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Response to Desmond Manderson and Emily Kidd WhiteAustralian Journal of Legal Philosophy 47 (1). 2022.
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Artefacts, imagination and inquiry: theorizing legal reasoningAustralian Journal of Legal Philosophy 47 (1). 2022.
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11The ethics and politics of adjudication: a response to Anker, Crowe, and GolderJurisprudence 13 (2): 287-300. 2022.The dominant theme across the three comments from Elizabeth Anker, Jonathan Crowe, and Ben Golder, is a plea for more engagement with the ethics and politics of adjudication. The commentators argue...
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41Must We Play to Win? A Reply to MorganPhilosophy of the Social Sciences 45 (2): 266-272. 2015.This paper offers a brief reply to William Morgan’s critique of my review of Andrei Marmor’s Social Conventions . Morgan’s principal critique is that I am wrong to think that the constitutive rules of games do not determine their aims and values. In particular, with regards to chess, Morgan argues that the rules of chess determine that the aim of playing chess is to win the game. I defend my position that one can play the game of chess without the aim of winning - e.g. one can aim to play beauti…Read more
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21Marmor’s Social Conventions: The Limits of Practical ReasonPhilosophy of the Social Sciences 41 (3): 420-445. 2011.This essay argues that the practical reason approach to the study of social conventions (and social normativity more generally) fails to adequately account for the fluency of social action in environments that we experience as familiar. The practical reason approach, articulated most recently in Andrei Marmor’s Social Conventions: From Language to Law (2009) does help us, though not wholly adequately, to understand how we tend to react to, and experience, unfamiliar situations or unfamiliar beha…Read more
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22Judging Virtuously: Developing an Empathic Capacity for Perceptual SensitivityJurisprudence 5 (1): 196-208. 2014.Judging Virtuously: Developing an Empathic Capacity for Perceptual Sensitivity: A Review of Amalia Amaya and Ho Hock Lai , Law, Virtue and Justice
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Modelling law diachronically : temporal variability in legal theoryIn Maksymilian Del Mar & Michael Lobban (eds.), Law in theory and history: new essays on a neglected dialogue, Hart Publishing. 2016.
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Beyond universality and particularity, necessity, and contingency : on collaboration between legal theory and legal historyIn Maksymilian Del Mar & Michael Lobban (eds.), Law in theory and history: new essays on a neglected dialogue, Hart Publishing. 2016.
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39Common virtue and the perspectival imagination: Adam Smith and common law reasoningJurisprudence 9 (1): 58-70. 2018.This paper considers the similarities between Adam Smith's device of the impartial spectator and the use of perspectival devices in common law reasoning. The paper adopts a reading of Smith's device as one involving the exercise of imaginative sympathy by an ordinarily virtuous, and culturally and historically situated, spectator who does not have a stake in the outcome of the scene being evaluated. The point here is to show that the impartial spectator is 1) a device of common, ordinary virtue …Read more
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The legal imagination : individual, interactive and communalIn Amalia Amaya & Maksymilian Del Mar (eds.), Virtue, Emotion and Imagination in Law and Legal Reasoning, Hart Publishing. 2020.
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5Law in theory and history: new essays on a neglected dialogue (edited book)Hart Publishing. 2016.This collection of original essays brings together leading legal historians and theorists to explore the oft-neglected but important relationship between these two disciplines. Legal historians have often been sceptical of theory. The methodology which informs their own work is often said to be an empirical one, of gathering information from the archives and presenting it in a narrative form. The narrative produced by history is often said to be provisional, insofar as further research in the ar…Read more
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New horizons for the study of the legal mind : relating virtue, emotion and imaginationIn Amalia Amaya & Maksymilian Del Mar (eds.), Virtue, Emotion and Imagination in Law and Legal Reasoning, Hart Publishing. 2020.
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24Virtue, Emotion and Imagination in Law and Legal Reasoning (edited book)Hart Publishing. 2020.What is the role and value of virtue, emotion and imagination in law and legal reasoning? These new essays, by leading scholars of both law and philosophy, offer striking and exploratory answers to this neglected question. The collection takes a holistic approach, inquiring as to the connections and relations between virtue, emotion and imagination. In addition to the principal focus on adjudication, essays in the collection also engage with a variety of different legal, political and moral cont…Read more
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11Legal theory and the natural sciences (edited book)Ashgate. 2014.This collection brings together the most important and influential papers theorising the changing relationship between law and science. The articles span historical overviews of the attempts by legal scholars to model legal science on scientific methodology, and the efforts by legal philosophers scrutinising the claims made on behalf of genetics and neuroscience as to their implications for law and legal concepts. The volume strikes a balance between those that seek to protect law's autonomy aga…Read more
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11Legal theory and the humanities (edited book)Ashgate. 2014.The papers selected for this volume offer a panorama of problems and methods at the intersection of legal theory and the humanities. The issues addressed include the role of the emotions and the imagination in legal reasoning, and the protection of the diversity of voices and perspective in the name of community. The articles balance renewed calls to humanise legal theory with those that analyse and explore the relevance of specific domains of the humanities - such as literature, architecture, m…Read more
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Methodology of Legal TheoryAshgate. 2010.The last decade has witnessed a particularly intensive debate over methodological issues in legal theory. The publication of Julie Dickson's Evaluation and Legal Theory (2001) was significant, as were collective returns to H.L.A. Hart's 'Postscript' to The Concept of Law. While influential articles have been written in disparate journals, no single collection of the most important papers exists. This volume - the first in a three volume series - aims not only to fill that gap but also propose a …Read more
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41Artefacts of Legal Inquiry: The Value of Imagination in AdjudicationHart Publishing. 2020.What is the value of fictions, metaphors, figures and scenarios in adjudication? This book develops three models to help answer that question: inquiry, artefacts and imagination. Legal language, it is argued, contains artefacts – forms that signal their own artifice and call upon us to do things with them. To imagine, in turn, is to enter a distinctive epistemic frame where we temporarily suspend certain epistemic norms and commitments and participate actively along a spectrum of affective, sens…Read more
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13The Declamatory Tradition of Normative Inquiry: Towards an Aesthetic History of Legal and Political ThoughtJus Cogens 1 (2): 151-171. 2019.This paper offers an example of what may be called ‘an aesthetic history of legal and political thought’. Such a task engages in theorising historically the features of aesthetic traditions that enable and further normative inquiry, i.e. an exploration of the norms and values that might contribute to the good life and the common good. The three features offered in this paper as useful to identifying such aesthetic traditions are communality and interactivity, experimentalism, and exemplarity. Th…Read more
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70The Forward-Looking Requirement of Formal Justice: Neil MacCormick on Consequential ReasoningJurisprudence 6 (3): 429-450. 2015.This paper discusses a much-neglected aspect of Neil MacCormick's theory of legal reasoning, namely what he calls ‘consequential reasoning’. For MacCormick, consequential reasoning is both an omnipresent feature of legal reasoning in England and Scotland, as well as being a valuable one. MacCormick articulates the value of consequential reasoning by seeing it as contributing to the forward-looking requirement of formal justice, ie, of deciding the instant case on grounds that one is willing to a…Read more
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106Concerted practices and the presence of obligations: Joint action in competition law and social philosophyLaw and Philosophy 30 (1). 2011.This paper considers whether, and if so how, the modelling of joint action in social philosophy – principally in the work of Margaret Gilbert and Michael Bratman – might assist in understanding and applying the concept of concerted practices in European competition law. More specifically, the paper focuses on a well-known difficulty in the application of that concept, namely, distinguishing between concerted practice and rational or intelligent adaptation in oligopolistic markets. The paper argu…Read more
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21The Role and Value of Coherence in Theories of Legal ReasoningRatio Juris 30 (4): 491-506. 2017.
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178Creativity and Imagination in the Practice of PhilosophySwiss Philosophical Preprints. 2008.This paper argues that the exercise of the imagination requires us 1) to attempt to describe features of a certain practice that appear, at first blush, natural and obvious; 2) to understand that that which appears natural and obvious could be otherwise; and 3) to be open to the introduction of changes to that which appears natural and obvious. Imagination, in this sense, is quite different to creativity. The latter works on the basis of the introduction of variations to settled phenomena. This …Read more
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69Review Essay of Stephen P. Turner, Explaining the Normative, 2010
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42What Does History Matter to Legal Epistemology?Journal of the Philosophy of History 5 (3): 383-405. 2011.This paper argues that not only does history matter to legal epistemology, but also that understanding legal epistemology can yield a certain understanding of the past. The paper focuses on the common law practice of precedent and argues that there is no set of rules, principles, reasons or material facts that constitute the fixed or foundational content of past decisions, but rather that what is taken by a judge resolving a particular dispute to be the content of past decisions depends on the a…Read more
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Legal Fictions and Legal Change in the Common Law TraditionIn William Twining & Maksymilian Del Mar (eds.), Legal Fictions in Theory and Practice, Springer Verlag. 2015.
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11New waves in philosophy of law (edited book)Palgrave MacMillan. 2011.This book provides a collection of 11 cutting-edge essays by leading young scholars, challenging long-held assumptions and offering new research paradigms in Philosophy of Law, in five parts: 1) methodology/metatheory; 2) reasoning/evaluating; 3) values/the moral life; 4) institutions/the social life; and 5) the global/international dimension.
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56Legal Fictions in Theory and Practice (edited book)Springer Verlag. 2015.This essay examines the use of fictions in the reasoning of the House of Lords and United Kingdom Supreme Court in the context of two recent lines of authority on English tort law. First, the essay explores the relevance of counter-factual scenarios to liability in the tort of false imprisonment, in the light of the Supreme Court decisions in Lumba and Kambadzi. The second series of decisions is on causation in negligence claims arising from asbestos exposure. These cases have revealed fundament…Read more
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27The Language of Responsibility: Iris Marion Young: Responsibility for Justice. Oxford University Press, Oxford, 2011, 193 pp (review)Res Publica 18 (4): 373-377. 2012.
Areas of Specialization
Philosophy of Law |
Aesthetics |
Social and Political Philosophy |
Normative Ethics |
Meta-Ethics |