Eric Voegelin and the Natural Law Tradition

Eric Voegelin’s criticism of Hans Kelsen’s legal positivism places him closer to the natural law tradition than to other legal traditions. This proximity could be interpreted as a defense of the contemporary relevance, or as an attempt to revive the natural law tradition in the twentieth century. However, Voegelin always avoids using the traditional terminology of natural law in his mature works, and expresses a certain ambiguity regarding its contemporary revival. To understand this problem, this article investigates the evolution of Voegelin's understanding of natural law and his criticism of different natural law traditions from Cicero to John Locke, especially his positive evaluation of Aristotle’s and Thomas Aquinas’s interpretations. Furthermore, it seeks to illuminate his position on the contemporary relevance of this topic, as well as to assess some of the recent interpretations that consider Voegelin as a natural law thinker.     

Missing links: W. V. Quine, the making of ‘Two Dogmas’, and the analytic roots of post-analytic philosophy

This essay argues that post-analytic philosophy finds its origins not only in an invented tradition—that of ‘analytic philosophy’—but also in an invented dilemma: namely, the response to the allegedly overweening dominance of ‘positivism’ in American philosophy. I begin by surveying the problems with the folk wisdom about positivism and analytic philosophy. This pervasive narrative locates the emergence of post-analytic philosophy after a period of hegemony for logical positivism and cognate philosophical subfields. Taking seriously evidence indicating a distinct overlap in the construction of the analytic and post-analytic traditions, I return to the founding moment of American analytic philosophy in the years immediately following World War II. What we see, I suggest, is not a reaction against a clearly defined and powerful logical positivist mainstream, but the careful, piecewise co-ordination of what would become characteristic ‘analytic’ modes of argument, problematics, and tool kits. Willard Van Orman Quine played a central role in this process, and for this reason I focus on the circumstances in which his field-defining 1951 article, ‘Two Dogmas of Empiricism’ was written and received. I conclude with the claim that both analytic and post-analytic philosophers relied on a peculiar image of the failure of logical positivism, and of the opportunities that failure presented.     

Contests about Natural Law in Early Enlightenment Copenhagen

This article discusses the works of the first two lecturers on natural law in Copenhagen, Henrik Weghorst and Christian Reitzer. Contrary to the existing scholarship which characterises their works as derivative of either Grotius or Pufendorf, the article argues that the character and significance of these works can only be grasped when understood in light of the local intellectual traditions which they built upon. Seen against this background, it becomes clear that Weghorst and Reitzer developed significantly different theories of natural law, disagreeing on such fundamental issues as the definition of law, the moral good, and the role of sociality in natural law. Following a tradition of Christian natural law in Kiel, Weghorst developed a theory of natural law fundamentally critical of the secularising theories of Grotius and Pufendorf, while Reitzer followed Pufendorf and his disciple Christian Thomasius in Halle. The article concludes by indicating how Weghorst’s and Reitzer’s works established the framework for discussions of natural law in the first decades of the eighteenth century, suggesting the need for further research into the significance of natural law for the early enlightenment in Denmark–Norway.     

Political economy and social legislation in Germany,ca 1870–1890

Summary

This article examines the nature of academic political theory in Britain in the post-war period, examining in particular the degree to which theorists were able to mount normative theoretical arguments. Traditionally, commentators such as Brian Barry and Perry Anderson have argued that political theory in this period was largely dead between 1945 and 1970 due to the impact of positivism, but I argue this is mistaken for two main reasons. First, it fails to distinguish between the different forms that positivism took in the post-war era. Thus although it is true many theorists tended to claim that moral and political values could (or should) not be discussed rationally, their reasons for doing so varied considerably. For while theorists such as A. J. Ayer and T. D. Weldon justified their positions theoretically, with arguments drawn from behaviourist social science or innovations made in linguistic philosophy, others, such as Ralf Dahrendorf and Anthony Crosland, argued that it was the perceived success of post-war welfare states or the alleged failure of political ideologies that made traditional political theory irrelevant. Second, following on from this, I argue that delineating more accurately how positivism actually operated helps to explain how political theorists were able to pursue their discipline normatively—albeit that few reacted to all aspects of positivism. Thus if some (such as Karl Popper) were more concerned to insist that political philosophy had something to say in practice, others (such as Michael Oakeshott), reacted more strongly against the proposition that human behaviour can be understood purely causally. Finally, I examine the impact of ordinary language philosophy on post-war political theory, and argue that rather than simply damaging the cause of normative political theory by encouraging a myopic concentration on the linguistic analysis of particular moral and political concepts, over the longer term its effects were much more positive, since it helped to focus attention on the irreducibly normative dimension of political concepts.     

The Future of the Philosophy of Historiography

This article argues that the perception of decline among philosophers of history reflects the diffused weak academic status of the discipline, as distinct from the booming research activity and demand for philosophy of history that keeps pace with the growth rate of publications in the philosophies of science and law. This growth is justified and rational because the basic problems of the philosophy of history, concerning the nature of historiographical knowledge and the metaphysical assumptions of historiography, have maintained their relevance. Substantive philosophy of history has an assured popularity but is not likely to win intellectual respectability because of its epistemic weaknesses. I suggest focusing on problems that a study of historiography can help to understand and even solve, as distinct from problems that cannot be decided by an examination of historiography, such as the logical structure of explanation (logical positivism)and the relation between language and reality (post‐structuralism). In particular, following Quine's naturalized epistemology, I suggest placing the relation between evidence and historiography at the center of the philosophy of historiography. Inspired by the philosophy of law, I suggest there are three possible relations between input (evidence)and output in historiography: determinism, indeterminism, and underdeterminism. An empirical examination of historiographical agreement, disagreement, and failure to communicate may indicate which relation holds at which parts of historiography. The historiographical community seeks consensus, but some areas are subject to disagreements and absence of communication; these are associated with historiographical schools that interpret conflicting models of history differently to fit their evidence. The reasons for this underdetermination of historiography by evidence needs to be investigated further.     

TEACHING OLD DOGS NEW TRICKS: FOUR MOTIFS OF LEGAL CHANGE FROM EARLY MODERN EUROPE

In the past millennium, there have been thousands of polities in Europe and millions of laws. This article contributes to efforts by historians and sociologists to make some sense of this sprawl by constructing common types of law and legal change. Such types constitute distinctive patterns by which historical actors change names, ideas, and applications of rules of law under various circumstances. Three classic forms of change, namely legislation, mutation of custom, and judge‐made law, were described by Max Weber. To Weber's model I add four new types or motifs of change, which I dub legal deeds, voice‐supersession, legal fictions, and anthropological expansion. The major advance of the four motifs is that they each combine what could be called a semantic and a social view of legal change. That is, they take seriously the fact that law is often bound in a self‐conscious tradition of thought and practice. But each motif of change is also characterized by a typified social configuration of legal operators and legal subjects, who apply competing ideas to one another in distinctive ways. The paradigm of law in which the four motifs are embedded is evolutionary, pluralist, and liberal in that it posits creative social organization by multiple, independent, interacting individuals in society, weaving cumulative, complex orders. This theory makes several significant scholarly interventions. First, it attempts to reconcile outstanding semantic and social theories of legal change. Second, it historicizes legal pluralism while giving evolutionary theory a healthy dose of contingency. Third, the four motifs should also be serviceable to intellectual historians as tools for describing how historical actors interact with traditions generally. Tradition need not be viewed as conservative or even overwhelmingly static. This paradigm may help historians and social scientists assess how the force of the status quo balances against the power of individuals to innovate.     

China,Natural Resources,Sovereignty and International Law

Abstract

This article explores China’s attitudes towards the regulation of key natural resources by international law, domestically and at the trans-boundary and international levels. It considers the impact of international law on China’s own practices, and the contribution of China towards shaping international law. The article suggests that popular conceptions of a relatively isolated, sovereign absolutist China do not accord with contemporary legal realities, including in its dealings with natural resources. While China’s construction of strong sovereignty shapes its attitudes towards legal regulation, practice also suggests that China adopts a nuanced approach which includes legal compromise, and a commitment to multilateral regulation or bilateral diplomatic settlement of issues previously within the competence of national governments. China is often an active and constructive participant in contemporary law-making, even if – like all countries – it also seeks to instrumentally use international law.     

The Moral Theologian,Oliver O'Donovan and International Law

Abstract

Oliver O'Donovan renders a singular contribution to the theory and history of international law by identifying the spiritual impoverishment of the discipline following the triumph of state-centred contractarianism in the theory of international relations, with Hobbes, Locke, Kant and, for the present, John Rawls. This contractarian approach to international society has an inherent tendency, which O'Donovan highlights, to ground international order in the hegemonic claim of one or two countries to represent the values of the whole of humanity. With a combination of rational moral theology and biblical interpretation (Revelation), O'Donovan reasserts an international order grounded in the autonomous identities of the nations, which God has recognized as equal. With a theory of political legitimacy which rests upon representation of national identity, O'Donovan points the way to an international order based upon mutual respect among nations under natural law, in the classical medieval sense finally represented by Grotius and Suarez. This article describes again what the natural law tradition meant in the hands of Aquinas and Vitoria, in order to highlight the fact that the ontological dimension of natural law theory provides a way to meet the intolerable insecurities which theories of nationalism appear to generate. Then the article goes on to offer one way to bring natural law thinking up to date for contemporary audiences by drawing upon Paul Ricoeur's phenomenological theory of mutual recognition and respect among the nations as a way of going beyond the contractarian tradition in contemporary international law and relations theory.     

Law,Principle, and the Theologico-Political History of Sovereignty

Abstract

This article takes it cue from the debate between Carl Schmitt and Erik Peterson regarding the possibility of political theology within Christianity, and in response, offers a conceptual-historical portrait of sovereignty and its juridical dimensions. Beginning with the introduction of Roman law into the medieval Church, the article traces the logic of “legal principle” as the basis of sovereign decision and how the form of legal distinctions adopted into canon law translate the Romanitas of law into the theory of papal sovereignty. By the Romanitas of law, that is to say the principle of sovereignty in law. The article then seeks to describe the conceptual translations of Roman politics and Stoic metaphysics into theological form and the logic of this translation into medieval natural law. The article concludes by evaluating how the civic theology of Rome is conceptually inherited by the politics and legal framework of sovereignty and returns to Peterson’s critique of Schmitt, arguing that political theology can be understood as a dynamic where politics is theologized, assuming that in the history of religion, theology and politics are never fully distinct to begin with.     

Leibniz,Locke, and the Early Modern Controversy over Legal Maxims

This article investigates the context of a side line in Leibniz's critique of Locke on maxims. In an enigmatic and little-explored remark, Leibniz objects that Locke has overlooked some legal maxims that fulfil the function of ‘constituting the law’. I propose to read this remark against the background of the divergence between conceptions of legal maxims in the common law tradition and conceptions of legal maxims in the Roman law tradition. In a few remarks, Locke seems to echo the common law emphasis on customs and conventions expressed by legal maxims. According to such a conception, reason would mainly fulfil the function of subsuming particular norms under more general conventional norms. By contrast, Leibniz uses the Roman law idea that some ‘rules of law’ express demands of natural reason and, thereby, express principles constitutive of natural law. This is why he proposes to reform vague and confused ‘brocards’ used by jurists in order to identify sound maxims that provide a natural-law foundation for legal institutions.     

A Father's Perspective on Bridewealth in the Making of the Transnational Papua New Guinean Household

That people value ‘people’ over ‘things’ is argued often by anthropologists, but how people value specific forms and qualities of relations as they do in the example of bridewealth is less so. I explore the perspective of Papua New Guinean-born fathers in Australia as they advocate innovations in bridewealth traditions and thereby enable daughters to marry for love, cultivate a companionate marriage, and create a Papua New Guinean household. Past generations gauged the worth of traditional bridewealth by the quantity and distribution of items given and the number of exogamous clan connections forged as an index of past and future relations between clans. The current generation judges the value of even alternate forms of bridewealth for making new possibilities for those who share in it. If bridewealth enables the transnational household to emerge as the unit of decision making that replaces the clan, then innovations in bridewealth support, rather than undermine, a new normativity of companionate marriage that empowers that much wider net of kin. Drawing on a theory of value as the importance of social action towards the goal of the new normativity of the transnational household, I show how choosing a spouse is cultivated by women's fathers who refuse bridewealth, as often as it is by their husbands who provide new forms of wealth at marriage.     

Où va la philosophie de la psychiatrie ?Where is going philosophy of psychiatry ?Wohin Geht Die Philosophie Der Psychiatrie ?

This contribution provides a critical outline of the current trends in the field of “philosophy of psychiatry” by following their developments in the last decade. The first part of the paper focuses on the evolution of this field from a strictly conceptual approach to a perspective more attentive to the social, practical, and clinical dimension of psychiatry. The second part of the paper points out that the need of a mutual commitment of philosophy and psychiatry is perceived according to different ways by the countries involved in this research area. The paper deals especially with the case of France, where the enthusiasm for the “new philosophy of psychiatry” has not had the same impact on the philosophical scene as in the English speaking countries. In conclusion, the paper shows that the field of philosophy of psychiatry stands as a fertile ground for new forms of interaction between the analytic, and the continental philosophical traditions. This interaction takes place, more particularly, as regards such topics as normativity, language, and interpretation.     

关于中国旅游基本法几个关键问题的思考

本文讨论了旅游基本法在各国旅游发展中的作用,分析了中国旅游基本法制定工作中存在的主要问题及其根源,提出旅游学基础理论、法学基础理论和哲学核心理论应作为指导中国旅游基本法立法工作的三大理论支柱。本文提出,中国旅游基本法应坚持五项基本立法原则,即：遵循旅游发展客观规律原则、人本主义原则、有效保护旅游各主体合法权益原则、国家对旅游资源永久主权原则、与国际通行做法保持一致原则。最后,作者就中国旅游基本法的框架结构和主要内容等提出了自己的观点。     

The invention of human nature: the intention and reception of Pufendorf’s entia moralia doctrine

In treating human nature as a ‘moral entity’, imposed by God for reasons into which man could have no direct insight, Samuel Pufendorf reconfigured the architecture of natural law thought in a fundamental way. For this meant that rather than deducing norms from a nature in which they had been embedded by God and could be discerned by self-reflective reason, man had to derive them by observing the requirements of the exigent condition in which he happened to find himself; and it further meant that such observation would be gathered via erudite citation of humanist authorities, rather than from philosophical reflection or introspection. As a result of this reconstruction, Pufendorfian natural law was opened to the normative structure of historically existing juridical-constitutional orders, for which it supplied both a propaedeutic and an abstract rationale. At the same time, however, theological and philosophical forms of natural law, based on normative moral anthropologies, continued unabated, this giving rise to a partitioning of the field into an introspective philosophy of law, and an observational legal humanism.     

The Psychological Basis of Historical Explanation: Reenactment, Simulation, and the Fusion of Horizons

In this article I will challenge a received orthodoxy in the philosophy of social science by showing that Collingwood was right in insisting that reenactment is epistemically central for historical explanations of individual agency. Situating Collingwood within the context of the debate between simulation theory and what has come to be called "theory theory" in contemporary philosophy of mind and psychology, I will develop two systematic arguments that attempt to show the essential importance of reenactment for our understanding of rational agency. I will furthermore show that Gadamer's influential critique of the reenactment model distinguishes insufficiently between the interpretation of certain types of texts and the explanation of individual actions. In providing an account of individual agency, we are committed to a realistic understanding of our ordinary scheme of action-explanations and have thus to recognize the centrality of reenactment. Nevertheless, Collingwood's emphasis on reenactment is certainly one-sided. I will demonstrate its limitations even for accounting for individual agency, and show how it has to be supplemented by various theoretical considerations, by analyzing the different explanatory strategies that Christopher Browning and Daniel Goldhagen use to explain the behavior of the ordinary men in Reserve Battalion 101 during World War II.     

Reading Comte across the Atlantic: Intellectual Exchanges between France and Brazil and the Question of Slavery

Summary

This article looks at a specific case of intellectual exchange by approaching Luís Pereira Barreto (1840–1923), a Brazilian medic who, having studied in Brussels in the 1850s, came into contact with Comte's positivism and with the ideas of his disciples. While in Europe, Barreto established a long-lasting friendship with Pierre Lafitte, and became a convert to Comte's Religion of Humanity. Upon his return to Brazil in 1864, Barreto sought to apply Comte's principles to Brazilian society and politics. Although Barreto's use of positivism extends beyond the issue of slavery and slave work, I will focus on this priest of humanity's considerations about positivism, social evolutionism, and Brazilian slavery. This will allow me to extrapolate some qualified conclusions about the nature of the intellectual exchange that occurred between Barreto and the French positivists, and the development of Brazilian positivism as a political philosophy and social theory which had to address the problem of slavery in the 1870s and 1880s.     

Samuel Taylor Coleridge on ideas actualized in history

ABSTRACT

Situating Samuel Taylor Coleridge’s thought on historically actualized ideas with reference to a range of classical thinkers, this article examines his intriguing philosophical theory about how ideas become progressively actualized in history. This cultural growth can be understood as contemplation-in-action, although it occurs through mainly fumbling – or else overenthusiastic – human agents. I distinguish Coleridgean first-order, transcendent ideas (such as God, infinity, the good, the soul) from second-order, historical ones (such as church, state, the constitution). It has been argued that Coleridge’s theory of ideas develops from Bacon’s inductive method for discovering laws of nature through experiment and natural law through common law. I further claim that Coleridge upholds the reality of “Forms” in science, and of rights in ethics and politics; that his later political thought is inherently more progressive than is generally admitted; and that his account differs from Schelling’s and Hegel’s respective theories by maintaining the transcendence of ideas above the immanence of their evolving historical actualizations. Coleridge’s philosophy is therefore, whether political or metaphysical, ultimately an ontological defence of the transcendence of ideas above the immanence of their progressive but imperfect actualization.     

Indigenous Legal Principles: A Reparation Path for Canada’s Cultural Genocide

ABSTRACT

This article argues that Canada’s justice system and the lawyers that operate within it are ill prepared to comprehend or reconcile the relationship between colonial legal systems and indigenous systems of law. They do not get training in indigenous law, so vital to crafting appropriate reparations for the wrongs justified by colonial practices and prejudices, and that could open doors to reconciliation and healing. The example used in this article to illustrate how the two systems of law could successfully interact is the historic Indian Residential School Settlement – the largest settlement in Canadian history, almost entirely based on Indigenous law and legal theory, and harmonized in part with principles of the common law of tort. The Indian Residential School Settlement proves that in post-colonial societies western frameworks lack the tools necessary to remediate injuries motivated by systemic discrimination, which, in this case, was cultural genocide. Different perspectives and legal theories are necessary to craft appropriate reparations and the processes used to achieve them. Unless indigenous laws, traditions, and practices are central to the design and implementation of reparations, state responses to the cultural genocide perpetrated against indigenous peoples in Canada will not open pathways to either healing or reconciliation.     

Normativity and Instrumentalism in David Lewis’ Convention

David Lewis presented Convention as an alternative to the conventionalism characteristic of early-twentieth-century analytic philosophy. Rudolf Carnap is well known for suggesting the arbitrariness of any particular linguistic convention for engaging in scientific inquiry. Analytic truths are self-consistent, and are not checked against empirical facts to ascertain their veracity. In keeping with the logical positivists before him, Lewis concludes that linguistic communication is conventional. However, despite his firm allegiance to conventions underlying not just languages but also social customs, he pioneered the view that convening need not require any active agreement to participate. Lewis proposed that conventions arise from “an exchange of manifestations of a propensity to conform to a regularity” (87–8).In reasserting the conventional quality of languages and other practices resting on mutual expectations, Lewis comfortably works within the analytic tradition. Yet he also deviates from his predecessors because his conventionalist approach is comprehensively grounded in instrumentalism. Lewis adopts an extension of David Hume's desire-belief psychology articulated in rational choice theory. He develops his philosophy of convention relying on the highly formal mid-twentieth-century expected utility and game theories. This attempt to account for language and social customs wholly in terms of instrumental rationality has the implication of reducing normativity to preference satisfaction. Lewis’ approach continues in the trend of undermining normative political philosophy because institutions and practices arise spontaneously, without the deliberate involvement of agents. Perhaps Lewis’ Convention is best seen as a resurgent form of analytic philosophy, characterized by “a style of argument, hostility to [ambitious] metaphysics, focus on language, and the dominance of logic and formalization” that solves the dilemma of “combining the analytic inheritance…with normative concerns” by reducing normativity to individuals’ preference fulfillment consistent with the axioms of rational choice.     

Redefining Men's Sexuality,Resignifying Male Bodies: The Argentine Law of Anti‐Venereal Prophylaxis, 1936

By analysing governmental, legal and medical sources, this article examines Argentina's first national law of anti‐venereal prophylaxis enacted in 1936. It argues that two aspects of the law, the abolition of legalised prostitution and the mandatory prenuptial medical exam and certificate for men, especially signalled a shift in the state's concern for men's sexuality. The essay demonstrates that this shift was based on the legal and medical recognition of men's reproductive role, its impact on the health of the family and the biological destiny of the nation, and the consideration of the male body as a carrier of venereal diseases and an agent of contagion. This interest in men's sexuality was also the result of the limits the state confronted in its attempts to target women. The law imposed new controls over men because the medical surveillance of prostitutes had proved to be a sanitary failure, and the medical examination and certificate for single women was rejected since it went against beliefs regarding female purity and virginity. This article shows how, under the influence of eugenics, the state turned to the sanitary surveillance of men to prevent venereal contagion and to assure healthy procreation by assuming a new interventionist and paternalist role as the guarantor of public health, the promoter of the hygienic family, and the entity responsible for the protection of wives and children through the control of the male body.