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Jurisprudence of Liberty
LAW AS A KNOWLEDGE PROCESS2011 •
Lawyers, like most people trust the evidence of their senses and believe that objective knowledge is possible in the discovery of law and the facts in dispute. It is in the nature of legal practice that the relevant facts in particular cases and the applicable law are often disputed. But in a law governed society, lawyers and litigants accept the authority of judicial determinations even if they disagree with the reasoning. This is a fundamental condition of the rule of law. Some versions of postmodern critical theory challenge these premises and claim that objective knowledge is impossible whether in law, science or other field of inquiry. Knowledge they claim is a matter of personal taste, convention, or the dictates of prevailing epistemic authorities. Hence, they deny the possibility of the rule of law. Postmodernists have revived a debate that dates back at least to the ancient quarrels between Plato and the Sophists. In this paper, I concede that perfect knowledge is beyond human capacity but argue in the tradition of David Hume, Karl Popper, D T Campbell and other philosophers of science and evolutionary epistemology, that human progress is based on hypothetical knowledge open to criticism and revision. The argument recentres the inquiry from the futile quest for the foundation of knowledge to process of the growth of knowledge by trial and error common to all species. In the final section I present the thesis that law in the sense of rules of conduct open to debate and revision is an essential part of the process by which knowledge grows and human communities adapt to the challenges of an everchanging world.
2007 •
The paper gives an a priori argument for the view that knowledge is unanalysable. To establish this conclusion I argue that warrant, i.e. the property, whatever precisely it is, which makes the difference between knowledge and mere true belief, entails both truth and belief and thus does not exist as a property distinct from knowledge: all and only knowledge can turn a true belief into knowledge. The paper concludes that the project of trying to find a condition distinct from knowledge that is necessary and together with truth and belief sufficient for knowledge must be doomed to failure.
International Journal for the Semiotics of Law
Rationality and scepticism in judicial proof: Some signposts1989 •
KNOW: A Journal on the Formation of Knowledge
The History of Knowledge and the Future History of IgnoranceAfter attending lectures on induction by C.S. Peirce in 1866 and reading J.S. Mill’s System of Logic, O.W. Holmes Jr. echoed Mill’s critique of the syllogism and his notion of “reasoning from particulars to particulars.” But he added an element of the emergence of generals from particular judgments, in the social context of legal disputes. Here, the bearing of particular to general is one of consensual emergence, integration from repeated experience into a developing system of classification. This reflects the vision of the British scientist William Whewell, of the growth of knowledge through the tension between facts and ideas. Legal and scientific knowledge may be viewed as forms of community inquiry, focusing on the primacy of cases and exemplars in the process of intersubjective classification, and the role of concepts and theories in guiding the conduct of professional inquirers, framing and maintaining the coherence of expert and general belief.
1980 •
UC Irvine Law Review 5 (2015): 413–62
History, Law, and Justice: Empirical Method and Conceptual Confusion in the History of Law2015 •
This Article draws on Wittgenstein’s Philosophical Investigations, Ulpian’s definition of law, and Aristotle’s definition of the polis in order to improve our understanding of the relationship between history, law, and justice. It makes three points. First, real progress can be made by taking one’s instruction from Wittgenstein’s lifelong attempt to banish meaninglessness from thought and speech. He has far more to offer than has been recognized to date. Second, historians of law deceive themselves if they believe that they can write the history of law without writing the history of justice at one and the same time. Law and justice are thoroughly intertwined. Their intertwinement constitutes their meaning. Treating one of them in isolation from the other impairs the meaning of both. Third, writing the history of law means making a commitment to a political community by settling disagreements with the dead. It furnishes a kind of knowledge that is essential for maintaining justice because it gives a meaning to “law,” “justice,” and “politics” without which law, justice, and politics fall to the judgment of the dead or that of arbitrary rulers. It does not consist of writing about justice, but of making judgments in writing about the history of law. It is neither to be confused with expressions of opinion nor with statements ofpure fact: not expressions ofopinion, because it requires statements offact; not statements of pure fact, because there are no facts to state without agreement in the judgments that make a political community.
Shimla Law Review
Episteme of Justice: A Genealogy of Rationality2019 •
Justice has been a desired ideal for every civilisation. Even much before the invention of printing press, justice attracted all too discursive idealisations. In every epoch, justice is discursively crafted and understood. In that sense, theories of justice are produced within the limitations and conditions of episteme, accepted in the particular society, under a few sets of discursive rules. From Greek pre-determinism to the spirit of European enlightenment, the industrial age to the digital age, theories and common understandings of the discourse were formulated and rationalized around a few epistemic principles. In Greco-Roman cultures, for example, pre-determinism and teleological ‘rationality’ were the preconditions for the discourse of justice. In Scholastic tradition, teleology remains in the form of theology. During the course of Renaissance and afterwards, the spirit of scepticism and inductive reasoning turned out to be the defining features in the establishment of new science as authority; in that epoch, power and knowledge were embraced and celebrated as the episteme to rewrite the relationship between human and nature. In the process of Industrial revolution, instrumental reasoning produced a widespread culture of ‘consumer society’, and a bureaucratized and rationalized art of government. To address the growing demands for the security of the businesses and the predictability of the outcome, the rationalized systems of law were developed across the Europe. In a post human trajectory, technological rationality has become a source of truth and justice.
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Berichte zur Wissenschaftsgeschichte / History of Science and Humanities
The History of Knowledge and the Future of Knowledge Societies2019 •
2005 •
Anglo-American Law Review
‘Superior Knowledge or Revelation’: An Approach to Modern Legal History1989 •
Advances in Experimental Epistemology
Is Justification Necessary for Knowledge? co -authored with James BeebeNordic Journal of Educational History
Review (English): Johan Östling, David Larsson Heidenblad and Anna Nilsson Hammar (eds.), Forms of Knowledge: Developing the History of KnowledgeAccounting, Economics, and Law: A Convivium
The Laws of Knowledge, Knowledge of Laws2012 •
The Knowledge Argument, Classic Philosophical Arguments Series (Cambridge University Press)
Introduction to The Knowledge Argument (ed. Sam Coleman)2019 •
Ohio Northern University Law Review
The Use of Knowledge and Moral Imagination in the Common Law2019 •
ESTUDIOS DE DERECHO PROBATORIO
THE FOUNDATIONS OF TRUE KNOWLEDGE IN CIVIL LAW TRADITION: A PHILOSOPHICAL AND LEGAL STUDY - Book chapter traduction2020 •
University of Toronto Quarterly
The Origins of Justice: The Evolution of Morality, Human Rights, and Law (review)2004 •
2019 •
2019 •