bluuebunny/crossref_metadata_2025_split huggingface dataset:
Preamble Naturalism and Hume's Law
Authors: Prinz Jesse J. 
Published: October 2011

AbstractMorality 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

Abstract
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

AbstractThis 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

AbstractIn 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

AbstractCriminology 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

AbstractComparative 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

Abstract
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

AbstractFirst 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

AbstractThis 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

AbstractAn 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

Abstract
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

Abstract
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

Abstract
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

AbstractThe 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

Abstract
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

Abstract
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

AbstractAn 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

AbstractThis 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

AbstractThis 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

AbstractA 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

AbstractThis 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

AbstractThis 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

AbstractThis 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

AbstractThis 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.