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Displaying: 1-12 of 12 documents

1. The Paideia Archive: Twentieth World Congress of Philosophy: Volume > 33
Michael Anderheiden

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Famously, John Rawls is regarded as using reflective equilibrium (RE) to justify his principles of justice. But the point of justification by RE in Rawls's more recent work is not easily established since he regards his own work as still contractarian. In order to clarify matters, I distinguish between wide and narrow RE, as well as show that wide RE consists of several kinds of narrow RE: RE as a plea for (re)consideration, RE as a constructive procedure of choice, and safe ground RE. The connection of these REs is shown in order to reach justification. The point of introducing RE for justification is seen in opening the range of possible revisions to allow for consensus. However, (the lack of) wide RE for itself is not enough to bring about revision. Rather, an additional causal link between two kinds of RE is proposed to be necessary.

2. The Paideia Archive: Twentieth World Congress of Philosophy: Volume > 33
Ana Julia Bozo de Carmona

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Law at the end of the twentieth century is a practice based on legal-philosophical concepts such as the representational theory of truth, neutrality, universality, and legitimacy. The content of such concepts responds to the tradition of the western cultural paradigm. We share the experience of fragmentation in this cultural unanimity: we live in a world of heterogeneousness and multiplicity that upholds the claims of different concepts of the world and of life shared by dwellers in microspaces. The theory of law should be adapted to take this experience into account. We propose a change in direction oriented toward the creation of operational legal concepts: creative justice, perspectivist rationality, a systemic theory of truth and a judicial process that guarantees the multicultural experience. Postmodernity affirms the urgent need for a new form of legal reasoning.

3. The Paideia Archive: Twentieth World Congress of Philosophy: Volume > 33
Willard F. Entemann

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This paper presents a conceptual analysis of Richard Posner's empirical theory of judicial behavior. His theory opposes the conventional view which holds that judges are insulated from external pressures so their judicial decisions will be based upon a disinterested understanding of the law. Since economics holds that all people — including judges — attempt to maximize their utilities, Posner thinks that the conventional view is an embarrassment which presumes judges are not rational. His theory holds that the judicial insulation has actually left judges maximizing their utilities by trading judicial utility against leisure utility. Posner's theory presents a challenge to the hope for a disinterested judiciary. It threatens as well to eliminate the philosophy of law by reducing it to what he calls antecedent conditions.

4. The Paideia Archive: Twentieth World Congress of Philosophy: Volume > 33
Emmanuel Q. Fernando

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The requirement that legal reasoning be universalizable is so unquestioned as a legal doctrine that it is practically axiomatic. Recently, two Philippine Supreme Court cases have been decided in a manner that apparently dispenses with this requirement. I discuss these two cases in the light of the requirement. I conclude that the requirement, rather than being diminished by the two cases, has actually maintained its axiomatic status on the basis that the reasoning in the two cases is deficient: the first either for inequality in treatment or for lack of clear guidance, and the second for the failure to appear impartial.

5. The Paideia Archive: Twentieth World Congress of Philosophy: Volume > 33
Alexander S. Fesenko

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This paper advances the idea that Russian constitutionalism developed through a reinterpretation of Russian history in terms of Hegel's concept of the World Spirit. Russians implicitly viewed their nation as the embodiment of Hegel's World Spirit, which would have a unique messianic mission for humanity. However, the specifics of Russia's historical development diverged from Hegel's critical stage of ethical development, in which individuals would be mutually recognized as free beings. For this reason, the rights of the individual in Russia were seen until recently as originating exclusively in the state and valid only insofar as a given individual constituted an organic part of the whole or collective. I give examples from all six Russian and Soviet constitutions. I also demonstrate how the 1993 post-Soviet constitution represents a major breakthrough in the advancement of individual rights in Russia.

6. The Paideia Archive: Twentieth World Congress of Philosophy: Volume > 33
Norman Fischer

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The striking down of the Stanford University Hate Speech Code on February 27, 1995 demonstrated the strong animus in U.S. First Amendment decisions against such codes. Judge Peter Stone, applying the U.S. Supreme Court decision in R.A.V. ruled, first, that the Stanford Code was too broad, and second, that the state cannot censor content by picking out some "fighting words" to prohibit. I argue that the moral basis for banning overbroad codes combines a nonconsequential emphasis on the value of liberty with a consequentialist analysis of what happens when liberty that should be protected is entangled in codes reflecting liberty that should not be protected. In contrast, the moral basis for content neutrality does not depend on consequentialist thinking, but shows that the very search for a moral basis for banning the purest acts of hateful speech logically makes the speech protected by elevating it to a viewpoint.

7. The Paideia Archive: Twentieth World Congress of Philosophy: Volume > 33
Frederic R. Kellogg

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This paper approaches Bentham's ontology of rights from a viewpoint influenced by American philosophical pragmatism. I examine how rights are conceived and discussed in relation to the real. Jeremy Bentham maintained that all rights are "fictitious entities." But, in privileging "political" over moral and natural rights, Bentham implies that legal rights stand in a privileged position over natural rights with regard to the relation of mind to the actual. By reason of its enforceability through sanctions, a legal right for Bentham has a privileged connection to the real. I argue that nonlegal rights can be conceived as bearing a roughly parallel relation to the real in guiding human conduct by suasion rather than sanctions. Their relationship to "something real and observable" is their relation to voluntary conduct through belief. Bentham's ontology dictates a distinct legal and political system. Practically, it leaves the real existence of rights entirely in the hands of government officials, and the only choice of humans interested in securing rights lies in their enactment and enforcement in and through a legal regime.

8. The Paideia Archive: Twentieth World Congress of Philosophy: Volume > 33
Hans Jörg Sandkühler

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The problem of the coexistence of cultures arises inside modern societies that have a constitutional set-up expressed by 'pluralism.' Their central problem lies in the relationship between individuality and sociality, freedom and order. The function of law is to transform absolute pluralism into a relative pluralism limited by fundamental common interests, thus overcoming the problems that arise from the variety of different views of the world and from different values. In the context of H. Kelsen's Reine Rechtlehre, we ask: 1. Do pre-positive legal grounds exist that can claim to have universal validity under the conditions of pluralism? 2. Can the demand for pre-positive principles of law be compatible with renouncing particular material assertions of values on which no agreement can be reached and replacing them with the universally valid formal principles demanded in pluralistic democracies?

9. The Paideia Archive: Twentieth World Congress of Philosophy: Volume > 33
Galina Sorina

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The purpose of my paper is to compare those texts of Russian and Western thinkers where the relations between logic and law are discussed, and especially to show both the differences and the agreements of their understanding of this connection. Second, I would also like to show and contrast the place of logic and law in Russian and Western systems of education. Third, I propose to clarify some conclusions from my analysis of these relations for understanding the social life of a country and its culture. I believe that this is possible since the relations between logic and law, which are a special subject-matter, are only a part of a larger whole. There is no hard and fast line separating the place of these relationships from the whole of culture. The quality of this relationship is an indicator in some sense of the nature of culture and of its democracy. I would like to show with regard to the West that the classical logical culture determines the types of rationalities, argumentation patterns, and various kinds of political and juridical rhetorics. The consequences of the lack of logical culture in Russia will also be shown.

10. The Paideia Archive: Twentieth World Congress of Philosophy: Volume > 33
Julie Van Camp

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Reno v. ACLU, the 1997 landmark decision by the United States Supreme Court providing sweeping protection to speech on the Internet, is usually discussed in terms of familiar First Amendment issues. Little noticed in the decision is the significance of the ontological assumptions of the justices in their first visit to cyberspace. I analyze the apparent awareness of the Supreme Court of ontological issues and problems with their approaches. I also argue that their current ontological assumptions have left open the door to future suppression of free speech as the technology progresses. Ontology is significant because zoning in the physical world has long been recognized as a way to segregate "adult" entertainment from minors. So far, at least, the justices seem to agree that such zoning is not possible in cyberspace, and therefore that adult zones for certain forms of expression are not possible. But this conclusion is far from settled. The degree of free speech on the Internet in the future will depend on whether or not our ontological understanding of cyberspace supports such zoning or renders it incoherent or impossible.

11. The Paideia Archive: Twentieth World Congress of Philosophy: Volume > 33
Barbara Wendling

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The paper compares the Anglo-American and continental legal systems in parallel with a comparison of the philosophical foundations for each. The defining philosophical distinction between the two legal traditions (viz., the Anglo-American system is predicated on idealism and the continental system on materialism) is shown to influence the way in which criminal justice is handled by the two systems as applied to citizens, and how this influence is carried across to the regulation of business as applied to corporations. The idealistic (possibly theological) worldview inherent in the Anglo-American legal system explains its moral presumptions regarding human freedom, dignity, and responsibility, while the materialist worldview inherent in the continental legal systems explains its amoral assumptions about human motivations and behavior. I suggest that while the Anglo-American legal system may be justified in its moral philosophical presumptions as applied to citizens, the continental legal system, with its amoral assumptions, more accurately reflects corporations than citizens. Understanding how the philosophy behind the two legal systems influences the application of law in modern society can lead to improvements in public policy.

12. The Paideia Archive: Twentieth World Congress of Philosophy: Volume > 33
Peter S. Wenz

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Developing ideas first put forth in my Abortion Rights as Religious Freedom, I argue against Ronald Dworkin's liberal view of constitutional interpretation while rejecting the originalism of Justices Scalia and Bork. I champion the view that Justice Black presents in his dissent in Griswold v. Connecticut.