Shaughnessy, App. Shedd, Ill. Perry v. Strawbridge, Mo. Phelps v. Nowlen, 72 N. Piper v.
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Ekern, Wis. Planz v. Boston R. Plumstead Board of Works v. Spackman, 13 Q. Pollock v. Priestley v. Fowler, 3 M. Printing and Numerical Registering Co. Sampson, L. Printing Co. Sampson, 19 Eq. Prior of Castleacre v. Dean of St. Stephens, Y. Pumpelly v. Green Bay Co. Raasch v. Elite Laundry Co.
Regents v. Rex v. Russell  Vict. Richards v. Daggett, 4 Mass. Richardson v. Mellish, 2 Bing. Shaw, U. Rigby v. Connol, 14 Ch. Adamson, 2 A. Roberson v. New York Folding Box Co. Robertson Lumber Co. Bank of Edinburgh, 14 N. Robinson v. Roe, Fed. Wiley, 15 N. Rogers v. Peck, U. Rose v. Socony-Vacuum Corp. Rous v. Russell v. Rylands v. Fletcher, 3 Hurlst. Salomon v. Salter v. Nebraska Tel. Scarff v. Metcalf, N. Schlemmer v. Buffalo, R. Sears v. Cottrell, 5 Mich.
Shevlin-Carpenter Co. Minnesota, U. Shipley v. Associates, Mass. Silsbury v. McCoon, 3 N. Simon v. Southern R. Sinclair v. Brougham  A. Slaughter-House Cases, 16 Wall. Smith v. Smith, 48 N. Sneider v. Heidelberger, 45 Ala. Sohier v. Massachusetts General Hospital, 3 Cush. Southern Pacific Co. Jansen, U. Sewell, 18 Ga. Spaulding v. State Bank v. State v. Barker, Ia. Carter, 27 N. Goodwill, 33 W. Greene, 83 Neb. Haun, 61 Kan. Horton, N. Houghton, Minn. Knight, Taylor N. Kreutzberg, Wis. Laundy, Ore. Loomis, Mo. Nemaha County, 7 Kan. Quinn, La. Louis Advertisement Co.
City, Mo. Louis v. The Ferry Co. Stuart v. Palmer, 74 N. Sullivan v. Dunham, N. Szabo v. Pennsylvania R. Taylor v. Porter, 4 Hill N. Slaughter, Okl. Terrett v. Territory v. Manton, 8 Mont. Texas R. Frazer, S. Thayer v. Purnell  2 K. Tonawanda R. Munger, 5 Denio N. Truax v. Corrigan, U.
Trustees of Dartmouth College v. Turpin v. Lemon, U. Tyler v. People, 8 Mich. Union Pac. Cappier, 66 Kan. United States v. Cruikshank, 92 U.
Knowles, 4 Sawy. Mine Workers, U. Oregon Lumber Co. Universal Lodge v. Valentine, Md. Updegraph v. Commonwealth, 11 Serg. Urie v. Thompson, U. Vidal v. Girard, 2 How. Village of Euclid v. Ambler Realty Co. Virginia Homestead Cases, 22 Gratt. Volger, Re. Wall, Ex parte, U. Walls v. Midland Carbon Co. Wan v. Ward v. Huhn, 16 Minn. Warfield, Ex parte, 40 Tex. Watson v. Maryland, U. Weaver v. Thurmond, 68 W. Welch v. Wadsworth, 30 Conn. Wells Fargo Express v.
State, 79 Ark. Wenham v. State, 65 Neb. West Coast Hotel Co. Parrish, U. Westervelt v. Gregg, 12 N. West v. Louisiana, U. Wetherbee v. Green, 22 Mich. Whitesides v. White v. White, 5 Barb. Wilkinson v. Leland, 2 Pet. Willard v. Tayloe, 8 Wall. Williams v. Hays, N. Wilson v. New, U. Winberry v. Salisbury, 5 N. Windsor v. Whitney, 95 Conn. Winthrop v. Arcos, Ltd. Woods v. Woods, 4 All. Byrd, 89 Miss. Yick Wo v. Hopkins, U. Youngstown Co. Sawyer, U. Zeisweiss v. James, 63 Pa. This meaning was generally assumed in definition of law from the Middle Ages to the end of the eighteenth century.
Law was an aggregate of laws and a law was an authoritative rule of conduct for the individual man. Bentham put it so 1 and such was generally the position of the English analytical jurists. It became a practical question recently in what is likely to prove a leading case under the new constitution of the State of New Jersey.
This regime is the most highly developed form of social control in the modern world. It is a specialized form of social control, carried on with a body of authoritative precepts, applied in a judicial and administrative process. After law had been defined by Greek philosophers and Roman jurists, and by philosophers, publicists, jurists, and lawyers, from Thomas Aquinas to Grotius and Pufendorf and Hobbes and Blackstone in terms of laws or rules of law, Kant at the end of the eighteenth century applied the term to the condition which the body of precepts brings about or seeks to bring about and so came near to the idea of the legal order.
As was said above, a second sense of the term law, is to mean the authoritative materials by which controversies are decided and thus the legal order is maintained. It is the sense in which law is said to be an aggregate of laws. But in truth here also there is no simple conception.
I undertake to say that law in that sense is made up of precepts, technique, and ideals.
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There is a body of authoritative precepts, developed and applied by an authoritative technique, in the light of authoritative traditional ideals. Law in the second sense is commonly thought of as simply Edition: current; Page: [ 3 ] a body of authoritative precepts. Moreover, the ideal element of law in the second sense, the body of received, authoritative ideals, which is the background of interpretation and application of legal precepts and is crucial in new cases in which it is necessary to choose from among equally authoritative starting points for legal reasoning, often has more significance in the administration of justice according to law than the text of the precepts applied.
As a consequence of development of the functional attitude toward the science of law, there began a generation ago to be increased attention to the phenomena of the actual administration of justice as contrasted with exclusive attention to the authoritative materials for guidance of judicial action. Writers on jurisprudence from a psychological standpoint are concerned chiefly with the judicial process or with both the judicial and the administrative processes as phases of one type of governmental activity.
In truth, the precept element itself is complex, composed of rules in the strict sense, precepts prescribing definite detailed legal consequences for definite detailed states of fact; principles, i. This precept element may be looked at with respect to the form in which the laws are expressed, reflecting the source of their authority, or with respect to the point of view from which we regard them.
They have looked very different to jurists according to the form looked at or the standpoint of observation chosen. Law as an aggregate of legal precepts may be defined with reference to the source of authority or with respect to the form regarded as typical. When thought of in terms of the authority which promulgates it and puts coercion behind it, jurists have spoken of enactment or promulgation by the ruling organ of a politically organized society. Hence, we get definitions of a law in terms of the imperative type of legal precepts. More significant differences, however, come from the standpoint of purpose from which legal precepts may be regarded.
One such standpoint is that of the citizen or subject who wishes to know what he should do, as an upright and law-abiding person, at the crisis of action. To him a law is a rule of conduct. Justice Holmes thought the question as to the nature of a law should not be put from the standpoint of the conscientious good man, seeking guidance as to what is right, but from the standpoint of the unconscientious bad man who seeks to know how far he may do what he wishes to do with impunity or at least a reasonable prospect of impunity.
To such a person law is a body of threats of what the public authorities may do or a person aggrieved may do to him if he does some particular thing he has in mind or does not do something he wishes to avoid doing. This threat theory of a law has been much urged in the present century. In the same paper Mr. Justice Holmes speaks of a law from another standpoint, namely, the standpoint of a counselor, advising clients as to their rights and liabilities.
From this standpoint, he says, a law is a prediction Edition: current; Page: [ 6 ] of what the courts or administrative agencies will do, given a particular state of facts or particular situation. Hence, Mr. Justice Cardozo combined the threat idea and the prediction idea, saying that a law is a rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged. Another standpoint from which the nature of a law may be looked at is that of the judge, called upon to decide a case pending before him and looking for an authoritative ground of decision.
He may think of a rule of conduct which is, therefore, a rule of decision. Or he may think of a model or pattern of decision of such cases as the one before him. Finally, there is the standpoint of the jurist or the law teacher who seeks to put the body of legal precepts in the order of reason for the purposes of systematic exposition.
Today jurists have come generally to think of a legal precept as an authoritative pattern of what ought to be in conduct, in official action and in decision. We find Edition: current; Page: [ 7 ] that we must take account of certain ideals of what those authoritative materials should be and how they should be understood and applied in order to achieve the end and purpose of the legal order by means of the judicial process. The term comes from a Greek word meaning basically something one sees. Applied to action, it is a mental picture of what one is doing or why, to what end or purpose, he is doing it.
Postulating a good lawmaker and a good judge, it is a picture of how the one ought to frame the laws he enacts and how the other ought to decide the cases that come before him. But behind these pictures of what ought to be the enacted or the judicially formulated precept for the case in hand is a basic mental picture of the end or purpose of social control—of what we are seeking to bring about by adjustment of relations and ordering of conduct by social pressure on the individual and so immediately of what we are seeking to achieve through adjustment of relations and ordering of conduct by systematic application of the force of politically organized society.
Such ideals may be the avowed basis of determination or may be held and made the background of their decisions by judges unconsciously or, one might say, half consciously, being taken for granted as a matter of course without conscious reference to them. Often they have a traditional authority from having been received in the thinking and understanding of practitioners and judges—an authority, therefore, quite as legitimate as that of traditionally received precepts.
Often they have been assumed in a long course of teaching and writing so that lawyers and judges, perhaps for generations, have assumed them as a matter of Edition: current; Page: [ 8 ] course as the criteria of valuing claims or expectations, of deciding upon the intrinsic merits of competing interpretations, of choosing from among possible starting points of legal reasoning or among competing analogies and of determining what is reasonable and just. Sometimes we may find this body of received ideals referred to in the lists of subsidia in codes or in authoritative or semiauthoritative expositions of codes.
Are ideals of this sort a part of the law? Shall we say that the ideals which enter into the judicial process in action are partly inside and partly outside of the law? Some, shall we say, are felt by lawyers and judges to be authoritative so that they ought to be applied in adjudication, while others are subjective and personal to particular judges and magistrates and can properly operate no further than to shape or help shape judicial action in matters which the law commits to discretion?
Because men tend to do what they think they are doing, professional and judicial ideals of the social and legal order have been and are a decisive factor in legal development. Such ideals may be so generally and firmly established with the weight of authoritative tradition behind them as to be a form of law in the strictest analytical sense. They are often quite as generally and authoritatively received as the legal precepts whose applications they determine and shape and content they fix.
If it is said that many formulations Edition: current; Page: [ 9 ] of such ideals fail of acceptance and many ideals are urged which remain wholly subjective and are never authoritatively received or established, the same is true of proposed formulations of legal principles, of attempts to define the limits of legal standards, and of precise statements of rules of law.
Everything which is urged in the name of the law does not succeed in establishing itself among the authoritative legal materials. Sources then would be the unauthoritative materials from which the authoritative forms get their content. The ideal element in law, if I am right, should have the same thoroughgoing analytical study which has been given to the precept element.
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We should be studying whence came our received ideals and the newer formulations which are pressing upon tribunals. We should investigate how they have taken form and how they are used. Much study of legal precepts in action has missed effectiveness because it has ignored this element. My point may be made best from the American cases because in the formative era of American law the courts were seeking to develop a common law for independent America from the common law of England as Edition: current; Page: [ 10 ] it had taken form in the seventeenth and eighteenth centuries.
What they thought they were doing and why they were doing it had a special importance in the performance of such a task. Ideals to which American judges have sought or tended to make the traditional or the enacted legal precepts conform may be ideals of the social order, and so of the end of law, or they may be ideals of the authoritative materials by application of which to the adjustment of relations and ordering of conduct that order is maintained and the end is to be achieved. The latter are more articulate in the reports. Moreover they reflect and help us understand the former.
Let us, then, look first at judicial ideals of the content of the precept element of American law. Let us scrutinize judicial pictures of the materials in which the judges held themselves bound to find the grounds of deciding cases. What did they take these materials to be? How did they conceive of the content of the body of legal precepts they were administering? One way of looking at a body of legal precepts is ethical. It assumes an ideal body of legal precepts derived by reason from an ideal of what a perfect man would do and would not do.
This is the classical natural law of the eighteenth century. Let us recall the task of the formative era of American law in which this ideal was dominant. It was necessary to make the common law of England, heavily burdened with the formalism of the strict law, shaped by ideals of the relationally organized society of the Middle Ages, speaking from an era of organization, applicable in a time of commercial development, to the needs and ideas of men who were opening up the wilderness in an oncoming era of individualism.
In our social development we began with a pioneer society struggling to subdue the wilderness and defend against the Red Men. Then followed a time of settled agriculture, an era of small towns. Upon this followed a period of commercial progress, involving the rise of seaport cities and trade centers.
Then came industrial supremacy and the rise of great metropolitan centers. Some of these stages have followed rapidly at times and in places and more slowly in others. They Edition: current; Page: [ 11 ] called for ideas of adaptability tempered by considerations of the stability required by the economic order.
Such ideas were drawn from the ideas of the jurists of the eighteenth-century law-of-nature school. But our American course of judicial decision began after the doctrine of this school was losing its vogue and it seldom appears as such in the law reports. The law is taken to be a body of reasonable precepts expressing an ideal of justice or a body of precepts expressing an ideal of rights—an ideal of secured moral claims or expectations.
The former was commonly given a content from a philosophical version of the historical common law, or sometimes from comparative law. The latter was likely to get a politicolegal content from the bills of rights. A closely related type of thinking proceeds on a postulated religious natural law. In America it conceived of an ideal Christian society and so of the legal precepts which would obtain in such a society. A type which has been most in evidence in American judicial decisions may well be styled a political natural law. In one form it proceeds upon the nature i.
For more than a century this was so universally received and so completely established in American constitutional law that we may well say the ideal was formulated as a standard for judging of legislative and administrative action. The Edition: current; Page: [ 15 ] interpretation of the limits imposed upon the federal and state governments in America by constitutional provisions for due process of law, as securing against what the courts regarded as arbitrary and unreasonable exercise of powers, was derived not from the historical materials of Anglo-American public law, but from an ideal of political action in the New World.
Closely related to the political-philosophical natural law is an economic-philosophical type in which the doctrine of laissez faire, as set forth in the classical political economy, is taken as the ideal of an economic order under an American constitution, and constitutional guarantees are taken to be declaratory thereof. In the statement which has had the most influence, Field, J. There is no safer rule than to leave to individuals the management of their own affairs. Every individual knows best where to direct his labor, every capitalist where to invest his capital.
If it were not so, as a general rule guardians should be appointed, and who would guard the guardians? To this day the law as to legal transactions of married Edition: current; Page: [ 17 ] women is made difficult by the attitude taken by the courts when these acts first came before them. On the other hand, it pictured women as in the home, not about in the world entering into all manner of legal transactions. The one set of statutes conformed to the picture and was given more than full effect.
The other did not and was held down in operation. Both were in derogation of the common law. But it is significant that the doctrine of strict construction of statutes in derogation of the common law was not applied to the laws which overhauled the law of real property and purged it of archaisms. The difference in judicial treatment is not to be explained analytically by the common-law canons of interpretation.
It rested on an ideal of what the law of torts should be, drawn from Continental metaphysical jurisprudence, by which the analytical and historical jurists Edition: current; Page: [ 19 ] of the nineteenth century were seeking to overhaul the law. In contrast to the ethical ideal which derived from eighteenth-century natural law, and the political ideal, which was closely connected with the historical and metaphysical thought of nineteenth-century jurists, a picture of law as a body of logically interdependent precepts, authoritatively established and self-sufficient, without the need of ideals, had much vogue in the last century.
It goes back to the medieval conception of the Corpus Iuris as a complete and authoritative body of rules, to be interpreted and applied by a logical process and admitting only of development by an authoritative technique. From this standpoint the nineteenth-century analytical jurists took the science of law to be a mere comparative anatomy of developed systems of legal precepts. They rigidly excluded all questions of what ought to be.
Any ethical consideration was irrelevant. It had to do with what ought to be, and what ought to be was not law. From the latter part of the nineteenth century this conception of the science of law and its ideal of the legal order have been under vigorous attack from many sides. It is a picture of a body of law as it is conceived it ought to be. It is no more a fact than the Edition: current; Page: [ 20 ] body of ideal precepts discoverable in detail by reason believed in by jurists in the eighteenth century.
The analytical jurist did not discover a universal plan of which each particular legal precept as it actually obtains is a part, as, for example, one of the fragments is a part of a picture puzzle. He sets up a logical plan which will explain as much as possible of the actual norms or models of decision employed in the administration of justice, and criticizes the unexplained remainder for logical inconsistency therewith. No such system exists anywhere, nor did it ever exist. To postulate such a system serves excellently to organize and make available the authoritative materials of judicial decision.
At any rate the one Professor Gray invokes is generically the same as the ethical ideals and political Edition: current; Page: [ 21 ] ideals above considered. It is a philosophical-economic conception to which it is conceived the administration of justice ought to conform. This analytical ideal, as would be expected where the English legal tradition prevails, proves at bottom, when compared with the ethical and political ideals of law, to be political. Although the ideal of a body of law held by the analytical jurists in the nineteenth century had behind it a picture of politically organized society, it was a picture drawn from the nationalist polities of the sixteenth century.
But three governing ideas as to the nature of law, that is, as to the nature of the body of authoritative materials for the guidance of judicial and administrative action, which obtained in the later Middle Ages, have been more widely accepted and have been persistent in legal and juristic thought. First, there is the universal idea, the ideal of law as a body of precepts of universal authority, universal content, and universal applicability.
Second, there is the idea of relationship, the ideal of law as a body of precepts dealing with relations and flowing from or attaching to relations; as a body of precepts governing men because of the relations in which Edition: current; Page: [ 22 ] they find themselves. Medieval society was relationally organized. Evidently this ideal of law proceeded from an idealizing of existing society as did the ideal of the end of law held at the same time.
It should be contrasted with the nineteenth-century idea of law as deduced not from relation but from freedom; as expressing not the duties of men in relations but the rights of independent, self-sufficient, free-willing entities. Third, there is the idea of authority, the ideal of a body of precepts authoritatively imposed upon men from without by an unchallengeable authority, to be interpreted and applied but not subject to local change nor to be added to or subtracted from in this or that place. Thus in the latter Middle Ages there was, in the first place, an ideal of a universal body of precepts resting on an external universal authority governing all Christendom.
Jurists postulated a universal church, with exclusive jurisdiction over matters of spiritual cognizance, and in consequence its own body of universal law. In the politics and law of the Middle Ages the distinction between the spiritual and the temporal, between the jurisdiction of religiously organized Christendom and the jurisdiction of the temporal sovereign, that is, of a politically organized society, was fundamental. How the ideal of a universal church gave a stamp to doctrines and institutions which has endured ever since may be seen in the law of marriage.
The academic teachers of law, the doctors of the civil and canon law in the universities, had before them the ideal of a universal law, and the doctrine of the twelfth-century canonists has maintained itself everywhere as the basis of the law on this important subject. It is significant that in the face of the ultra-individualism of nineteenth-century law, in the face of the general emancipation of women and straining of the last century to treat all things in terms of the individual will, the idea of marriage as a condition which cannot be terminated by the act of the parties but only by nature or the law was able to persist.
Again the medieval academic teaching of law postulated the continuity of the empire. This was a juristic ideal of a universal law for the temporal concerns of all Christendom; an ideal of Christendom ruled by one law to be found in the law books of Justinian. The development of the texts of the Corpus Iuris to this ideal gave a body of received, authoritative Edition: current; Page: [ 24 ] grounds of judicial decision which has endured as the basis of the legal system in half of the modern world.
In this way, the peripheries can become venues for discussions between different intellectual movements that are hardly ever confronted in the centres, thus providing a fruitful soil for creative thinking beyond conventional borders Casanova 43; Skirbekk However, the problems and challenges of the periphery were undoubtedly framed in a different way in Sweden than they were in Finland and Norway. While in Finland and Norway it was seen as a merit and advantage to be in contact with a celebrated foreign philoso- pher or school, such connections were more often received with suspicion in Sweden.
This is not necessarily to say that Swedish intel- lectuals were less dependent on cultural imports than their Finnish or Norwegian colleagues. It merely meant that they had to present foreign ideas in a different way. As previously mentioned, in the s Sweden evolved from being a poor, small and peripheral country, to a modernistic beacon that had little to learn from the outside world see above: On the other hand, the difference between Sweden and Finland can also be traced back to at least the 19th century.
While German Hegelianism enjoyed nothing less than a hegemonic position in Finnish philosophy during the 19th century, For a discussion of the turns regarding the appointment of Kaila to the Chair in Philosophy in Helsinki , see Niiniluoto Arguably, however, this must not merely be interpreted as a difference in national culture. The situation in Sweden was more like that in the greater European countries, where different intel- lectual and philosophical traditions and cultures were concentrated around different universities, departments and chairs.
On the other hand, the comparative internationalism of Lund must also be understood in terms of its geographical location close to Copenhagen, which made relations not only to Denmark but also to the European continent, easier and more natural than in Uppsala. Philosophy and politics It was largely the position of Uppsala philosophy in the Swedish cultural and political debates that made it so important for the younger generation. It is therefore necessary to give considerable weight to politics as an important aspect of the field in which these intellectuals manoeuvred.
But if the relation between philosophy and history is complex and troublesome, the relation between philosophy and politics arguably raises even more methodological challenges. Philosophy is often conceived of as primary and some- times even foundational to political praxis. Philosophical ideas, theories and texts are seldom intended as complete and coherent ideologies — as models applicable in any given society — but rather as contributions to particular philosophical and political debates in particular historical contexts.
In this sense, the idea of the eremite philosopher is surely a misleading myth. Bexell and Sigurdson The claim, to repeat what has been said earlier, is not that the historical-political context determines the actions of the individual; instead the context should be understood as a Spielraum in which actors make their moves, which simultaneously constitutes a background against which their actions can be interpreted by the historian. The aim of my studies has neither been to analyse the political effects of Uppsala philosophy or logical empiricism, nor to scrutinise the relation between an alleged philosophical superstructure and a certain social-political basis.
Rather, the intention has been to look at how a number of philosophers and intellectuals manoeuvred in a historical context that was largely defined by certain political chal- lenges. Phi- losophical ideas are not examined as answers to perennial philoso- phical problems, but as attempts to overcome challenges raised by the particular historical situation. There are many recent studies that have with great success applied a historical-political perspective to the philosophers and philosophies of the s and 40s. Politics 73 ent opportunistic purposes Sluga Many studies have emphasised the political context in which the Vienna Circle was formed — their relations to the Monists, the Freethinkers, the Bauhaus movement, and to the labour organisations — and argued that it cannot be viewed as essentially separate from the philosophical programme of the circle.
The political dimension of logical empiricism was also central to how the Vienna Circle was understood in its domestic context. As pointed out by Friedrich Stadler, the official organisation of the group, the Verein Ernst Mach, was dissolved as a Social Democratic organisation when the Austro-fascists of Engelbert Dollfuss gained power in Stadler 61, Eventually the rise of fascism and finally the Anschluss meant the exodus of logical empiri- cism from the European continent.
It has even been argued that the post-war divide between analytic and continental philosophy was largely an indirect consequence of the political development around the Second World War, as most of the logical empiricists remained in the United States after the war Collins ; Simons ; Sluga 11; Strang I: George Reisch, in turn, has analysed the transformation and depoliticisation of logical empiricism after the move over to the United States, particularly during the era of McCarthyism in the early Cold War period Reisch The aim of my studies has been to read the authors in a political way, i.
It must be emphasised that not all the intellectuals examined in my studies were active in party politics. In fact, it was only Gunnar Myrdal, Herbert Tingsten and Alf Ross who were members or active supporters of the Social Democrats, and among them it was only Myrdal who can be considered to have been a leading, albeit very controversial, ideologist of the party. In any case, as public intellectuals and agenda setters, the Myrdals must be seen as very important, and their position in modern Swedish history is almost mythological.
Fonsmark Politics 75 Social Democrats and the Liberals Folkpartiet , whom his wife represented in the municipal council Nordin b: Except for their criticism of Marxism, there are few signs of political engagement in the writings of Marc-Wogau and Wedberg. But this relative lack of party-political engagement does not mean that the philosophical and theoretical writings of these intellectuals were without political connotations.
Indeed, one of the main benefits of a Skinnerian perspective on the relation between philosophy and politics is that one can avoid generalising and essentialising claims that the Uppsala School was a Social Demo- cratic philosophy without abandoning the idea that the historical actors nevertheless conceived of their philosophical and political ambitions as intimately connected. The value nihilistic theory was used as part of a radical and progressive cultural and political rhetoric that aimed to overcome traditional and conservative views in favour of social and political reforms see e.
Its critics conceived of it as a culturally and politically dangerous See e. Danielsson With the rise of totalitarianism on the European continent and eventually the Second World War, these critical voices gained strength. Accordingly, the young generation of value nihilists found themselves in a position where the theory that they supported and were establishing themselves as the main representatives of was under increasing political fire.
The situation prompted a reply, and it was not only a matter of finding an answer that would satisfy themselves and their critics; it was also, to a considerable extent especially for the philosopher Hede- nius , a matter of saving the reputation of Uppsala philosophy. It is important to notice that the intellectuals never seemed to consider abandoning the value nihilistic theory. Value nihilism constituted a central part of their worldview, and instead they put much effort into elaborating and redescribing it.
This caused much frustration, not least as the legal sovereignty of the Nordic countries was under increasing threat from revolutionary political movements and also from foreign armed forces. The three challenges were, of course, intimately related to each other; not only because most of the intellectuals examined in my studies were supporters of both democracy and Social Demo- cratic social reforms, but also because the challenges basically concerned the same problem: how can the value nihilistic theory be combined with a strong normative political conviction and pro- gramme?
If value statements cannot be true or false, how is it In a subsequent pamphlet, England eller Tyskland a , Olivecrona explicitly gave his support to Germany. My studies argue that the younger generation of Uppsala philosophers looked for a solution to the challenges in two separate directions. On the one hand, they often stressed the responsibility and fate of the individual to make a personal moral decision, and in this sense they expressed an almost existentialist view on morals.
On the other hand, they often seemed to argue that there was, as a matter of empirical fact, a strong consensus on a basic set of fundamental values and that these shared values could be taken as a starting point in an instrumental argument in favour of democracy or social engineering. The usual response of the value nihilists to the charges that their theory, in one way or another, led to the decline of civilisation, to the rise of totalitarianism or to a practical nihilism according to which everything is allowed , was to insist on a strict epistemo- logical division between fact and value, between science veten- skap and morals moral.
As a scientific theory on the proper analysis of moral judgement, they argued, value nihilism could not serve as a basis for any normative moral judgement, not even one that claimed that everything is allowed e. Hedenius Nevertheless, the younger generation of value nihilists empha- sised that the distinction between science and morals, between meaningful and meaningless sentences, was not to be understood as a claim that ethics and values were unimportant.
Politics 79 they were keen on stressing that the value nihilistic theory did not prevent anyone from having or expressing strong moral beliefs. Ross Indeed, from the point of view of Hedenius and Ross, it was one of the main strengths of their theory that they could distinguish the fundamental and important political and moral questions, such as the one between democracy and totalitar- ianism, from the mere empirical and scientific questions of how a legal system is construed Blandhol From their per- spective, they defended the autonomy of morality and the integrity of the individual from alleged moral authorities that by means of rational-scientific arguments tried to prove that a certain moral behaviour was correct.
Everyone is free to choose his or her own values, but must also be responsible for his or her choices, they argued. On this point the value nihilists seemed, as Bo Petersson has noted, to nurse ideas parallel to contemporaneous existentialists such as Jean Paul Sartre Petersson b: But the connection is by no means absurd. See also Strang IV: Likewise, in his quest for British intellectuals, Stefan Collini notes that for a short period after the Second World War, the logical empiricist Ayer was actually known as one of the few people in Britain who knew something about existentialism Collini There are no authoritative answers to how people ought to live their lives; in the end each individual has an inescapable responsibility of choice.
A similar attitude can to a large extent be said to have characterised the Scandinavian value nihilists during the s and 40s. Even if they strongly argued that moral statements cannot be true or false, none of them appeared to be concerned that this might represent an existential problem. While both France and Norway were occupied by the Nazis, the German occupation in Scandinavia was arguably conceived of as less precarious, agonizing, and nationally shattering than it was in France.
Sweden, in turn, was never occupied. Politics 81 contrary, they seemed to view it as a source for optimism; as evidence of the fact that the world is ours to make. The existentialist response was, however, bound to be criticised as impotent when it came to the challenge of totalitarianism. According to the critics, the value nihilist appeal to the respon- sibility of the individual was effectively to surrender to the destruct- tive forces at play. Another response, therefore, proceeded from the idea that people do in fact choose to endorse certain values, and that these valuations can as empirical facts be used as starting points in an instrumental argumentation in favour of democracy or social engineering Strang IV: ; Strang V: Hedenius, for example, argued that the only way one could give arguments in favour of democracy was by pointing at certain features in the democratic system that one presupposes that the audience actually likes Hedenius Similarly, for Gunnar Myrdal, the social scientist was able propose social reforms as long as they were based upon values actually present in the society in question see e.
And it was by no means a Swedish curiosity. Philosophically, the idea seems to be based on a kind of axiomatic reasoning common among many scientists and scholars during the first half of the 20th century, not least in logical empiricism Aspelin ; Strang V: In , Hedenius explicitly argued that all of our beliefs, theoretical as well as practical, must rest on some ultimate principles that have to be accepted without conclusive evidence.
The difference between science and ethics is, Hedenius continued, merely that while the theoretical principles can be true or false even if they cannot always be verified the moral principles cannot Hedenius It must also be noted that the idea that shared values is a pre- requisite for democracy was also very much present in the inter- national literature in political science.
Clearly, there is a difference between agreeing on the principles of democracy on the one hand, and a cultural or ethical conformity or harmony on the other. Tingsten 65, ; Ross Given the frequent references to this community of shared values, it is striking that the Scandinavian value nihilists seldom tried to specify the values, nor the limits of the society or culture that shared them.
Among the scholars examined in my studies it was only Myrdal who made a thorough attempt at finding a way of determining the values of a particular community or culture. For example, in their defence of democracy the value nihilists often appealed to a set of national or Nordic values, which was based, for example, on the idea of a Nordic democratic heritage. There was no logical conflict between the existentialist concept- tion of morality and the idea of shared values: even if every indivi- dual is doomed to choose his or her own moral values, there can be statistical similarities within a certain domain of people.
Still, there was undoubtedly a peculiar tension in the argumentation of the Scandinavian value nihilists between the idea of the autonomous individual and the idea that people share their basic values with one another.
A Real Mind: The Life and Work of Axel Hägerström (Law and Philosophy Library)
It was a tension between the unscientistic acceptance that there are certain things in life that lie and should remain beyond the domain of science, and the scientistic ambition that science should indeed be able to solve any problem. This tension manifested itself not least in the different ways in which the value nihilistic theory was used by Myrdal and Tingsten respectively. Myrdal used the strict division between facts and values as an argument for the necessity of revealing hidden political premises in rival social scientific and economic theories. For him, it was important not to present political views as if they were scientific truths.
He did not want to eradicate politics from social science; instead, he called for explicit value premises. Only in this way could social science become politically relevant Myrdal ; Strang V. Tingsten used the separation between facts and values in a very different way. Indeed, for Myrdal, it was the values that were important, while for Tingsten it was the facts. This shift in perspective pro- ceeds from the nominalistic idea that the meaning of a term is not given once for all, but that it is constantly contested and thus subject to struggles for changes and redefinitions.
Social Democratic Strang IV: 8. To deny that moral judgements can be true or false was to challenge the prevail- ing understanding of these terms, and as such, the value nihilistic theory served progressive political purposes. According to Hedenius and Ross, it was perfectly sensible to continue to use these legal concepts as long as one recognised that they do not refer to something divine or meta- physical, but rather to a set of human conventions and stipulations.
Strang IV: In this way the second generation of value nihilists represented a blend of social and political radicalism and traditional, even conservative, nationalism that can be said to have marked the rhetoric of Scandinavian and particularly Swedish Social Democracy in the s see e. In this connection it is interesting to note that Hedenius and Ross gave logical empiricism a different political significance than the one it had in its original Austrian context in the s and 30s.
In this situation, logical empiricism could no longer be imported and presented as a radical philosophy. Instead, when Hedenius and Ross introduced logical empiricism to the Scandinavian legal discussion, they used it as an argument against the radicalism of Uppsala philosophy Strang III.
This shows that the context to which ideas are transferred is often of greater significance than the context from which they are adopted. However, it must also be acknowledged that by this time the s , logical empiricism was itself undergoing significant trans- formations as it was dispersed around the world, particularly to the United States. The Swedish appropriation of logical empiricism can undoubtedly be said to have fallen in line with the disarmament of the political aspects of the Unity of Science programme that occurred in connection with the transfer of logical empiricism to the United States in an emerging Cold War context Howard ; Reisch ; Strang I: It is perhaps not surprising that analytic philosophy was depoliticised as it was transferred from the original context which had given rise to the political charges in the first place.
But in claiming that their own philosophical standpoint was autonomous and wholly free from any political underpinnings, rivalling philosophers were also often portrayed as politically suspicious. This was accomplished, for example, by associating them with a German intellectual tradition, preferably Hegelian idealism, i. Both Hedenius and Tingsten were active in representing German idealism as something like the ideological origin of totalitarianism, and in this task they were able to appropriate ideas from foreign philosophers and intellectuals such as Karl Popper and Friedrich Hayek see e.
Existentialism, in turn, was refuted as a psychological symptom of the crisis and war on the European continent Strang I: In fact, Hedenius explicitly claimed that if philosophy was given full freedom everywhere, the philosophical tradition to which he himself subscribed, i. This depoliticisation and professionalisation of analytic philosophy was little more than the End of Ideology thesis without a political agenda or connotation of its own.
As the other philosophies were presented as fascist or Communist, analytic philosophy emerged as the democratic alternative. In hindsight, these efforts must be conceived of as successful. But the connection between analytic philosophy, logical empiricism or Uppsala philosophy and the democratic Swedish welfare state was, of course, by no means a necessary one. See Marc-Wogau However, there are good reasons to inter- pret these publications as wartime propaganda efforts commissioned or not , rather than as spontaneous utterances of sympathy with the Nazi regime.
By labelling a scholar a representative of a particular philosophical or intellectual movement that person is reduced to an advocate of simplistic philosophical slogans or erroneously ascribed ideas and theories that he or she does not in fact support. Also among intellectual historians it is quite common to argue that scholarly labels are more likely to confuse than to bring clarity. A philoso- phical label is seen as the result of an unwarranted generalisation that blurs the ideas and theories of the historical actor and makes it utterly impossible to appreciate the originality of the individual intellectual.
Countless articles and books have been written in order to revise the received view of an intellectual as belonging to a particular school or movement, and, to be sure, on closer exami- nation almost any scholar will turn out to be something of an exception to the school that he or she is commonly regarded as a representative of. In my studies, I have tried to take these labels seriously and to examine the rhetorical struggles involved in the formation of scholarly movements.
Understandably, perhaps, the Uppsala philosophers themselves initially disapproved of the label. Palonen b: ; Pulkkinen The philosophers in Uppsala, Hedenius and Wedberg argued, did not propose any common doctrines save the call for a careful analysis of the concepts involved, and these individual philosophers could not be brushed aside by a single argument. By presenting it as a parallel movement to logical empiricism and the Cambridge School, Hedenius, Marc- Wogau and Wedberg gave domestic roots to the analytic tradition that they were establishing at the same time as they legitimised their own personal philosophical development from Uppsala philosophy to logical empiricism or analytic philosophy.
Instead they preferred terms that served as rhetorical bridges between Uppsala philosophy and logical empiricism. Summaries The five studies reprinted in this volume have not been written with the governing ambition that they would be gathered as a complete and exhaustive examination of the topic. They are intended, rather, as five separate contributions to particular discus- sions in different scholarly forums. As a consequence, they follow primarily the demands and requirements of their original contexts instead of the ones raised by the volume at hand. This means, for instance, that the studies overlap each other to some extent, and that there will inevitably be some repetition.
These problems have hopefully been amended by this introduction. The intention has been to write the studies in a manner that is accessible to anyone interested in the topic, regard- less of scholarly background, and not least, by writing most of them in English, to communicate this interesting piece of Swedish intellectual history to a larger international audience. In what follows, I will give brief summaries of the backgrounds and aims as well as the main arguments and results of the five studies.
The purpose of the book was to portray an era of great plurality in Nordic philosophy, i. My task was to give an exposition of the birth of the latter hegemony. The article makes use of conceptual history as well as a combi- nation of comparative and transfer perspectives. The structure of the article is threefold. In the first section I describe the consolidation of the analytic tradition on the international or Anglophone philoso- phical scene.
In this process the Cambridge School, the Vienna Circle and American pragmatism were canonised as the basic pillars of the analytic tradition. In the second section of the article I examine the narrative of Eino Kaila as the father of the Finnish analytic tradition. Kaila visited the Vienna Circle in and , brought logical empiricism to Finland, and provided his successors with both the theoretical means and the social contacts that enabled them to make successful careers within the analytic tradition. But Kaila was and is nevertheless conceived of as the self-evident father of the Finnish analytic school that his successors e.
In the third section of the article I argue that the construction of the Swedish analytic tradition was completed by a particular branch of Uppsala philosophers i. However, in this article I argue that this perspective is hardly less misleading than the one which pro- motes the notion of Kaila as the father of the Finnish analytical school, or the idea that logical empiricism is the basis of analytic philosophy. The analytic tradition was created in hindsight, and the theoretical ambitions of those who were canonised as the fathers of the tradition were often downplayed or redescribed in order for the tradition to emerge.
It is the comparative perspective of this article that makes it of paramount importance for my project. The comparison to Finland points out significant differences in the way that the national analytic traditions were established, for example in terms of their relationship to logical empiricism. But even more importantly, the comparison seems to indicate a common basic structure of the establishment of the analytic tradition in Finland and Sweden. This tradition was established in hindsight by a younger generation who colonised some predecessors who they chose to present themselves as followers of.
The article also contributes to the political side of my project, as Finland seems to be a case that falsifies the idea of a necessary connection between Social Democracy and logical empiricism. Theoria and logical empiricism — on the tensions between the national and international in philosophy This article on the Swedish philosophical journal Theoria and logical empiricism was written, more or less, as a commissioned work on behalf of the organisers of the symposium Networks and Trans- formations of Logical Empiricism: The Vienna Circle and the Nordic Countries in Helsinki, September The aim of the article is on the one hand to examine the role that the journal had for the logical empiricists at a time when the conditions on the European continent were rapidly deteriorating, and on the other hand to examine the appropriation and breakthrough of logical empiricism in Sweden.
The article is divided into two parts. But as it was only the logical empiricists who answered the call, the internationalisation of Theoria became intimately connected to logical empiricism. It was also often met with scepticism by the other members of the editorial board, especially by the Uppsala philosopher Konrad Marc-Wogau who argued that internationalisation should not take place at the expense of Swedish or Nordic contributions.
The second half of the article focuses more closely on the confrontations between Uppsala philosophy and logical empiricism in the pages of Theoria. While the logical empiricist Otto Neurath seemed to be interested in collaboration with the Uppsala School although on his own terms , the Uppsala philosophers remained for some time rather hostile towards logical empiricism.
In an article in , Einar Tegen attacked what he conceived of as the two basic pillars of logical empiricism, logic and empiricism Tegen , and the following year Gunnar Oxenstierna was engaged in a That is, Juha Manninen and Friedrich Stadler. Summaries 99 fierce discussion on the theory of relativity with Phillipp Frank Oxenstierna ; Frank Indeed, at this point in time, there was little that suggested that Uppsala philosophy and logical empiricism would soon merge and jointly form the Swedish analytic tradition.
In this way Hedenius succeeded in presenting analytic philosophy as a natural continuation of the Uppsala legacy. It is chiefly in the discussion and elaboration of different transfer strategies that the study on Theoria forms an essential con- tribution to my project. His journal Theoria became a leading journal of analytic philosophy in the Nordic countries, and one of the few forums for analytic philos- ophy outside of the English-speaking world. While the first generation of Scandinavian Legal Realists, i. Hedenius and Ross, was inspired by logical empiri- cism and was considerably more concerned with political continuity and democracy.
It has often been claimed that whereas the experience of Nazism prompted a revival of natural law philosophy on the European continent, the Nordic legal discourse continued its realistic-positivistic emphasis. It was partly due to this criticism that Hedenius and Ross adopted and utilised ideas and arguments from logical empiricism and the Cambridge School. Hedenius emphasised that the meaning of a statement is not some psychological state of mind, but the facts that would make the statement true.
Accordingly, he argued, a value statement could be meaningful if it referred to the actual legal system, i. This study combines cultural transfer and political perspectives. It is also important to note that even if Hedenius and Ross vehemently criticised the tenets of the first generation, they nevertheless presented their critique as if it was part of a discussion within the same scholarly comminuty. In this way they presented their ideas as an improved and updated version of Uppsala philosophy. The standard reply of the value nihilists was to emphasise the rift between science and politics.
Ingemar Hedenius, for example, did his best to present the value nihilistic theory as a purely aca- demic affair, with little or no consequences for political or cultural life in general. However, this line of argumentation gave added fuel to those critics who claimed that the value nihilists were forced into indifference with respect to the choice between democracy and totalitarianism.
The value nihilists tried to counter such arguments by stressing that their theory did not imply that morality was unimportant: Alf Ross, for example, argued that even if it could not be established as a scientific truth that democracy is better than totalitarianism, the value nihilists could nevertheless conceive of it as their highest moral duty to do whatever they can to promote democracy. According to Tingsten, totalitarian ideologies were not to be understood as sets of valuations, but as erroneous factual theories about the world, and that they, as such, could be subjected to scientific criticism.
For Hedenius, the idea of shared values was a logical consequence of the value nihilistic theory, as moral discussions are only possible if the discussants share the same basic values. For Tingsten and Ross the idea of shared values was more of a precondition for a well-functioning democracy. It was only if the individuals in a society shared the same basic values that the minority were able to accept the decisions of the majority. This study on the defences of democracy forms an important part of my thesis as it examines not only how the Uppsala philos- ophers succeeded in overcoming the associations with fascism and Nazism, but also how they succeeded in presenting analytic philos- ophy as an inherently democratic philosophy.
It was not only a matter of finding theoretical solutions that satisfied them as intel- lectuals, it was also to a considerable extent a matter of saving the reputation of the philosophical tradition that they represented. His challenge came to be to elaborate on a way in which the value nihilistic theory could be reconciled with a strong normative programme for social reform. Myrdal argued that a normative social scientific programme had to proceed from explicit value premises anchored in the society under study.
These value premises had to be explicitly accounted for in the name of scientific objectivity, i. It was especially the question of relevance that occupied Myrdal during the s and 49s. He toiled hard in order to establish a way in which the actual values of a society could be determined as an empirical fact. Arguably, however, his efforts failed. He did not succeed in developing a method to establish the actual values of a society that met his own requirements.
Eventually it seemed as if the same Enlightenment values were characteristic of practically any society that Myrdal studied the United States, Sweden or South Asia , and therefore an observer could easily be led to think that Myrdal was simply promoting his own valuations. This article forms an essential contribution to my project in its examination of the varying and sometimes paradoxical political uses and implications of the value nihilistic theory.
For Myrdal as opposed to e. According to the Realist indeterminacy thesis, legal reasons do not justify a unique decision, meaning that the foundationalist enterprise of theory of adjudication is impossible. It also lies within the field of behavioristic psychology. Moreover, it does so for essentially Quinean reasons: because the foundational account of adjudication is a failure—a consequence of accepting the Realists' famous claim that the law is indeterminate.
Both objections seem mistaken: Dworkin, for example, is committed to the rational determinacy of law in exactly the sense at issue for the Replacement argument. The targets of the Legal Realist critique were, equally, committed to the rational determinacy of law; indeed, it would be impossible to make sense of what the Realists were doing if that were not so. One may worry, again, about whether there is an interesting or fruitful normative story to be told rather than a merely banal descriptive sociology , but it suffices for the analogy with Quine that there remains some substantial domain of cases where the foundational program can not be carried out, so that the case for replacement remains intact.
The real difficulty, of course, pertains not to these historical points, but to whether or not the project of a normative theory of adjudication warrants replacement just because rational determinacy does not obtain. As in the Quinean case, the Replacement Naturalist must maintain that without rational determinacy, normative theories of adjudication are banal, mere excercises in descriptive sociology. Critics of Replacement Naturalism contest this conclusion, though more by way of affirmation than argument Coleman , p.
However, if the objection under consideration were correct, then a normative theory that specifies what the anti-foundationalist concedes—namely, that there is more than one though not simply any judicial decision that can be justified on the basis of the class of legal reasons—must, in some measure, be a theory worth having. Arguably, such a theory might be adequate to deflect the challenge to the political legitimacy of adjudication based on the indeterminacy of law, but does it provide the normative guidance to judges we want from a theory? Does a theory that tells judges they would be justified on the basis of the class of legal reasons in deciding for the plaintiff on theory X or the defendant on theory Y but not the plaintiff or defendant on theory Z!
The Replacement Naturalist answers in the negative: better to have a descriptive account of inputs and outputs, one that would license prediction of judicial behavior, than an indeterminate normative theory. This response, of course, makes Replacement Naturalism vulnerable to conflicting intuitions about the fruitfulness or sterility of different kinds of theorizing. There are other limits to the Quinean analogy Leiter a, pp. First, the American Legal Realists end up presupposing a theory of the concept of legality in framing their arguments for law's indeterminacy Leiter ; Leiter a, pp.
The analogy with naturalized epistemology, in other words, must be localized to the theory of adjudication, and not the whole of jurisprudence. But as it stands, the analogy to Quine's attack on foundationalist epistemology warrants no radical abandonment of traditional conceptual analysis across the boards. A second difference from Quine is also important: for the crux of the Legal Realist position at least for the majority of Realists is that non-legal reasons e.
They, of course, explain the decisions by justifying them, though not necessarily by justifying a unique outcome i. Now clearly the descriptive story about the non-legal reasons is not going to be part of a non-mentalistic naturalization of the theory of adjudication: a causal explanation of decisions in terms of reasons even non-legal reasons does require taking the normative force of the reasons qua reasons seriously.
The behaviorism of Quine or Underhill Moore is not in the offing here, but surely this is to be preferred: behaviorism failed as a foundation for empirical social science, while social-scientific theories employing mentalistic categories have flourished.
Moreover, if the non-legal reasons are themselves indeterminate—i. Like the traditional epistemologist, the Normative Naturalist embraces as his goal the promulgation of norms by which to regulate our epistemic practices to govern how we should acquire and weigh evidence, as well as, ultimately, form beliefs.
Unlike the non-naturalist, however, the Normative Naturalist does not think epistemic norms can be adequately formulated from the armchair: normative theorizing must be continuous with scientific theorizing. But if this is not just to collapse into Replacement Naturalism then what does the M-naturalist credo amount to in the normative case? The Normative Naturalist maintains that the reason the philosopher can't do armchair epistemology is because it is an a posteriori , empirical matter what norms in fact serve our epistemic or cognitive goals e.
Goldman emphasizes a particularly important instance of this general point:. So the Normative Naturalist thinks that normative epistemology must be continuous with natural and social science in at least two senses: i we need to know what epistemic norms in fact lead to our forming true beliefs; and ii as a special case of i , we need to identify epistemic norms actually usable by creatures like us.
This rules out certain non-naturalistic epistemic norms which require of cognizers belief-formation practices beyond their ken Goldman , pp. The Normative Naturalist, in short, emphasizes the instrumental character of normative theorizing in epistemology, and then argues that the only way to assess instrumental claims is empirically—to see what means really brings about what ends. Of course, it bears noting that the Normative Naturalist does not dispense entirely with conceptual analysis—to the contrary. Unlike the Quinean program, naturalization enters for the Normativist only, as it were, in applied epistemology.
The Normative Naturalist in jurisprudence, too, views theoretical questions instrumentally. Normative naturalism is, in this respect, veritistic to borrow Goldman's term : it is concerned with the production of knowledge, meaning in part true belief Goldman , pp. So the Normative Naturalist embraces as his goal the promulgation of norms by which to regulate our epistemic practices so that they yield knowledge. In the case of individual epistemology, this means the norms governing how individuals should acquire and weigh evidence as well as, ultimately, form beliefs; in the case of social epistemology, this means the norms governing the social mechanisms and practices that inculcate belief.
The legal rules of evidence, in turn, are a prime case of the latter: for these rules structure the epistemic process by which jurors arrive at beliefs about disputed matters of fact at trials. As such, the rules of evidence are a natural candidate for investigation by Normative Naturalists. We may ask of any particular rule: does it increase the likelihood that jurors will reach true beliefs about disputed matters of fact? Of course, it does not make sense to ask that of every rule, since some rules of evidence—for example, Federal Rules of Evidence FRE —are not meant to facilitate the discovery of truth, but to carry out various policy objectives like reducing accidents and avoiding litigation.
That means, of course, asking an essentially empirical question: does this rule of inclusion or exclusion in fact increase the likelihood that fact finders, given what they are actually like, will achieve knowledge about disputed matters of fact i. Of course, many rules that on their face invite one kind of veritistic analysis require a very different kind in practice.
So, for example, FRE , on its face , excludes character evidence in most contexts, though, in fact, the exception in b largely swallows the rule. Thus, while it might seem that we should ask whether excluding character evidence maximizes veritistic value, the real question is whether admitting it does. The same may be said for the hearsay rule.
A Real Mind The Life And Work Of Axel Hagerstrom
Although on its face, the hearsay doctrine is a rule of exclusion, in reality it is a rule of admission: what the advocate must really know is how to get the proferred hearsay admitted under one of the multitude of exceptions to the nominal rule of exclusion FRE Thus, the pertinent veritistic question concerns the veritistic credentials of the grounds on which hearsay is admitted, rather than the veritistic reasons for excluding it in most cases. Such questions, in fact, are already a staple of much evidence scholarship. In theory of adjudication, by contrast, the Normative Naturalist wants to identify norms for adjudication that will help judges realize adjudicative goals.
Dworkin's theory of ajudication Dworkin makes a popular target for the Normative Naturalist. Dworkin's theory says, very roughly, that a judge should decide a case in such a way that it coheres with the principle that explains some significant portion of the prior institutional history and provides the best justification for that history as a matter of political morality. Can a Normative Naturalist be a Dworkinian? What, then, is the relevant goal in adjudication? One candidate is surely this: we want to give judges normative advice that will lead them to reach fair or just outcomes.
Thus, the naturalist's question becomes: which piece of normative advice is most effective in really helping actual judges realize justice and fairness? It is, at least, an open question whether Dworkin's methodology will be effective in leading judges to do fair things. The fact that his normative theory has had almost no impact whatsoever on American judicial practice over the last thirty years is at least defeasible evidence that it does not appear to be an effective methodology let alone one effective for realizing justice! Leiter , p. This latter point is related to the naturalist's second, and more important objection.
This is a familiar complaint about Dworkin's theory, but naturalized jurisprudence gives it a principled foundation. The naturalist wants normative advice effective for creatures like us; demanding of judges Herculean philosophical ingenuity violates this constraint. Aspiration, the naturalist concludes, is not a fit aim of normative advice, which must, first and foremost, offer effective means to ends. The S-naturalism of the Scandinavian Realists is, today, more a museum piece than a live contender in jurisprudential debate. This is unsurprising in light of its dependence, especially in the work of Ross, on the semantic doctrines of logical positivism and cognate developments, like emotivism in ethics.
Their allegiance to emotivism and non-cognitivism more generally in ethics led the Scandinavian Realists to conclude that normative statements at least in morality and law—like the emotivists, they simply ignored the question about the status of epistemic norms had to have a naturalistically respectable reduction if they were to have truth values. For Ross , Ch.
In an influential essay reviewing Ross , H. Hart famously demolished this analysis. This critique, expanded upon in Chapter 7 of Hart , did much to consign Scandinavian Realism to the history of ideas, though it, unfairly, had the same impact on American Legal Realism, which was not, in fact, committed to this semantic analysis on the latter point, see Leiter a, esp.