scholarly journals The Metaphysics of Mind and the Practical Science of the Law

2008 ◽  
Vol 26 (1) ◽  
pp. 161-166 ◽  
Author(s):  
Sarah A. Seo ◽  
John Fabian Witt
Keyword(s):  
Moral Responsibility ◽  
Free Will ◽  
Common Sense ◽  
Moral Agent ◽  
Practical Science ◽  
Early American ◽  
American Law ◽  
The Common ◽  
The Law ◽  
Metaphysics Of Mind

In “Mind of a Moral Agent,” Susanna Blumenthal elegantly limns the rise and partial fall of the common sense theory of moral responsibility in American law. As Blumenthal convincingly describes it, the problem for early American jurists was nothing less than to solve the paradox of determinism and free will. How can the law declare someone morally culpable unless we are free to choose our own ends?

scholarly journals The Common Law of War

2017 ◽  
Author(s):  
Jens David Ohlin
Keyword(s):  
Natural Law ◽  
Common Law ◽  
Armed Conflicts ◽  
Law Of War ◽  
Early American ◽  
American Law ◽  
The Common ◽  
The Law ◽  
Military Commissions ◽  
The Government

In recent litigation before U.S. federal courts, the government has argued that military commissions have jurisdiction to prosecute offenses against the "common law of war," which the government defines as a body of domestic offenses, such as inchoate conspiracy, that violate the American law of war. This Article challenges that definition by arguing that stray references to the term "common law of war"in historical materials meant something completely different. By examining the Lieber Code, the writings of early natural law theorists, and early American judicial decisions, this Article concludes that the "common law of war" referred to a branch of the law of nations that applied during internal armed conflicts, such as civil wars with non-state actors. This body of law was called "common," not because it was extended or elaborated by the common law method of judge-applied law, but rather because it was "common" to all mankind by virtue of natural law, and thus even applied to internal actors, such as rebel forces, who were not otherwise bound by international law as formal states were. By recapturing this lost definition of the common law of war, this Article casts some doubt on the U.S. government's position that military commissions have jurisdiction not only over international offenses, but also domestic violations of the law of war.Published: Jens David Ohlin, "The Common Law of War," 58 William & Mary Law Review (2016)

Fundamental Conceptions of International Law in the Jurisprudence of the Permanent Court of International Justice

1936 ◽  
Vol 30 (3) ◽  
pp. 414-438 ◽  
Author(s):  
H. Arthur Steiner
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Current Practice ◽  
Common Law ◽  
International Justice ◽  
Large Measure ◽  
American Law ◽  
The Common ◽  
The Law ◽  
Anglo American

Even in the most highly formalized systems of jurisprudence the rules and practices of the law cannot be entirely separated from the fundamental conceptions of law underlying them. The legal systems of France, The Netherlands and Germany have not been formalized to so great an extent that there is neither occasion nor opportunity for the application of the law to be conditioned by concepts derived from juridical theory. Duguit and Geny, Krabbe, and Kohler and Stammler, in their various works, have made this quite clear. In Anglo-American law the fictions so abundantly found are often no more than concrete formulations of abstract fundamental concepts which judges have thought to be valid and consistent with policy and which they could not conveniently introduce into the law in any other way. That fundamental conceptions of the law may affect its development more than their logical consistency warrants has been amply illustrated in the common law, equity, and American constitutional law. What is true of well-developed systems of jurisprudence is no less true of international law. Fundamental conceptions have probably had a greater influence here, since theologic and scholastic philosophies explain many of the rules of modern practice, and the rules of current practice owe their very existence, in large measure, to the reconciliaation of the philosophical concepts of the State, sovereignty and independence with the conception of a community of nations and a rule of law.

scholarly journals Scottish Common Sense and Nineteenth-Century American Law: A Critical Appraisal

2008 ◽  
Vol 26 (1) ◽  
pp. 167-175 ◽  
Author(s):  
John Mikhail
Keyword(s):  
Nineteenth Century ◽  
Common Sense ◽  
Critical Appraisal ◽  
Moral Agent ◽  
Moral Sense ◽  
American Law ◽  
Common Sense Philosophy ◽  
The Mind

One overriding concern I have with Susanna Blumenthal's insightful and stimulating article, “The Mind of a Moral Agent: Scottish Common Sense and the Problem of Responsibility in Nineteenth-Century American Law,” is whether there is anything sufficiently distinctive about Scottish Common Sense philosophy that justifies the role Blumenthal ascribes to it. In a representative passage, she writes:Common Sense philosophy left would-be “moral managers” with a puzzle. If rational and moral faculties were innate and universal, what explained the great conflicts among men concerning matters of belief, manners, and morals … leading some to commit acts that were … patently irrational or downright evil? And to the extent that therewasa common sense about the dictates of reason, propriety, and moral sense, why did some individuals act in defiance of them?

scholarly journals Natural Compatibilism, Indeterminism, and Intrusive Metaphysics

2020 ◽  
Author(s):  
Thomas Nadelhoffer ◽  
David Rose ◽  
Wesley Buckwalter ◽  
Shaun Nichols
Keyword(s):  
Moral Responsibility ◽  
Free Will ◽  
Common Sense ◽  
Experimental Philosophy ◽  
Reliable Evidence ◽  
Freedom And Responsibility

The claim that common sense regards free will and moral responsibility as compatible with determinism has played a central role in both analytic and experimental philosophy. In this paper, we show that evidence in favor of this “natural compatibilism” is undermined by the role that indeterministic metaphysical views play in how people construe deterministic scenarios. To demonstrate this, we re-examine two classic studies that have been used to support natural compatibilism. We find that although people give apparently compatibilist responses, this is largely explained by the fact that people import an indeterministic metaphysics into deterministic scenarios when making judgments about freedom and responsibility. We conclude that judgments based on these scenarios are not reliable evidence for natural compatibilism.

scholarly journals Natural Compatibilism, Indeterminism, and Intrusive Metaphysics

2019 ◽  
Author(s):  
Thomas Nadelhoffer ◽  
David Rose ◽  
Wesley Buckwalter ◽  
Shaun Nichols
Keyword(s):  
Moral Responsibility ◽  
Free Will ◽  
Common Sense ◽  
Experimental Philosophy ◽  
Reliable Evidence ◽  
Freedom And Responsibility

The claim that common sense regards free will and moral responsibility as compatible with determinism has played a central role in both analytic and experimental philosophy. In this paper, we show that evidence in favor of this “natural compatibilism” is undermined by the role that indeterministic metaphysical views play in how people construe deterministic scenarios. To demonstrate this, we re-examine two classic studies that have been used to support natural compatibilism. We find that although people give apparently compatibilist responses, this is largely explained by the fact that people import an indeterministic metaphysics into deterministic scenarios when making judgments about freedom and responsibility. We conclude that judgments based on these scenarios are not reliable evidence for natural compatibilism.

Libet and the case for free will scepticism1

2011 ◽  
Author(s):  
TIM BAYNE
Keyword(s):  
Free Will ◽  
Current Literature ◽  
Common Sense ◽  
Neural Basis ◽  
Brain Science ◽  
The Common

This chapter examines what is arguably the most influential rebutting objection in the current literature, an objection that appeals to Benjamin Libet's studies concerning the neural basis of agency. Although Libet himself stopped short of endorsing free will scepticism on the basis of his results, other theorists have not been so cautious, and his work is often said to show that we lack free will. It is argued that Libet's findings show no such thing. However, Libet's experiments do raise a number of interesting and important questions for accounts of free will. In particular, Libet's experiments raise challenging questions about the analysis of the concept of free will. In order to determine whether brain science supports free will scepticism we need not only to understand the relevant brain science, we also need to understand just what the common-sense or folk notion of free will commits us to. The latter requirement may be as difficult to meet as the former one is.

Sir William Hamilton

2020 ◽  
pp. 9-35
Author(s):  
W. J. Mander
Keyword(s):  
Nineteenth Century ◽  
Free Will ◽  
Special Reference ◽  
Common Sense ◽  
Critical Philosophy ◽  
Space And Time ◽  
The Subject ◽  
The Law

William Hamilton epitomizes very clearly the challenge that contemporary philosophers face in studying their nineteenth-century predecessors. There can be few thinkers who have been the subject of such a massive reversal of reputational fortune as Hamilton, from being heralded in his day as a philosophical genius to being ignored by subsequent generations as a pompous blunderer. The chapter examines the central principles of Hamilton’s metaphysics, with special reference to his assertion of the relativity of knowledge and the law of the conditioned. The chapter considers how his metaphysical system relates both to that of Kant’s Critical philosophy and the Scottish common sense school, and examines its application to the specific concepts of substance and adjective, space and time, causality, free will and God.

Gesetzliche und außergesetzliche Einflüsse auf das Verhalten von Richtern / Legal and Extra-Legal Impacts on the Behavior of Judges

1972 ◽  
Vol 1 (3) ◽  
Author(s):  
Karl-Dieter Opp
Keyword(s):  
Common Sense ◽  
Necessary Condition ◽  
Important Condition ◽  
The Common ◽  
The Law

AbstractIf we suppose that the decisions of a judge are not only determined by the law and if we want to explain these decisions, two questions can be asked: 1. Where in the law are possibilities for more than one decision? 2. Which decision will be chosen under what conditions?First the structure and questions of a theory of the behavior of judges is explicated. Then it is asked how judges decide, when they accept or refute facts, because the law gives no precise rules for such decisions. One important condition are the common sense theories judges accept. Some hints for the explication of such theories are given.In the law there are a lot of vague concepts. It is asked under what conditions the judge coordinates which concepts and which facts. One important condition are certain norms of the judge. A hypothesis is suggested which specifies the effect of such norms.Finally it is shown that a theory of the behavior of judges is a necessary condition for a critique of this behavior.

American Slavery and the Path of the Law

1996 ◽  
Vol 20 (2) ◽  
pp. 281-316 ◽  
Author(s):  
Jenny B. Wahl
Keyword(s):  
Common Law ◽  
District Of Columbia ◽  
Appellate Court ◽  
Accidental Injury ◽  
Henry V ◽  
American Slavery ◽  
American Law ◽  
The Common ◽  
The Law

There is some soul of goodness in things evil,Would men observingly distill it out.— Shakespeare,Henry VFederal and state appellate court reporters for the 15 American slave states and the District of Columbia contain nearly 11,000 cases concerning slaves. In deciding these cases, southern judges formulated doctrines that would later become commonplace in other disputes. In fact, the common law of slavery, whether it concerned the sale, hiring, or accidental injury of a slave, looks far more like modern-day law than like antebellum law. Slave law, in many ways, helped blaze the path of American law generally.

The Law of Nations at the Origin of American Law

2017 ◽  
Author(s):  
Paul W. Kahn
Keyword(s):  
Early American Republic ◽  
Early Nineteenth Century ◽  
Early American ◽  
Law Of Nations ◽  
American Law ◽  
Competing Models ◽  
The Law ◽  
Relationship Of ◽  
The Relationship ◽  
Domestic Law

This chapter proposes a new way of understanding the relationship between domestic law and the law of nations in the late eighteenth and early nineteenth century. It develops a theoretical structure by elaborating two competing models of order: project and system. These models differ fundamentally in their understanding of the source of order: a project relies on an external principle of order; a system relies on an immanent principle of order. Modern ideas of law have had to negotiate the tension between project and system. This paper argues that in the early American Republic, one locus of this tension was in the relationship of domestic, constitutional law to the law of nations, and that the reconciliation took the form of a theodicy.

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