My practical question for this thread, is why do Anti-Metaphysics Trolls, waste their valuable on-line time, trying to defeat something that they assume to be already dead, and although perhaps a ghostly nuisance, cannot by their definition, make any difference in the Real world? Metaphysical speculators are merely harmless drudges . . . No? — Gnomon

Well, I can only speculate about a psychological answer to your question, not per se a metaphysical one. My prof. on psychology of law taught me that when you talk to someone and you ask 'why' three times shortly after each other, you will incur their irritation. The reason for that is that you have reached the level of presuppositions and assumptions which most just accept as 'clear' and for which they cannot give any further account. In my view metaphysics does just that, it interrogates what you consider the basic structures of reality. They become hard to articulate and therefore cause irritation when you force someone to.

Men objectify women -> women resent this objectification -> women take revenge on men by frustrating the sexual desires of men -> men resent this frustration -> men take revenge on women by raping them, or raping surrogates via porn. — _db

That assumes a whole lot of intentionality. I doubt such intentionality is there at all.

Sometimes, in order to commit or threaten violence against someone a perpetrator needs to first be persuaded that the victim deserves it. They are said to have "asked for it", as the saying goes, as if a violent act against another person is a kind of polite concession. The instinct for justice is so strong that the perpetrator cannot live with himself having committed such a wrong. — Cuthbert

Indeed, in criminology this is called rationalization of criminal behavior by the perpetrator

The roots of violence in the psyche of the perpetrator are thereby ignored, all attention now focussing on the victim and what she "must have done" to provoke the response. This is all neatly summed up in the expression 'victim-blaming'. — Cuthbert

What is worrying too is that this gaze tends to become internalized. Even for the person being oppressed by violence it becomes a way to sustain the illusion of control by 'blaming' your own behavior. It gives the victim an illusory restoration of control and influence. The wickedness of (sexual) violence also lays in the feelings of self doubt it provokes in the victim. It renders them powerless and self blame is a psychological mechanism to restore the illusion of control.

Sigh. Tobias this thread is a prime example. — Benkei

I do not follow threads on the Ukraine crisis written here. I go to TheInternationalrelationsforum.com or Theconflictresolutionforum or Themilitaryhardwareforum

It is a wonderful song I think. It also has nice philosophical implications. We are similar in difference and as such similarity in difference is the state of mankind. the song recognizes that. As long as we do not see the other as completely other, alien, destruction might be averted.

That should cover the rest of your comments. And Rousseau/ Christian and me are antithetical to one another. I formulate my views on data and philosophy. — Garrett Travers

I myself do not define children as loving, I said they areby nature loving, explorative, game generating, and otherwise not miserbale. An observation born out by data across multiple studies - that was a broad analysis I sent you - and one that, for the vast majority of children, only differs among those with abusive parents. Which is of course, an ethical violation for all the same reasons. — Garrett Travers

We are not that far off actually. I agree with this, I have no reason not to. Except that abusive parents are the sole cause. I was quite a depressed child with no abusing parents whatsoever. The cause for my depression had other reasons. However although they are by nature not miserable, the nature of their game can make others miserable. However, I agree, by nature they are not depressed. On the other hand what nature is, is still debatable. Children are by nature social as well and the social comes with conflicts, so by nature children would also be conflictual.

About the article, I do remark that the correlations found are very small. I do know a bit about epidemiological research and if I see correlations like these I become suspicious, but hey it is a published article so I will leave that work to the editors.

And Rousseau/ Christian and me are antithetical to one another. I formulate my views on data and philosophy. — Garrett Travers

Not at all, you are grown up and embedded in a cultural framework. You can as little disentangle yourself from it as you can from modern day technology. On the whole though I agree with your points made above and concede I could have misread your statements for normative claims.

Then you would see how such advice doesn't apply to my research-based analysis above. — Garrett Travers

It teaches me you confuse a normative analysis with a factional one, not for the first time. Your research is moreover circular. You define children as loving and when they exhibit behaviour that is not loving than that is somehow learned through emulating others. The descriptions though of positive energy allow for both good and bad behaviour.

What I do grant you is that they seem to be less depressed. But well also depression is not a normative category. The good and the wicked can both be depressed. What I do not grant you is that "they are deeply loving by nature". Or only in the trivial sense that thye do not bite the hand that feeds them. I do think by the way that love the the ontological human condition so if you mean it in that sense you might be right too.

However what I take issue with is that you seem to equate this disposition with friendliness, or goodness. If that is the case than somehow this fall from grace in later years must be explained. It can't be explained by behaviour displayed by others as also the behaviour of these others must be explained. In other words how come these originally loving creatures became corrupt in the first place. The whole story seems to play in to a rather Rousseauean / Christian narrative of the uncorrupt child. Given the small associations I suspect the researchers merely saw what they wanted to see, as you do too.

I teach them them, but thanks anyway.

edit: It is a bit fickly to add pics. I google the image than copy the link than I click on the icon with the mountain and the sun. I add the link which I achieved through right clicking 'copy image link'.

I didn't say they did, I never even implied. Look man, I'm not these mystic chumps on this website, dude. If you're going to engage with me on here, I'm going to need you to read what I say and the research I post. — Garrett Travers

Edit: Pointless.

I advice a course on critical thinking Garrett. It will do you a world of good.

Is this really a conclusion you've drawn...? C'mon man, when have you ever heard of a child killing anyone in joyous laughter? And if you to happen to find me an abberation of such nature, describe to me the details of where the child comes from, and I'll show you who the real killer is. — Garrett Travers

No, the point is that the definitions of PE does not lead to any normative conclusions such at those you draw. Yes they care for the ones that feed them, so do cats.

You understand? — Garrett Travers

I understand a great many things, but thanks for your concern. You must also have noticed that all those associations are extremely small. Graph or no graph. I doubt it would meet the criteria for good epidemiological research.

From the movie Cidade de Deus

My point is not that they are prone to depression or not, but that they are nice. I never saw a friendly child in my life or at least, very few.

In depth commentary would require me to read it in depth and waddle through the statistics, but let's take for granted that the research is conducted properly. Here is the definition: "NE is a temperament trait that refers to a tendency to experience sadness, fear, anger, and reactivity to stress, whereas PE refers to the tendency to experience joy, engagement with the environment, and sensitivity to reward."

So let's say children display PE on birth. It just proves that they are joyful 'engaged with their environment' and sensitive to reward. So yes, they relish in the sight of burning spider under a magnifying glass. It is just proves they are joyful not that they are friendly or deeply loving. That someone kills you laughing does not mean he does not kill you.

Children are happy, exploratory, game-organizing for play, and very deeply loving by nature. I've never known of any exceptions to this. — Garrett Travers

Ohh dear...

If you think there is something to agree or disagree with, then, indeed, I disagree with you... :)

There is. — Changeling

I do not see it. They recorded a large amount of brain activity in areas which are also used when dreaming or remembering. What is there to disagree with?

""If I were to jump to the philosophical realm, I would speculate that if the brain did a flashback, it would probably like to remind you of good things, rather than the bad things," he said."

This is pure speculation, nothing to agree with or disagree with either. It could be, could not be. Philosophically speaking there is no saying what you will remember. The mind does not have a 'will' of its own trying to cheer up the ding person. There is no way of saying. However people have reported near death experiences so yeah, near death experiences are corroborated by brain activity. Again nothing that I can agree or disagree with.

Sam26 Tobias agree? — Changeling

Is there something to agree or disagree with?

First of all, get well soon Pinprick.

The difference in harm in this case is due to whatever trauma was inflicted by being robbed. So the examples aren’t comparable, imo. Maybe say a hacker takes money from your account and makes it seem like it’s legitimate taxation. In this case the harm is equal, because it’s the same amount of money you’re missing, right? — Pinprick

No. The difference is in the legitimacy. The hacker steals your money and robs you.. The tax authorities tax the same amount of money as ordained by the government. The first is illegitimate, the second is because the authorities use it to fund projects for the common good and not to enricht themselves. (Of course if they do the harm is equal, but that only proves my point). What matters is the motive. It is a rebuttal of your "huh, every kind of discrimination is equal!" line. Only the most ardent anarcho capitalists and you apparently do not see the difference.

If the act were “good” then no harm would come from doing it indefinitely. — Pinprick

Hmm, do you take antibiotics when you are ill? And if you do, do you take them indefinitely? You might say 'ahh but antibiotics is not a good thing, but a necessary evil'. I would agree with you. Preferential treatment is not a good thing. but a necessary evil perhaps.

Yeah, criteria that actually makes a difference like education, skill level, competence, etc. — Pinprick

Why would that one 'actually make a difference' and the other one would not? It is all a matter of the goals you wish to attain. 'competence' may well be perspectival, bringing a dfferent perspective to the table may make the institution as a hole more competent.

Maybe the president selects a handful of candidates that are diverse and then the senate narrows it down from there? — Pinprick

Might be already how it informally takes place. I do not know how political appointment of judges actually works. We do not have it here. There might well be such procedures because the POTUS will only select a candidate acceptable to the senate majority.

Being discriminated against doesn’t only harm you if you’re part of a marginalized group. — Pinprick

It harms you more because you already have less options to begin with. That is what being marginalized means. See the point about traffic fines above.

I don’t see how it’s ethical to give an advantage to someone because of their race. Isn’t that how races became disadvantaged in the first place? White people were given advantages because they were white. — Pinprick

No. Races became disadvantaged because some people thought they were superior to others and thought up this whole classification of peoples they subjugated, based on things like skin color, facial and bodily features etc. They did not become disadvantaged because of preferential treatment policies aimed at giving everyone an equal starting position, quite the opposite actually.

a2a (not looking at all the other answers...)

edit, I see this has been provided by Jamalrob but rejected by the poster... well I was never any good at logical puzzles.

It’s equally harmful. I don’t think whoever is being discriminated against cares about the motive. That it harms them is all that matters. — Pinprick

No it is not. Say you are robbed of your money by a gang of thieves. That is harmful. Every year that same sum of money is being taxed by the state. You are losing the same amount of money. Equally harmful? Of course not. So motives matter.

Well, right, but my point is that if this preferential treatment continued indefinitely, it would be the same thing, only the roles would be reversed. Instead of 95% white males we would have 95% black females. — Pinprick

Yes, 'if'. But there is no reason for it to go on idenfinately because the motive is not superiority, but making starting positions equal. When that happens and they are more or less equal, there is no need for preferential treatment anymore. It is only harmful if you smuggle in some extra assumptions.

Equal treatment of others. IOW’s no discrimination based on things like race, sex, religion, socio-economic status, etc. — Pinprick

But on other criteria it is somehow miraculously fine? Equal treatment is a funny thing. Take traffic fines. In principles the fines are equal right? However, say millionaire has to pay a traffic fine of 100 dollars for a traffic violation. For the same traffic violation, a man or lady with two jobs who barely makes end meet has to pay 100 dollars as well. Who is more severely harmed by the apparently 'equal' traffic fines?

Then why wouldn’t the preferential treatment of black females be harmful, disadvantageous, and unfair to other races/genders? — Pinprick

Because they are a marginalized group, others aren't, see above.

The categorical imperative is to imagine what would happen if everyone acted in such a way at all times. So I’ll ask you. What would happen if everyone showed preferential treatment to black women all the time? — Pinprick

Well we would probably have a society such as ours but with black women at the helm instead of white man... If we can want this society we can also want that one. Anyway, that is not how Kant works. According to Kantian logic we have to find the root cause first as our maxim. That would likely be can we want a world in which everyone discriminates according to certain categories. And I think a point can be made that we have an imperfect duty not to discriminate and I would agree. However there might be other overriding considerations as imperfect duties are not absolute. I digress however.

Preferring one group over another doesn’t create equal opportunities. — Pinprick

Hoh! Pushing my mug of beer firmly on the table as if I made some kind of point!

Maybe, and I truly hope it does, but I wouldn’t hold my breath. — Pinprick

I also do not. I am not a big fan of preferential treatment and do not know if it works but I see no harm in it in this case and some benefits sometimes. Mind you, not all the time. Policy is very context dependent.

I agree, but the way to change this isn’t to bypass the process by selecting whichever group you prefer. There shouldn’t even be a group you prefer. — Pinprick

I agree race is a bogus concept, but even though race is a bogus concept ,it caused divisions that last well into the present day. We want that changed, but it is as it is. In certain institutions as I have argued before, it is good to have a plethora of perspectives. That might well include black women, but might also include a Muslim, a person from the working class, somebody with autism or ADHD (provided they have the qualifications).

No, it’s that I think all racial discrimination is wrong. That is what leads to “95% white male quotas.” As long as racial discrimination continues how can there ever be equality? — Pinprick

Yes that is what I mean. You think all racial discrimination is equally wrong, but it isn't. It matter what the motive for discrimination is and what the consequences are.

That is what leads to “95% white male quotas.” As long as racial discrimination continues how can there ever be equality? — Pinprick

No it doesn't lead to 95% male quotas, not if give preferential treatment to black women. I think you would agree with me no?

As long as racial discrimination continues how can there ever be equality? — Pinprick

What do you mean by equality? Equal representation? Well if that is the equality you mean we need to step up efforts of preferential treatment for all kinds of groups.

Those seem like two sides of the same coin. It isn’t like white people don’t “justify” their racism. By stating that a particular race is better to appoint to a position, for whatever reason, you imply the other races are inferior. — Pinprick

No of course not. White people justified their racism in the past by stating that other races were inferior. They did not justify it by arguments of equal representation or the need to diversify our perspectives. they could not since they thought their perspective was superior. right or wrong depend on context and argument. No preferential treatment policy makes that argument.

The preferential treatment of white males over minorities has been harmful, disadvantageous, and unfair to them, has it not? — Pinprick

Most certainly.

I guess I’m a bit Kantian at times, and this doesn’t pass the imperative test. — Pinprick

Why not? It cannot be because "discrimination is wrong" because we always ddiscriminate on all kinds of grounds. You choose for instance who you want to hire and what your grounds for it are, who you want to allow in your house and so on. For Kant what matters is the motive. No we cannot want everyone to start favoring a certain group over another in other to attain dominance for your own group. If everyone one would do that we would get a war of all against all. However if the maxim is bringing about a more equal society it can, even by your own lights, because from your post it shows equality is important to you.

We know where this road leads. — Pinprick

That is not a Kantian argument but a slippery slope fallacy.

Repeating the same acts (racial discrimination) that caused this problem in the first place doesn’t sound like a solution. — Pinprick

Maybe not, but think about it and maybe that gut feeling will prove false. And of course it must end somewhere. However do we already have a society where people with darker skin have the same opportunities as people with paler skin? No.

I've always been baffled by this view, as I think it clear that what you're taught, especially in law school, has nothing to do with the practice of law. Perhaps someone who does very well in law school may make a good law professor, or a judge's clerk, or an associate in a large firm who spends time doing research and writing memos and briefs. It may prepare you for that, but more than that? Why would it? — Ciceronianus

Agreed, that is why I used it as an example of arbitrary classifications. When I applied to law firms they asked me to submit a list of grades. I was good at making exams so I became a legal theoretician at uni ;) Though being good at law exams says nothing about being successful at writing a PhD either...

Again, I bow before your expertise in law, and if I’m ever in the market for Dutch legal advice I’ll be sure to let you know. — NOS4A2

Be sure to contact me when you are puzzled about legal theory, that is my field. Your remarks about law are silly in general, not just in the case Dutch law. Your other points are just a repetition of moves.

I completely agree. Biden explicitly stated his nominee will be a black woman, all of which is irrelevant to qualifications. — NOS4A2

why would 'qualifications' whatever they may be, be the sole criterion that is relevant?

Right. And it was wrong that they were excluded. I would also say it was racist, but the dictionary disagrees. — Pinprick

No in this case the dictionary was right because in the past the candidates have been excluded because they were held to be inferior. Men were considered superior to women, whites to blacks and (protestant) Christians to all other religions. It was not just racism, but also sexism and cultural superiority.

I think racial discrimination has to be included here. It is the mechanism through which racist beliefs are put into practice, and the actual actions are what causes harm. — Pinprick

I wonder what you intend to say with this. Maybe you think all discrimination is equal, but it isn't. It makes a difference whether you exclude someone on the basis of deeming that person inferior or whether you desire equal representation, or broaden the scope of perspectives or indeed correct for worse starting positions. Recial discrimination and profiling are real and that means less opportunities for certain people. Preferential treatment may be a way to mitigate against the prevailing cultural biases that hinder the full development of certain classes of people as opposed to others. You might think all discrimination is equal but that is not the case.

As we see in the current example, racist thoughts need not accompany racial discrimination, but that doesn’t make the act any less harmful, disadvantageous, or unfair. — Pinprick

Why would preferential treatment be harmful, disadvantageous or unfair? It depends on the goals you want to reach and the fairness, advantage and desirability of these. Let's face it every job description contains preferential treatment of some sort. For instance the idea that your grades in uni make you a better lawyer and so you get hired easier. It advantages people who score good grades on exam questions... It says nothing about all kinds of other qualities.

I see it like this: you've grouped people under superficial racial categories of which there is no scientific basis, look for the disparities between them, and use the results to position them, one on top of the other, in a hierarchy of superficial racial categories of which there is no scientific basis. That right there is the methodology that has unleashed racism upon the world. It results in assumptions about people on the basis of their complexion, in injustice, and finally, in racial supremacy and inferiority. — NOS4A2

I haven't grouped people, they are grouped by everyday social practices. There is no scientific basis for me being grouped among the category of Dutch people as well and I have to show a Dutch passport when I want to enter my country nonetheless. I am the first to agree with you that there is no scientific basis for the concept of race, but the historical categorization has present day consequences.

Redressing past wrongs and making starting positions qual is not the methodology that caused racism, thinking some races were inferior and some superior did.

We cannot in fact infer how much prejudice, discrimination, hostility, someone has faced by the mere fact of their complexion alone, for the same reason we cannot know what position they occupy in the economy, in ability, in intelligence, and so on. — NOS4A2

Of course we cannot know but we can compare candidates. We cannot know that the best lawyer will be a good supreme court judges but we think the chances are higher than with an inferior lawyer. We cannot know someone with a darker complexion had different experiences in life from a person with a light complexion, but it is likely given that people with darker complexion face discrimination and racially themes abuse more than do people with a pale complexion. Certainty is very rare to obtain, so we go about things in terms of probabilities.

While your ability to train students to give legal advice and draft documents are far superior to mine, I see no reason to abide by your authority in other aspects of law and Justice. — NOS4A2

Sure, why take a lawyer's word for issues having to do with law? Me, I never take a doctors word for things having to do with medicine, imbeciles they are! Car mechanics, what do they know about cars anyway? Physicist about physics, don't even get me started on that one! What they think they bloody know about physics fits into my pinky it does!
You are hilarious sometimes. Just remember that the blanket statements about legal work you made in this thread immediately peg you as ignorant about law, not just about drafting documents, but about how law is practiced generally.

Just another racial hierarchy upon which you place people with darker complexions on a lower rung. — NOS4A2

Why is that? Because I think people with a white skin get hired easier, are less often deemed suspects in criminal cases, get shot by police less often, I somehow place people with a darker complexion on a lower rung? No I simply think there is a lot of prejudice against people with a darker skin and that that means they have fewer chances in life and are required to prove themselves more than people with a light complexion. Those are cultural traits.

What does the spectrum of complexion have to do with culture? — NOS4A2

See my explanation above. There are cultural prejudices against people with darker skin.

The law does not speak, sure, but it is spoken. A judge cannot interpret her way out of it. — NOS4A2

You are not a lawyer eh? Best leave it at that. I am not going into that because I am used to being paid to give legal education. What you can do is read a few pages back in the thread, read the article Atheist provided and my comments and you may have an inkling what lawyers can and cannot do. This remark is just intellectual laziness.

You’d have to assume she’s been wronged, and base it on nothing other than the color of her skin. So already you place her on a lower rung in a racial hierarchy. — NOS4A2

No I only need to assume that there is a privilege to being white. All in research I know of confirms that privilege.

Upon what assumption do you assume she has a different perspective? — NOS4A2

Because people with a dark skin color are treated differently then people with white skin color in certain societies, as I think if the case in the US. In any case the incarceration rates is disproportionately higher for blacks than for whites and yes they run a higher chance to be murdered and so on. The only thing that I need to make plausible is that she probably had different experiences in dealing with with others in US society than whites to make her perspective a useful addition. I think it is plausible that she had different experiences.

pseudoscientific racial distinctions and nothing besides — NOS4A2

Of course not. My assumption that there are differences in perspective is formed because I find it credible that based on cultural hierarchies reiterated in discourse and practice, black people have been subjected to different experiences in life from white people.

but perhaps I’m wrong — NOS4A2

indeed

I’m not lawyer, but I assume that the only perspective that matters in a court is the word of the law. — NOS4A2

And you are again wrong. Read my discussion with mr Atheist. The law does not speak. Judges do, they interpret the law.

So-called “positive” race discrimination suggests a belief in the inferiority of the races they are designed to help. But this nomination isn’t a form of affirmative action, and it isn’t clear that Biden thinks women with darker complexions are inferior. — NOS4A2

Positive iscrimination is a way to redress past wrongs and an attempt at creating equal starting positions. It has nothing to do with inferiority or superiority.

Neither is it about racial justice. Biden worked really hard to filibuster Judge Janice Brown back in the Bush days, and threatened to do the same if she was ever nominated for Supreme Court. He actively and explicitly opposed the nomination of a black woman, so if it was about racial justice let’s just say he missed that opportunity 20 years ago. — NOS4A2

I guess he wants a black woman with a similar political agenda.

Rather, it is about identity politics, in this case using race and gender to score political points in the hopes of retaining political power now and in the future, the ethics of racial discrimination be damned. — NOS4A2

That might be a practical concern of course, politicians like to appeal to their constituencies.

You can see the justification of this form of discrimination in this very thread, complete with essentialist notions about her experience, different knowledge, and different ways of thinking, which are racist assumptions if I’ve ever seen them. So if it isn’t racist according to your definition, it soon will be. — NOS4A2

Not different ways of thinking but different perspectives. Having different perspectives represented might lead to better in the sense of better informed legal judgments. In the US there is also the principle right of judgment before ones peers to be kept in mind. That does deal with equal representation. Considered in the long term would it not also be representationally fair if a woman of color gets a chance to shape the law of the land? That is, if one thinks that judgment is a matter of being held to account by a forum of peers. (I do not necessarily think it is, but in the US with its jury system this seems to be an entrenched principle of law)
Law is, as I have tried to show a hermeneutic enterprise in which the presence of a plethora of background assumptions is beneficial. Now it is not by necessity that a woman or a or a black person brings a different perspective to the table, but it is more likely than that a white man does.

That is strange... I can seem to access it alright but not link it....
The article is called "Kelsen's theory of the basic norm" by Joseph Raz.... odd how this works or does not work.

It is self referential, it is the exact norm through which\ law states its law like character, At least that is how I understand him. There is no other norm below the grundnorm, it is a logical necessity. But lets get to the bottom if this :) here is Raz' take on it.... link Raz

Again, this reference should not be seen as an argument to support my case. It is, instead, for you to consider that your socially ingrained adoration of law is viewed by many philosophers, including from Plato's time on, as a false, misplaced adoration. — god must be atheist

No, I am not adoring the law as you say. I have read the article and I must say, so many words to state such an obvious thing! However I think the writer is mistaken, or at least not penetrating enough on a number of areas.

First of all. We are not in disagreement, certainly law and justice are intertwined. However, compare your case to his. In your case on Jones and Perez you smuggled in a hidden assumption, namely that we knew with certainty that Perez indeed owed money to Jones. In a court of law there are two types of rules, rules of substantive law (material law) which states what needs to be done. In this case Perez needs to repay the money. There are also rules of evidence, they belong to the realm of procedural, formal law and pertain what counts as evidence. In the case you present, there is some sort of a priori knowledge, but we do not have that. Therefore we need to allocate the burden of proof. It might well be than that the wrong party gets to keep the money because the other could not prove it. That is only unjust with the benefit of hindsight.

Now D'Amato's article is actually about something very different, it is about substantive law. He makes a couple of claims. With most I take no issue at all. The first is his contention that "We cannot do justice if we are blind to the law. It is critical to underline the 'facticity' of law. Law is a topographical fact just like a hill or valley or stream. It is something that exists. But it is not something that has normative power."

I do not agree with law not having normative power. It appeals to obedience by being issued as law and not as a command of a gang of thieves. That said, it is not the only precept that has normative power. there are notions, such as equality, equity, fairness, that hold normative power too and they can trump the normative power of the law. I also do not agree that law is a fact like a hill or stream. That is a silly comparison. It means that the law is simply an obstacle to overcome. It is not, it determines behaviour in a very different way. It makes an appeal to the reader of what he or she should be doing, not what they can or cannot do, as a physical impediment does. It orders our society and also signals mutual expectations. It also, and that is the crux of my argument defines what we see as justice. Amato thinks justice informs the law but the relationship is a deal more complicated than that. He gives the example of stealing oranges from a yard. It is our sense of justice he contends that makes us know we will not escape punishment. However, there is nothing inherently just in the institution of private property I would content. It came about through law ways, not even written law, probably customary law, but law nonetheless. We have just internalized it and called it 'justice'.

Secondly, he thinks that when a literal interpretation of the law leads to flagrantly unjust results we need to take recourse to justice and we also do. He cites the case of riggs v Palmer where the testator is murderer by the beneficiary and the courts did not award him the inheritance. He also uses this example in the hypothetical he constructed of the poor child being killed in an accident.

I think here he underestimates the resilience of the law and makes an appeal to some sort of category unnecessarily vague, justice. It is of course clear that in the hypothetical case the judges should acquit Alice. D' Amato thinks that this follows from justice concerns. However that leads to problems because than we have to conclude that when justice conflicts with law justice trumps law. However, our sense of justice is not always equal. Law as a whole system would than only be conditionally valid. Worse is that it sets up a false dichotomy. We would have to say that the conviction of Alice was legally right, but from a justice perspective wrong. Difficult to reconcile with the normative force of law. Fortunately there is another way.

I contend that the judges should acquit Alice not only out of justice concerns but out of legal concerns! That needs some more penetrating legal analysis. Alice crosses the white lines, but what are those white lines for? They are there to prevent accidents. The legal good they protect is the health of the participants in traffic. Alice crossed them to avoid damaging the health of a participant in traffic namely the darting child. She did exactly what the law wanted. A conviction would actually tell people not to do what the law wants, as the hypothetical also shows by presenting the case of Bruce. The verdict to convict Alice is not only wrong from a justice point of view, it is bad from a legal point of view. To that end Dworkin coined (or refined) the notion of legal principle. The law is not just what is on paper, below it there are principles at stake which lay embedded in the law. They determine whether violations of the law as it literally stands should b admitted or not. And indeed judges behave like that. They do not appeal to justice in order not to get into endless controversies but to legal principles as in the case Riggs v Palmer.

Of course such cases have been tried and we now have the ' lesser evils defense' in criminal law, appealing that you action might be justified because you averted a greater danger. It is now simply part of the law.

So what I have been trying to show you is that you mischaracterize law. It is not divorced from justice but justice emerges in a different guise, as a principle embedded within the law. The law of evidence may well be just even though in retrospect it may lead to unjust outcomes in a few individual cases. However the caricature you make out of law and lawyers, simply algorithmic rule followers, is a miss characterization. They are adapt at legal argument. If they reside in a sound legal order there will not be gross miscarriages of justice and when they occur the law and the judiciary should thoroughly self examine.

@Benkei Well not knowing anything about corporate law my 2 cts are as good as anyone else's. The SPA might be between two Dutch companies, but apparently there is a Slovak company involved and this slovak company is in the process of a name change. Can you not refer the company with its old name and add something like 'as registered' and refer to the new name as ' in the process of being registered as.... ' ? I know corporate law can be very formulaic, Turkish corporate law in any case is, which resembles this kind of problem.

Anyway, I deeply disliked corportate law ;) so back to my beloved Grundnorm and the issue of Natural law in the Amato article. Oddly enough it came up in the free will discussion so it is well worth spending some time on.. The Grundnorm first, indeed it is a sovereign act of law creation, the only one there is in the Kelsenian system. It is designed to end the ' turtles all the way down' one gets when following the steps of the legality of rules. It ends somewhere and it ends for Kelsen in a sovereign act of law creation. " I am the law!" to speak with Judge Dredd... It is an act by whoch a community establishes itself as a community under the law. It is itself not based on anything indeed but on a sovereign act.

That can't be. The Grundnorm is the norm that all other norms, rules and law, derive from. By definition it cannot be based on something else. — Benkei

No no, my apologies. I wrote it wrong. The Grundnorm is not based on justice. The Grundnorm is simpy the norm all other norms derive their binding force from.

I was reading discworld novels when studying Kelsen and I thought the "turtles all the way down" was an apt metaphor for his Grundnorm. He never defined it and I thought it was a cop out to try to avoid saying something like, it's based on divine law, it's natural law etc. I didn't particularly like him. I liked Hart better. — Benkei

They are similar in my view. Just that for Kelsen a Grundnorm is an act of state. Hart with his more common law ancestry defines it not as an act of state but an act of legal professionals.

Turtles all the way down is an apt metaphor except that in law the turtle ends somewhere. Namely at that force that has the power to say "we the people..." etc. In the Westphalian order it is the state.

I'm confronted with the Brno legal positivist school in my daily work actually. Kelsen lives on in Slovakia which for practical purposes totally sucks. — Benkei

Why are you confronted with the Brno legal positivist school? Not that I have an inkling of what they think in Brno, but it sounds cool. I am interested, please tell me more!

Yes, that is the problem, isn't it? What are you going to believe, your own experience of thinking, acting, and living, which demonstrates the reality of free will, or some half baked notion that the world is "naturalistically determined"? — Metaphysician Undercover

Well I do not think the second notion is that half baked. I also do not believe that my experience necessarily proves the reality of something, so I do think we are in a genuine philosophical conundrum.

But, do we not know enough about the laws of nature to conclude that the world is naturalistically determined? — Garrett Travers

I might well agree with you on that. From a naturalistic metaphysical point of view, free will is difficult to understand to begin with. From the perspective that everything happens in law governed chains of cause and effect, free will is hard to fathom. It would mean that something out there magically escapes that chain and acts as an uncaused causer and lo and behold it resides within our brain... so from a naturalistic standpoint I think free will is very unlikely to begin with and all the sciences based on it, like neurosciences seem to confirm that idea. the naturalistic metaphysics is the metaphysical position of the sciences today and for good reason.

The problem is that that particular brand of metaphysics cannot make sense of the particular experience of freedom of choice. Saying it is an illusion will not help because an illusion tends to disappear when it is punctured. The experience of choice and freedom is irreducible to illusion though. In philosophy the phrase is that the first person is irreducible to the third person perspective. At least that is the take I have on free will. For me it is part of a bigger problem / human condition but those ideas I will hold to myself for now.

I would say that what is important (from the POV of the individual) is the experience or feeling of freedom. And since the question cannot be answered then it doesn't matter. If it could be answered and the answer was that freedom (in the full libertarian sense) is completely illusory, then that might matter to individuals, since such a realization might demotivate or demoralize people. It would more definitely matter for the idea of moral responsibility, praise and blame. — Janus

Sure I think the question has existential importance. Strawson reasons it away and so I do not embrace his approach. In Strawson's view though we need the registers of freedom and of determinism and use them to assess the behavior of others. whether the world is really really determined we cannot know and therefore it would be merely impoverishing if we would do away with the register of freedom and treat everyone as if they were determined. My take on it is different though, though I arrive at more or less the same conclusion.

As for the traffic lights example, sure, traffic lights could also be used to make people less free. We could in theory prevent a whole class of people from going to work by hindering their community with traffic lights, than it would make them less free. What I think you arrive at though is not that teh definition of freedom is contextual, the actual assessment of who is free and who is not is contextual, determined by the facts of the case.

@banno No disagreement with you there. Indeed I am on the same page. I do not really know why that necessarily would lead to virtue ethics though and I like to ask you that question. Why would it lead to virtue ethics? Not to quibble with you because I am quite partial to virtue ethics as well, but to see why you think there is a connection there that first better with virtue ethics than with say utilitarianism or deontology.

I do not think the Grundnorm is a name for justice... the Grundnorm in Kelsen's system is based on justice. The Grundnorm is simply the norm laid down to determine which rules ultimately grant the power to make law. It is similar to Hart's rule of recognition, though Kelsen had an act of the state or ruling power in mind and Hart the behavior of legal professionals as ultimately constituting the Grundnorm/Rule of recognition... I think Kelsen's concept inspired Hart's. However, both I see as equally positivist, in that justice is not an intrinsic part of what determines law as law...

How could it be tested? — Janus

We are in agreement there. It cannot. The only way we can philosophically say something about it is by asking a different question. For instance whether it matters at all whether we really really are determined, Strawson uses this approach. We can also ask what our belief in determinism vs our experience of freedom of choice means for our existential humanity or some such question. But no testing whether the world is determined or not is I would think impossible.

To your credit the article does present some claims going your way nicely, I admit. I will have to really read it to get to the heart of it, but that is an interesting an endeavor and I am in no way dismissing it out of hand. However, the author also concedes than many authors, actually hold procedural requirements as an element of just law.

See here on p. 21 "We saw earlier that Kelsen claimed that justice was, at best, a commentary about the
law (the idea of an "unjust law"), or in the special context of the administration of the law, a
concept that reduced to legality (according to Kelsen, the just administration of the law "means
legality"). In other words, Kelsen is saying that justice makes sense above the law (as a
commentary on it), or under the law. We can concede these uses of the term ''justice,'' and yet
maintain that they do not rule out the possibility of justice within the law in the sense that I've
been talking about it (justice as part of what directly influences the judge in deciding a case)."

I think I am on Kelsen's side, which when it comes to philosophy of law is not a bad side to be on. Though I agree justice in that specific case features in an court decision. I also do not know anyone who would disagree since the reign of the so called 'legists' in 19th century Europe. However, the article is certainly interesting and requires some thorough reading so I will give it a go when there is a bit more time. Thanks for bringing it to my attention.

He actually seems to be in the natural law tradition arguing there is and should be a connection between law and justice. That is fine of course, however, he is hardly the only writer to make that point. I am also not arguing law can just forego concerns of justice, what I am saying pace the old Radbruch, is that legal certainty is itself necessary for law to function in a just way, meaning, bringing a just society closer. But by all means less discuss the article further!

@Benkei It is an adddiction Benkei.... now what I wonder is, what keeps you addicted, what is your poison?

Abstract: What does it mean to assert that judges should decide cases according to justice and not according to the law? Is there something incoherent in the question itself? That question will serve as our springboard in examining what is—or should be—the connection between justice and law.
Legal and political theorists since the time of Plato have wrestled with the problem of whether justice is
part of law or is simply a moral judgment about law. Nearly every writer on the subject has either concluded that justice is only a judgment about law or has offered no reason to support a conclusion that justice is somehow part of law. — god must be atheist

"Lex initusta non est lex" Thomas Aquinas. :brow:

I would have to read the article to see if it makes sense. However, there is a whole natural law tradition (I am no natural law theorist by the way, neither is Ciceronianus) that holds that law and justice are intimately connected. In any case it probably comes down to a definition of justice, or to the use we put it. I found my argument to be coherent, so if there is some sort of counter to it in the article I'd like to hear it.

So if nearly every writer said the same thing as I did ( — god must be atheist

I am very sure they did not. Probably the debate the article referred to is between positivism and natural law. No author I have read (and those are quite a few) claim that having a procedurally sound legal system is unjust. What the debate is about probably is whether law as such should be law also if the law is unjust. Here I side with the positivists: law is law, no matter whether if it is just or unjust. Justice is not integral to the definition of law, I agree. However, that is a different claim than a procedural legal system does not serve justice.

I think traffic lights do interfere with personal freedom. Red light means you cannot go ahead. My goal is to go ahead. I am being stopped in achieving my goal, by a control; the control is curtailing my freedom.

I am not saying that your surrounding argument is invalid, but this example does serve the exact opposite of the service you used it for. — god must be atheist

Yes and that you are forced to draw that conclusion shows how implausible your definition of freedom is. It follows that a society in which we have well regulated traffic is a less free society than a society in which everyone just does something, meaning no one arrives at their destination. Every political and social philosopher I have read on the subject considers freedom as freedom from something, but also as freedom to reach the goals you have set for yourself. The traffic light example by the way is Charles Taylor's. Those goals are much easier to reach in a society with well planned roads than in societies one just has to fin out everything by oneself.

I think it's fair to say that if we have any capability of control at all, then that is a quantum of freedom. If we never could have done otherwise than we did, then freedom is an illusion; our lives are pre-determined or at least not determined by us. — Janus

Under a certai definition of freedom. Here yoou equate every form of control with freedom. More control equals more quanta of freedom. However, that definition leads to absurd consequences because it means traffic lights would make you less free. If we define freedom as the capability to choose your own life paths than traffic lights suddenly add quanta of freedom.

That said, in the absence of external political or social forces controlling us, we can enjoy a felt freedom; would it matter if, on some externalist perspective alien to our actual lives, the feeling of freedom were thought to be an illusion? — Janus

That is a question tackled by some compatibilist philosophers I think. Possibly also by some in this thread. If you define freedom as freedom from natural impediments and control by other people, (or just control by other people) than by definition the will is free.

Anyway it seems obvious to me that the question of agency or free will has a history which predates the deliberations and deliverance of the church fathers, and that was all I was responding to. I haven't made bold to comment on the article, since I haven't read it, but only on the generalized comments of others. I don't intend to read the article, so I won't discover whether Arendt makes the claim that the idea of free will originated with the church fathers, and that's OK. — Janus

That is a dangerous way to go because others here are very silly compared to Arendt. I do not think it is obvious. Issues of control are discussed but not all control is freedom and freedom is defined differently throughout the ages that is I think the point of the article. I never come across a discussion in Greek philosophy about the problem of free will, control yes, but free will no. I know that for the church fathers it was a big issue. For Augustine and also for Boethius, in the context of the omniscience of God. that is really the only text I have looked at from the church fathers on that topic. https://plato.stanford.edu/entries/free-will-foreknowledge/

Questions of moral responsibility and freedom are inevitable in any society where a tradition of thinking about the human situation arises. — Janus

Possibly, but the SEP article paints too broad strokes. There might be questions of control of the will, Plato's discussion of the tripartite nature of the soul comes to mind, but to be an objection against Arendt, it must be discussed in terms of freedom. The same word, freedom, must be used to designate the control of desire and the notion of will must be used, instead of for instance the faculty of ratio. The SEP article merely claims that questions of control over our own choices is a perennial question, not that they are couched in the terms freedom and will, which is Arendt's contention.

And I wasn't exaggerating when I said that the legal system's workers will say, "people come to court to seek justice. The law does not serve justice, it serves what it is convinced of it should serve." Or something to that effect.

If Jones sues Perez that Perez did not repay a loan; then it may be true, that justice would be served if Perez was forced to pay back Jones. But Jones is unable to provide a document or witnesses that Perez owes him that money. (Even if in reality Perez does.) Therefore justice is not served. — god must be atheist

Well I do not agree with you that justice is not served, justice in this individual case is not served, but there is more at stake than the individual case. I will try to show that justice writ large, as in a just legal system, a legal system that leads in most cases to just outcomes is served.

Firstly you sneak in an assumption that judges cannot work with. That Jones in reality has a right to that money. That is not the way cases come for a judge, Jones claims Perez owes him money, Perez rejects the claim. How do we proceed?

A, We ask Jones to provide evidence to buttress his claim against Perez. The most common is a document, but there might also be a witness, in any case there are rules of evidence and the onus is on Jones because he makes a claim.

B. We go out of our way, leave no stone unturned, make inquiries into the bank accounts of both, look through every and all transactions, interviews neighbors, do psychological tests to assess the character of the two parties and we will not rest until eventually the truth comes out irrespective of the witness brought forward or a document of debt produced.

C. We see them in court and hear their stories and no matter what evidence presented, we just go for oir gut feeling. Whoever tells the more convincing story gets the claim awarded.

Now: option B. is most in accordance with finding the truth. We come as close to the truth as we can get and possibly Perez'deception comes to light. After a very time consuming, difficult and costly inquest, yes, the truth is finally out there. However, imagine the costs of such an operation, not only in money, but also in time and in hardship for the parties and possibly others who get investigated in the context of this inquiry. Even if it would be at all possible to find the truth, which is not a given at all, the justice system would be quickly overflow with cases. We would not have the manpower, or only against very high costs. those costs have to be subtracted elsewhere, say cancer treatments. A more truthful justice system might lead to a less healthy population. Moreover, notions like privacy, certainty, the right to closure of a dispute, would all be moot. Uncertainty will be rife because suddenly your money might be frozen because Perez claims it is his and first we have to leave no stone unturned to see whether this might be true. In that time we cannot let you make use of that money because you might hide it by transferring it to a third party. The money will be frozen for quite a while because the inquiry itself takes a long time and there is a huge backlog of cases... Owning money will become an uncertain business, leading to economically adverse consequences. People would demand more certainty before they engage in transaction. Remember we do not know a-priori who is right, I wish that was true! We are in a situation in which Joneses make claims on Perezes and sometimes Perez is right, sometimes Jones.

C. leads to arbitrariness. We hope judges are better at detecting deception and assessing the weight of different stories, but alas they are human and like I pointed out before biased and burdened by the background assumptions with which they read files, listen to stories, interpret mimicry and so on. Possibly it goes right mmore often than it goes wrong but it will go wrong and will lead to resentment and mistrust in the judiciary, eroding its legitimacy.

The only option is A. Beforehand the procedural requirements are stated one should meet in order to get your claim awarded. Since they are known beforehand and case after case saw judges require the same papers, parties know it. We know that when we lend a particular sum of money we should ask for a document, signed, that the sum of money is indeed owed. We know we need to provide a witness so we call in a third party (a notary for instance) who will oversee the transaction. Since we know it we will not have to go to court very often. We spare ourselves the trouble when we have no receipt, or otherwise a lawyer will tell you not to take the trouble. In turn we do ask for receipts when lending money because we know we will be asked for them. Third parties who are paid a sum by Perez can also trust on it that he really owes that money and there will not be some Jones who suddenly revindicates it, causing me the third party in good faith the trouble of being embroiled in law suits.

Of course, A in some cases lead to parties being cheated out of their money, but overall it leads to a more fair and free society in which people can know what they what need to do and can expect from each other. Three cheers for a procedurally consistent legal system!

The justice system is about finding "a" guilty person, regardless of his or her being truly guilty or not. If the court is satisfied that the person is guilty, they condemn him or her. What they find actually is unrelated to reality. — god must be atheist

That is a very peculiar take on law. There are standards of evidence and if the evidence meets the standards the person is probably guilty. Necessarily guilty, no of course not. However a judge is not 'satisfied' simply because of some gut feeling.

Thanks Bert1. The post might also serve as a reply to NOS. It is not the color of one's skin that matters it is the perspective someone of color, or a woman, or a woman of color is more likely to bring to the table.