out, and its neglect (and Lonergan's) of rationality norms is explored in relation to Hume's argument against miracles. The relevance of these problems to moral theology is the chapter's last major theme. Karl Rahner's theory of ‘changing human nature’ is challenged, and the form of coherent moral development traced with reference to marriage, usury, and religious freedom. The fall of Jerusalem and the dating of the Gospels is discussed.
Three and One
Authors: Finnis John
Published: October 2011

This chapter offers an unpublished Trinity Sunday 1988 college Evensong sermon taking off from the Petrine sermon in the Evensong readings for that day, about ‘the revelation of Jesus Christ’ and ‘the Holy Spirit sent from heaven’. The chapter's core is on the nine Trinitarian affirmations in which Newman sums up the so-called Athanasian Creed, which he regarded as Christianity's most simple, sublime, and devotional formulary. The chapter concludes with a reflection on the nature and practical significance of doctrinal propositions such as these.
Conscience in the Letter to the Duke of Norfolk
Authors: Finnis John
Published: October 2011

This chapter gives a close and detailed study of Newman's understanding of conscience and natural and divine law, as manifested in his 1875 response to Gladstone's 1874 critique of the doctrine of papal infallibility defined in 1870, which had charged Catholics with divided allegiance and mental and moral slavery. The chapter shows that Newman's response to that charge is unsuccessful, partly because of legalistic elements in his conception of morality. Newman's influence on the Second Vatican Council's 1965 teaching on conscience has been exaggerated, and his arguments against the charge of mental and moral slavery, though correct in conclusion, are unsound, partly because he failed to take consistent account of the darkening of consciences by sinful habits and conventions, or of the possibility of precise ecclesial teachings on exceptionless moral norms. An endnote responds to a Jesuit critique of the essay.
Christianity and World Order
Authors: Finnis John
Published: October 2011

Reflections of E. R. Norman's Reith Lectures, Christianity and the World Order, this chapter is a further reflection on the way human action is significant in the building up of the heavenly kingdom. It identifies a number of home truths in Norman's appraisal of Christian church people's attitudes as unspiritual, politicized, and detached from truths of Christian faith; and a number of half-truths in his grasp of Christian teaching, especially about human nature, human goods and natural law, Catholic social teaching, divine commandments, and faith and works in this world and in eternity.
6 Women Abolitionists and the Dissenting Tradition
Authors: Roy Jeffrey Julie
Published: October 2011

While this chapter acknowledges the influence of evangelical religion on female abolitionism, it argues that anti-slavery women also exploited traditions of dissent that stretched back to Puritanism and the Reformation itself. These traditions helped women to make sense of the opposition they encountered, energized them in difficult times, and provided them with a powerful way to critique the failure of American churches to embrace abolitionism. Yet those same traditions complicated their work, especially the lucrative fairs that they sponsored to support their cause.
8 Writing Against Slavery: Harriet Beecher Stowe
Authors: Newman Judie
Published: October 2011

This chapter discusses the strategies which Harriet Beecher Stowe mobilized from her religious background in order to further the abolitionist cause. In Uncle Tom's Cabin (1852) revivalist and camp-meeting religion informs character and action. Dred (1856) focuses on the struggles between self-serving American pro-slavery clergy, heroic abolitionist ministers, and prophetic African-American Christianity, dramatized in the context of the role reversals of a camp-meeting. The Christian Slave (1855), a dramatized reading or ‘closet drama’, written for Mary Webb, one of the first African American dramatic performers, developed the role reversal topos of abolitionist closet drama (as did Herman Melville's Benito Cereno) for abolitionist purposes.
Supplementary Means of Interpretation
Authors: Sbolci Luigi
Published: October 2011

The Vienna Convention on the Law of Treaties of 1969 established a distinct hierarchy between the general rule of interpretation and supplementary means. Article 32 of the Convention subordinates the use of supplementary means to various assumptions connected with the outcome of the interpretation made on the basis of the general rule contained in Article 31. The list of the supplementary means laid down in Article 32 is not exhaustive and the Vienna Convention says nothing about the concept of preparatory works, of circumstances surrounding the conclusion of the treaty, and about the concept of other supplementary means of interpretation. These and other critical observations can be resolved by reference to indications from the comments of the International Law Commission and from international case law. The rule established in Article 32 can be considered to correspond to the international custom. The use of supplementary means of interpretation is important when the application of the general rule leaves the meaning ambiguous, obscure, or absurd. Recent international case law appears to illustrate the reasons that can lead the interpreter to find, in the supplementary means, a confirmation of the meaning emerging from the application of the general rule expressed in Article 31.
The Law of Treaties and the UN Security Council: Some Reflections
Authors: Wood Michael
Published: October 2011

The UN Security Council impacts on the law of treaties in many different ways — ways that are both foreseen and unforeseen in the Vienna Convention on the Law of Treaties. This has led to harsh criticism by writers, less so by states. There is an important distinction to be made between obligations that are binding on the parties to a treaty by virtue of their participation therein, and obligations that are binding on states for some reason outside the treaty, for example because they are made so by mandatory Council action. Article 103 of the UN Charter has assumed increasing importance and should not be interpreted narrowly. The Council has shown self-restraint in its approach to treaties, interfering only to the extent necessary for the maintenance of international peace and security.
Freedom, Security, and Justice in the European Court of Justice: The Ambiguous Nature of Judicial Review
Authors: Douglas-Scott Sionaidh
Published: October 2011

It has become almost commonplace to state that, in the context of the EU's Area of Freedom Security and Justice (AFSJ), freedom and justice are being sacrificed to the needs of security. This means, among other things, that important human rights are sacrificed. The EU has been slow to adopt measures on rights, and too quick to adopt more coercive and potentially rights-violating measures such as the European Arrest Warrant, or the extremely broad EU definition of terrorism. The performance of the European Court of Justice has been disappointing and there has been little input from the European Parliament. This chapter discusses two specific cases relating to US access to Passenger Name Records and terrorist blacklisting (Kadi), which are more to do with the autonomy of EC law than with human rights protection. It examines the current situation and argues that judicial review by the European Court of Justice has not improved the situation.
Cognitive Biology
Authors: Auletta Gennaro
Published: October 2011

The book provides a new conceptual scaffold for further research in biology and cognition by introducing the new field of Cognitive Biology. It is a systems biology approach showing that further progress in this field will depend on a deep recognition of developmental processes, as well as on the consideration of the developed organism as an agent able to modify and control its surrounding environment. The role of cognition, the means through which the organism is able to cope with its environment, cannot be underestimated. In particular, it is shown that this activity is grounded on a theory of information based on Bayesian probabilities. The organism is considered as a cybernetic system able to integrate a processor as a source of variety (the genetic system), a regulator of its own homeostasis (the metabolic system), and a selecting system separating the self from the non-self (the membrane in unicellular organisms).
1 Quantum Mechanics as a General Framework
Authors: Auletta Gennaro
Published: October 2011

Quantum mechanics is the most basic scientific discipline that we know and in particular can be very insightful for any other field suggesting the necessity to integrate a local and a global perspective.
2 Quantum and Classical Information and Entropy
Authors: Auletta Gennaro
Published: October 2011

Here it is shown that quantum systems can be understood as information processors. Information and entropy are related quantities but also different, since the first is formal whilst the second is dynamical. Both quantum and classical information acquisition are a three-step process that needs a processor, a regulator, and a decider.