Part 1 Refugees, 2 Refugees Defined and Described

This chapter defines and describes refugees. The term ‘refugee’ is a term of art, that is, a term with a content verifiable according to principles of general international law. In ordinary usage, it has a broader, looser meaning, signifying someone in flight, who seeks to escape conditions or personal circumstances found to be intolerable. For the purposes of international law, States have further limited the concept of the refugee. Defining refugees may appear an unworthy exercise in legalism and semantics, obstructing a prompt response to the needs of people in distress. On the one hand, States have nevertheless insisted on fairly restrictive criteria for identifying those who benefit from refugee status and asylum or local protection. On the other hand, the definition or description may facilitate and justify aid and protection, while satisfying the relevant criteria ought in practice to indicate entitlement to the pertinent rights or benefits. In determining the content in international law of the class of refugees, therefore, the traditional sources—treaties and the practice of States—must be examined, also taking into account the normative impact of the practice and procedures of the various bodies established by the international community to deal with the problems of refugees.

A Prima Facie Case for the Coercion Thesis: Sanctions as a Paradigmatic Feature of Municipal Law

Chapter 3 undertakes the first of the two steps of the modest approach explicated in Chapter 2 by showing that the Coercion Thesis better coheres than its negation with the canons of ordinary usage as they reflect our experience with systems of municipal law. It begins with an explanation of the canons of ordinary usage with respect to using the term law as it pertains to legal systems. It then argues that every existing system of municipal regulation we characterize as law backs some mandatory legal norms governing non-official behavior with the threat of incarceration. Since our experience with respect to distinguishing things counting as law from things not counting as law conforms to what one would expect given dictionary reports of the relevant canons of usage, these reports accurately express the linguistic conventions we adopt for using law and define a prima facie case for the Coercion Thesis.

Methodology and the Nature of Law

Building on the author’s analysis in MORALITY AND THE NATURE OF LAW (OUP 2019), Chapter 2 explicates and defends the philosophical methodology deployed throughout the book. It argues, to begin, that a conceptual theory of a thing can be properly grounded only in an analysis of the canons of ordinary usage governing the associated concept-term together with the assumptions about the metaphysical nature of the thing to which the concept-term refers that help to determine the content of these canons. It goes on to explain how conceptual analysis, thus conceived, can tell us something about the objective world despite being wholly grounded in intersubjective conventions. The chapter ends by describing a two-step methodology for explicating the metaphysical nature of a thing as it is determined by the canons governing the use of the associated concept-term.

Confused Terms in Ordinary Language

Confused terms appear to signify more than one entity. Carnap (1957) maintained that any putative name that is associated with more than one object in a relevant universe of discourse fails to be a genuine name. Although many philosophers have agreed with Carnap, they have not always agreed among themselves about the truth-values of atomic sentences containing such terms. Some hold that such atomic sentences are always false, and others claim they are always truth-valueless. Field (1973) maintained that confused terms can still refer, albeit partially, and offered a supervaluational account of their semantic properties on which some atomic sentences with confused terms can be true. After outlining many of the most important theoretical considerations for and against various semantic theories for such terms, we report the results of a study designed to investigate which of these accounts best accords with the truth-value judgments of ordinary language users about sentences containing these terms. We found that naïve participants view confused names as capable of successfully referring to one or more objects. Thus, semantic theories that judge them to involve total reference failure do not comport well with patterns of ordinary usage.

Introduction

As technocracy has spread, critical analysis of it has stagnated. In part, this is because the critics take an external perspective on technocracy, condemning it for being anti-democratic. This perspective discourages critical theorizing about whether technocrats possess the knowledge that, from an internal perspective, qualifies them to rule: knowledge of the costs and benefits of public policies designed to address people’s social and economic problems. However, once we thus recognize technocracy as an inherently epistemic enterprise, we discover that there is a democratic version of technocracy: ordinary citizens often assume that they, too, know the costs and benefits of policies aimed at solving social and economic problems. Indeed, we discover that much of modern mass politics revolves around competing claims about these costs and benefits. An internal critique of technocracy, then, will have to challenge the knowledge claims of both “technocrats” in the ordinary usage—epistocrats—and those of members of the mass public, or “citizen-technocrats.”

Plural Requirement

This chapter proposes a theory of Plural Requirement which allows us to vindicate much of its ordinary usage, but which does not count it as an instance of agential moral requirement. It explains, however, that the links to the agential idea are significant nevertheless, in a way that allows us to understand the way in which Plural Requirement is, broadly, a moral idea. The remaining extent to which it is not a familiar agential form of moral requirement transfers to the idea of social justice as Prime Justice, which is a form of Plural Requirement. This implication is not a great cost of the approach, however, so long as it might have been plausible from the beginning that principles of social justice are not, or at least not obviously, action requirements on agents. What that leaves unclear is how social justice requirements are moral requirements at all. Seeing how Plural Requirement is a broadly moral requirement will allow us to see how social justice requirements are broadly moral requirements as well.

The Choice of Relative Pronouns in the First Quarto and First Folio Texts of Shakespeare’s Richard III: Testing the Memorial Reconstruction Hypothesis

The present paper examines the choice of relative pronouns in the First Quarto and First Folio texts of Shakespeare’s Richard III, with the purpose of testing the adequacy of the memorial reconstruction hypothesis, which Patrick first proposed in his 1936 monograph. He notes a high proportion of corrupted readings in the Quarto, suggesting that it is a reconstruction of the Folio, created by actors relying on their inaccurate memories. On the other hand, Smidt (1964) demonstrates that the Quarto’s readings are preferable in many details, though he admits Patrick’s hypothesis, in part, in his second book (1970). Regarding the use of relative pronouns, there is a crucial difference between the two texts: the Folio uses that 13 times to introduce non-restrictive clauses, while the Quarto uses which, and these two items are never substituted the other way around. Interestingly, the Quarto’s choice accords with Shakespeare’s ordinary usage, whereas the Folio deviates from it. Thus, the memorial reconstruction hypothesis cannot explain the variants of relative pronouns. It will be posited that relative pronouns in the Quarto text may have been deliberately revised in the process of written transmission.

Ordinary Causation: A Study in Experimental Statutory Interpretation

In a series of recent split decisions interpreting criminal and tort-like legislation, the Supreme Court has purported to give statutory causation requirements their ordinary, plain meaning. Armed with dictionaries, examples from everyday speech, and commonsense intuitions, the Court’s majority has explained that statutory phrases like “because of” and “results from” entail but-for causation as a matter of ordinary usage. There’s just one problem: The Court’s majority (and the many state and federal courts following its lead) is wrong on the facts—specifically, the facts about how people ordinarily interpret, understand, and use causal language. This Article considers a novel approach to ordinary meaning statutory interpretation, using these recent causation cases as a proof of concept: To find how people would ordinarily construe statutory language in context, ask a lot of people to apply the disputed language, and observe what they do. In short, to find public meaning, ask the public. As a demonstration, the Article reports the results of a nationally representative survey of nearly 1500 jury-eligible laypeople. It tests the Supreme Court’s recent pronouncements about the ordinary meaning of causal language in Title VII, the Hate Crimes Prevention Act, the Controlled Substances Act, and jury instructions in similar criminal and statutory tort settings. The results reveal clear and consistent patterns of causal attribution and ordinary usage—patterns that squarely contradict the Court’s ordinary meaning determinations. The results also demonstrate that certain alternative causation standards, though rejected by the Court as inconsistent with ordinary linguistic, conceptual, and moral intuitions, come closer to tracking all three. These discoveries raise serious concerns about the outcomes in recent criminal and tort causation cases, and possibly about ordinary and plain meaning interpretation more broadly. After discussing the implications for causation doctrine and statutory interpretation, the Article considers whether similar experimental methodologies might shed light on additional interpretation controversies in criminal and tort settings, on theories of common law doctrinal development, and on philosophical analyses of causation in criminal and tort theory.

Rehabilitating Austin, Reassessing Grice: The Case of Cancellability

This paper assesses Grice’s work on conversational implicature in the light of one of its early targets: Austin’s claim that we cannot isolate the meaning of an expression from the context in which it is used. Grice argues that we can separate the literal meaning of many utterances from their pragmatic implicatures through the mechanism of explicit cancellation. However, Grice’s conception of cancellation does not account for the fact that an explicit cancellation must be uttered, and that its utterance involves further implicatures that undermine the attempted cancellation. What Grice calls explicit cancellations are better understood as utterances that resolve ambiguities, and hence apply only in cases where there exists an ambiguity that needs resolving. If Grice’s work does not undermine Austin, we are in a position to reassess an Austinian form of philosophical criticism that emphasizes the ordinary usage of expressions deployed in philosophical arguments.