The debate about these theses asks whether Dworkin’s rather unarticulated moral theory is sound, whether the analogy with creative literary interpretation is not a new form of reductive
Trang 1usage, but because, given the relevant political
commu-nity’s history, they are morally true (while being
irreducibly distinct from utilitarian or other
collective-goal-based policies); and that legal theory, as
adjudica-tion’s prologue, is a practical enterprise of ‘creative
interpretation’, participating in developing a ‘liberal’ legal
system which, without violating integrity by repudiating
too many of its ‘materials’ (constitution, enactments, and
precedents), will treat citizens with equality of concern
and respect The debate about these theses asks whether
Dworkin’s rather unarticulated moral theory is sound,
whether the analogy with creative literary interpretation
is not a new form of reductive explanation, and whether
the claim that the law, even in hard cases, can always be
identified by moral reasoning about the legal materials is
not, likewise, a reductive oversight of law’s dependence
on authoritative choice (will) between reasonable
Guido Fasso, Storia della filosofia del diritto (Bologna, 1970).
John Finnis, Natural Law and Natural Rights (Oxford, 1980).
Wolfgang Friedmann, Legal Theory, 5th edn (London, 1967).
H F Jolowicz, Lectures on Jurisprudence (London, 1963).
J M Kelly, A Short History of Western Legal Theory (Oxford, 1992).
Alfred Verdross, Abendlaendische Rechtsphilosophie (Vienna,
1958)
Michel Villey, Leçons d’histoire de la philosophie du droit (Paris,
1957)
law, indeterminacy in: see indeterminacy in law.
law, moral: see moral law.
law, natural: see natural law; laws, natural or scientific.
law, positive A term ( jus positivum) launched in
philo-sophical commentary (Thierry of Chartres, c.1135, then
Abelard), and focusing legal theory on to law’s sources
(positum, Latin ‘laid down’) As Aquinas noted, earlier
ter-minology confused rules ‘human’ in use with rules human
in origin, though Plato and Aristotle had in substance
dis-tinguished (positive) law from morality (*Natural law.)
Human positive law includes rules (e.g against
mur-der) and institutions (e.g punishment) belonging also to
natural law (i.e morally required willy-nilly) Hart called
these the ‘minimum content of natural law’, but meant
the minimum content of positive law Most laws are
‘purely positive’; what they require was not morally
required until their positing (though Aristotle, Nicomachean
Ethics v 1134b, exaggerates in saying that they are on
‘matters [morally] indifferent in themselves’). j.m.f
*law, history of the philosophy of; feminist philosophy
of law; law and continental philosophy
Karl Olivecrona, Law as Fact, 2nd edn (London, 1971).
law, problems of the philosophy of How can there be
a philosophy of law distinct from ethics, political
philosophy, or a general social theory building on social
anthropology and comparative history?
If ethics inquires into standards of right judgement in deliberation towards choice and action, philosophy of law investigates the relation of those standards to the direct-ives laid down, by usage or authoritative decision, to guide people’s actions in political community and thereby, purportedly, protect basic interests or rights, dis-tribute burdens and advantages fairly, and restore the position of persons wronged Thus legal philosophy goes beyond but cannot elude the main problems in ethics: whether moral propositions can be known as true; whether moral truths include intrinsic goods and reasons for action richer than Kantian conformity with reason’s universalizing abstractness; whether right judgement is
by maximizing values consequent on choice; how far choice is free and intention morally decisive
If political philosophy investigates the grounds on which persons may (and do) claim authority to shape a community’s actions by directing individual conduct, legal philosophy investigates reasons for and ways of mak-ing such authority and its exercise conditional on criteria
of form (source, scope or vires, procedure, promulgation
and publicity, adjudicative integrity, etc.) Thus legal phil-osophy adds to but is enmeshed in political philphil-osophy’s main issues: e.g whether authority is justified by consent
or by intent to benefit; whether interests are rights and rights secure equality, liberty, or other benefits; whether political action is well understood on the model of deci-sions in economics or competitive games
If social theory generalizes from knowledge of particu-lar societies and events in their history, legal philosophy investigates how such societies can be implicit subjects or bearers of legal systems’ elements It thus confronts main problems of general social theory: how to identify a sub-ject-matter which can subsist as regimes and constitutions change and disappear; how to select and justify descriptive and analytical concepts and terms, given the variety of social self-interpretations and competing vocabularies dis-closed by ethnography and comparative historical and cross-cultural studies
Legal philosophy is often (e.g John Austin, H L A Hart, Joseph Raz) divided into analytical and critical Ana-lytical jurisprudence is to consider the definition of law, the theory of legal system, the analysis of legal concepts such as duty, transaction, and intention, and the theory of legal reasoning, especially in adjudication Critical philoso-phy of law is to evaluate law and legal obligation, the minimum substantive content of legal systems, the inter-locking procedural virtues called the rule of law, etc But against such a division, and the similar recent division between conceptual (or explanatory) and justificatory, it can be said that legal systems are created and maintained for reasons, and these like every reason for action presup-pose and/or propresup-pose evaluation(s) Any general account
of legal systems (or of the concept of law and legal system) must identify those shaping evaluations
Still, cannot descriptive or conceptual analysis of law’s character as means to end(s) proceed without
evaluating—and a fortiori, or at least, without morally
500 law, history of the philosophy of
Trang 2evaluating—the diverse purposes and uses to which the
instrument is put? It seems not For law’s characteristic
purport as obligatory and authoritative, like its purport as
stipulating appropriate procedures and requiring fair trials
and judgments based on truth, itself proposes an
evalu-ation and critique—mainly if not exclusively moral—of
alternative social conditions (anarchy, arbitrary
domin-ation) How, then, could there be an adequately inward
understanding or analysis of what characterizes diverse
legal systems—an account showing why law deserves a
place in any truly general account of human social life—
without an understanding of the ways law’s characteristic
features themselves (even when being unjustly
manipu-lated) manifest a critical evaluation of, and value-affirming
constructive response to, the sorts of injustice or other
lesion of human good which are inherent in lawlessness?
(Analogously, one may understand, describe, and analyse
an argument without accepting or approving it; but can
one understand, describe, or analyse argument unless one
accepts some arguments as good and adopts as normative
for one’s description the criteria by which their soundness
is recognizable?)
Law is somehow an institution or product of human
deliberative reasoning, and addressed to human
delibera-tive reasoning Laws and legal systems, like the human
persons who are their makers and subjects, somehow
belong to all the four sorts of order with which human
rea-son is concerned—roughly, natural, logical, moral, and
cultural/technical Using the conventional symbols and
syntax of an ordinary language, and supplementing them
with new conventions and techniques, legal rules
articu-late conceptions of the natural order (which reason does
not make but only considers), of logical consistency and
implication, and above all of rightness and wrongness in
official and unofficial deliberation and action This
articu-lation is highly reflexive: Kelsen’s slogan ‘the law regulates
its own creation’ captures some of this reflexivity Indeed,
even philosophical reflections on law (and nature, logic,
morality, and non-legal techniques) are often found
among the concepts and terms manipulated in making,
interpreting, and using legal rules, institutions, and
processes Legal philosophy is always tempted to resolve
the resulting complexity into the relative simplicity of just
one paradigm of order, on the basis of just one paradigm
of description, analysis, or explanation
Take causation Some legal-philosophical accounts,
particularly German accounts since Kant, have proposed
that causing is by physical movements, and is unaffected
by acting persons’ purposes or other states of mind (which
are relevant only to imputing culpability or legal liability)
Such accounts of human causality are modelled on
nat-ural-scientific accounts of causality as regularities, or
prob-abilities, or some inherent property of objects or events
Some other legal theories of causation, particularly
Ameri-can theories, have reduced ‘cause in fact’ to the minimal
conditio sine qua non (‘But for C, E would not have
occurred’), and contended that ‘cause in law’ is merely a
construct of social (i.e moral and/or cultural) policies
about who is now to take the blame and/or pay Against these reductions stands an account such as Hart and Honoré’s It accepts that judicial findings that someone’s act caused some event and/or loss are justified by consid-erations substantially independent of moral conclusions
or other policies about liability (blame and recompense); it adds, however, that the same is true of judicial findings that the event or loss was caused by someone’s omission
It accepts that all such findings are similar to scientific, his-torical, and common-sense conceptions in distinguishing
the causally relevant as a subclass of conditions sine qua non But, on Hart and Honoré’s account, the central causal
concept, of deviation from normal conditions, itself extends to include conditions culturally established as con-ventional expectations or legal duties; attributions of causal responsibility are nested in, but are not reducible to, conceptions of role- and liability-responsibility, distribu-tions of burden of proof, criteria and methods of proof, and other, in themselves non-causal considerations The com-plexity of such a non-reductive account mirrors the irre-ducible complexity of the life, deeds, and efficacy of beings who live in the natural world as reasoning and choosing agents, artificers and creators
Again, take legal personality Some say: only members
of the natural species human being are properly the ject of legal relations; lawyers’ talk of other juridical sub-jects (corporations, unincorporated associations, ships, idols, etc.) is of mere, albeit useful, fictions Others (e.g Kelsen) say: the status of legal person is simply a creation
of the law, which freely bestows or withholds it; the logic
of legal rules leaves no room for attributing to human beings a legally cognizable priority Another approach denies that human associations are mere fictions, acknowledges the convenience of attributing to associ-ations and even non-human entities the status of subject of legal rules and processes, accepts that in a logical analysis
of legal rules and relationships the human subject has no priority, but maintains that since the very point of guiding deliberation by law is to protect and promote the good of human beings, and since, prior to any human decision, subjects of that kind are naturally constituted as persons,
in their radical potentiality and/or actuality, laws are rad-ically disordered precisely as laws when they deny to any
human being (slaves, embryos, et al.) the ‘equal protection
of the law’ (minimally, equality of fundamental legal sta-tus and immunity)
As the foregoing makes evident, the vexed problem of
defining law cannot be resolved by any purely ‘analytical’ or
conceptual technique aspiring to be neutral and conceptu-ally prior to the taking of substantive positions on disputed questions about, for example, the natural and the moral orders Of course, stipulative definitions and/or lexico-graphical clarifications assist inquiry and should avoid beg-ging disputed questions But explanatory definitions summarize the results of, not linguistic data or regulations for, philosophical reflection In legal philosophy it is particu-larly easy to see the value of a long-neglected classical technique announced by Aristotle, practised by his
law, problems of the philosophy of 501
Trang 3medieval followers, and revived, if not fully consistently
deployed, by Hart: take as the subject of an explanatory
def-inition the central case of the explanandum (and
correspond-ingly the focal meaning of the term signifying that reality),
and treat as secondary and relatively peripheral, but by no
means unimportant or irrelevant, the many realities which
instantiate the central case in only a watered-down,
imma-ture, or defective way (and correspondingly the secondary
uses of the term) Then one can say that a legal system
which denies the legal personality and/or fails to protect the
fundamental rights of some members of the human
com-munity it regulates and serves is not merely unjust and
immoral but also a poor specimen of a legal system
But note: such a thesis depends on the further, widely
disputed premiss that what counts as the central case or
fine specimen of a subject-matter of social (e.g legal)
phil-osophy is settled by reference to the evaluative concerns
not of ‘bad citizens’ concerned only to avoid sanctions (as
American legal realists proposed), nor of morally
uncon-cerned judges or other officials as such (as Hart proposed),
but rather of people who understand, accept, and
pro-mote law as a morally motivated and justified response to
the evils and injustices of legally unregulated human
rela-tionships The premiss is most easily defended when law is
being considered in the course of a philosophical
reflec-tion which is from beginning to end practical, that is,
con-cerned with the question, What should I (the reflecting
person, the philosopher) choose and do?—a question
asked not in relation to some particular situation and
objective, but in the open horizon of one’s whole life That
is the question shaping the whole course of Aristotle’s
two-volume philosophical reflection on ‘human affairs’,
his Ethics and Politics, and of philosophical work
clear-headedly in the same broad tradition When this is the
question, unjust laws and morally unconcerned or
immoral viewpoints, though instructive, are evidently as
non-central as, analogously, fallacious forms of argument
are non-central (though instructive) in a philosophy of
argumentation, and doomed strategies, bad recipes, or
quack remedies are non-central (though instructive) in the
arts of war, cooking, or medicine Still, the premiss can also
be defended even when the legal- or social-philosophical
question is not itself practical, but descriptive, seeking
merely to understand law, contemplatively, as a kind of
reality found in many times and places The defence will
be dialectical: only those who understand, accept,
com-mend, and promote the rule of law as an indispensable
means of avoiding the evils and injustices of legally
unregu-lated communities and relationships have sufficient
rea-son not only to maintain and uphold the rule of law when
it is in place but also, when it is not in place, to
(re)intro-duce it, with just that complex set of features which legal
philosophers of every school agree are its characteristics
Such issues of definition and explanatory methodology
are issues within the order of logic, i.e of the rational
order we introduce into our own thinking Some of the
problems peculiar to legal philosophy arise primarily
within this order How does the propositional character of
legal rules differ from that of legal principles or other legal standards? What are the types of logical opposition between rules, and to what extent is contradiction between rules possible in a legal system? Are all rules of, or
at least reducible to, one logical type, such as the imposing
of obligation on pain of sanction or the hypothetical authorization of sanctions? If so, are the logical types cor-related with the social functions or point of different sorts
of rules? What are the irreducibly distinct types of right (perhaps claim, liberty, power, immunity)? Are rights mere logical constructs from, or shadows of, a logically or explanatorily prior concept of duty? Is a liberty (permis-sion) the mere absence of a contrary duty, or does it entail
a prohibition of some (or all) types of interference by A in the exercise of B’s liberty, and if so would it always or ever entail that B has a liberty-right to do what he ought not to?
These and similar issues have an irreducibly logical core But progress in resolving them requires close attention to the special meaning and use of terms such as ‘rule’, ‘obliga-tion’, ‘right’, and ‘liberty’ within the specific cultural and technical construct called the law That construct, in turn, characteristically serves certain human purposes, and does
so by guiding deliberation A truly general account of it cannot be limited to recording the purposes, aims, and techniques of one people, or to reproducing in a ‘detached’ mode their ‘committed’ discourse It must, therefore, engage to some extent in reflection on the moral order (which we bring by reason into our deliberations towards choice and action), by asking when action is intelligently related to basic human purposes and reasons for action In short, all the questions listed in the preceding paragraph
require the taking of some position on the point of law Is
law most illuminatingly regarded as an instrument of social control, whatever the controllers’ purposes—an
instrument which merely happens to have the inherent
capacity to serve justice, rights, and the common good, as hammers merely happen to have the inherent capacity to serve as murder weapons, paperweights, or wall decor-ations? Or does such an interpretation render much of the law’s vocabulary and logic unintelligible or, at least, rad-ically unexplained? Is law to serve liberty above all, or is the liberty it serves (if it does) only one among many funda-mental benefits? Such questions may seem remote from a strictly logical analysis, but answers to them have proved
to be necessary (though not sufficient) for analysis of the structure of legal systems as interrelated propositions or quasi-propositional meaning contents
Efforts to reduce problems of legal philosophy to the logical order have issued in striking failures: e.g Hobbes’s attempt to explain contractual obligation by equating
breach with logical absurdity; or Kant’s claim that since B’s wrong contradicts A’s rightful use of freedom, A’s (or C’s) use of coercion ‘to hinder’ B’s wrong must, ‘by virtue of
the law of non-contradiction’, be compatible with rightful freedom As such failures powerfully suggest, the norma-tivity of practical reasoning and legal norms is not reducible to logic’s normativity, but rests on the necessity
of means to or respect for basic ends
502 law, problems of the philosophy of
Trang 4Some have handled law-related moral problems and
concepts by declaring them foreign to legal philosophy, or
redefining them as cultural/technical, not moral Does
the injustice of a law affect its authority, validity, or
authoritativeness? Is equity a matter simply of
interpret-ation, or can it correct the intentions of the law givers? Do
laws (and contracts) creating obligations entail no more
than an obligation to pay the penalty (or damages) for
‘non-fulfilment’? (And if so, is the last-mentioned
obliga-tion reducible to an obligaobliga-tion not to assault the bailiffs?
And so on ) Problems such as these have been said to be
matter merely for individual conscience, morality, or
ethics But in the proper (conscientious) performance of
their judicial office as such, judges cannot avoid such
ques-tions And there are others even more essentially
con-cerned with the adjudicative role Is it right for a judge to
change the law at the cost of defeating the legitimate
expectations of the unsuccessful litigant? Or to override
the deliberately adopted policies of a democratic
major-ity? Can judges rely upon their own personal knowledge
unsupported or even opposed by the evidence admissibly
tendered in the case? And then there are the
responsibil-ities summarized in the ideal of a rule of law (Rechtsstaat):
to ensure that there is law and that it is clear, coherent,
sta-ble, public, practicasta-ble, non-retroactive, general, and
above all respected in official (including judicial) action Is
this set of purposes and features of legal ordering morally
neutral (like the sharpness of a knife for cutting)? Or must
the set, taken as a whole, have the moral purpose of
secur-ing a relationship of reciprocity between rulers and ruled,
in recognition of the dignity and rights of the ruled?
To conclude that such questions are properly part of
legal philosophy is not to take sides in the perennial debate
whether to define the law as whatever standards are
cog-nizable from social-factual sources (legislation, custom,
judicial precedent), or rather as whatever standards judges
should take into account in giving judgment
It remains that laws are manifestly in the
cultural/tech-nical order (order which, by reasoning, we bring into
mat-ter subject to our power); they are objects created by
human decision as an instrument of social co-ordination
This aspect of law’s positivity seems put in question both
by theories (*legal realism) which reduce the law to a
pre-diction of judicial action, and by theories (e.g Dworkin’s
‘law as integrity’) which locate the law not in any existing
rules and standards (considered to be merely ‘legal
mate-rials’) but only in the act of judgment by a judge who, in a
‘creative interpretation’ subjects the ‘legal materials’ to
ultimately individual moral assessment
Law’s many and varied artefacts include first the rules
of law themselves Even those rules which give legal
expression to a moral norm are truly positive laws and
usually of an artificial form: the law does not formally
for-bid murder, but rather specifies that murder is an offence,
attaches penalties, disqualifications, and other legal
conse-quences to offences, and posits (usually by implication)
that ‘offences’ are not to be committed Still, most legal
rules are no mere repromulgations of moral norms, but
products of an irreducibly creative social decision Their authenticity is a matter not immediately of moral truth, but rather of the considerations of form, source, and pro-cedure encapsulated in the characteristically legal concept
of validity
Most other legal artefacts can be classed under another characteristically legal term: institutions Legal institu-tions include not only public bodies such as courts and legis-latures, but also types of legal arrangement involving clusters of rules (contract, sale, property, corporations, crime, delict, etc.) and specific instances of such types, deliberately instituted for the sake of their legal effect (thus a particular delict or crime) And these artefacts are
to be distinguished from any documents used to create or record them Obviously, then, the description and explan-ation of such artefacts would be complex even if the cul-tural/technical order could be sealed off from the orders
of nature, logic, and morality But it cannot, and some of the most intense debates in contemporary legal philoso-phy concern the moral and other (e.g causation) founda-tions of the legal institufounda-tions of crime, tort (delict), contract, and property
Other legal artefacts include definitions, whose pur-pose is not, as in legal philosophy, to summarize an under-standing of central (and non-central) cases and focal (and secondary) meanings, but rather to assign objects and topics of human social life to universal classes for the pur-poses of a given rule (e.g taxing or registering ‘ships’); and inference rules establishing presumptions for legal judg-ment on facts Definitions and inference rules meet in the
peculiarly legal practice of deeming X to be an instance of Y.
Many problems of legal philosophy are displayed in the
problems associated with the interpretation of
constitu-tions, statutes, judgments, and other legal instruments (documents) and arrangements Should legal interpreters find and follow the commitments originally made in the morally significant choices and intentions of the makers?
Or should they give the language used—a set of conven-tional objects deployed to make a new and free-standing cultural object (the constitution, the Act of , etc.)—a new meaning and effect in accordance with new conven-tional understandings of the language? Are not both the act of legislation and the act of judicial interpretation (though immediately and directly exercises of a cultural technique) limited in their plasticity or malleability not only by other conventions but also by the natural given-ness of certain necessary pre-conditions for human action,
by the requirements of logical coherence, and by the moral significance of every human act?
Reflections on these and other ways in which legal phil-osophy is distinct from ethics, political philphil-osophy, and general social theory are compatible with expecting (anticipating and requiring) that its concepts and theses be compatible and even harmonious with the concepts and theses of those other disciplines or modes of inquiry For it
is one and the same set of persons and communities of persons that is the subject (subject-matter and agent) of
law, problems of the philosophy of 503
Trang 5Jules Coleman, The Practice of Principle (Oxford, 2001).
—— and Scott Shapiro (eds.), The Oxford Handbook of
Jurispru-dence and Philosophy of Law (Oxford, 2002).
Ronald Dworkin, Law’s Empire (Cambridge, Mass., 1986).
Robert George (ed.), Natural Law Theory (Oxford, 1992).
—— (ed.), The Autonomy of Law (Oxford, 1996).
H L A Hart and Tony Honoré, Causation in the Law, 2nd edn.
(Oxford, 1985)
Joseph Raz, The Authority of Law (Oxford, 1979).
law, rule of: see rule of law.
law, scepticism about Scepticism about law can be
understood in at least two senses In a weaker meaning it
is most usually attached to criticisms of the legal
profes-sion and refers to scepticism about specific features of
legal practice and procedure In this sense it dates back at
least to Plato’s castigation of forensic oratory as narrow,
constrained, manipulative, and untruthful in the Gorgias
and Theaetetus In subsequent history criticism of the
venality and immorality of legal practice has tended to
focus on the obscurity and illogicality of legal argument as
well as upon the arbitrariness of legal judgment From
Rabelais to the modern schools of *legal realism, sceptics
have argued that legal decision-making is divorced from
legal rules and that the power of law-making lies in the
unfettered discretion of judges, tribunals, and law
enforcement agencies In contemporary Anglo-American
jurisprudence the term ‘rule scepticism’ thus denotes a
scepticism about the necessary relationship between legal
rules or the ‘law in books’ and judicial practice, while ‘fact
scepticism’ asserts that the indeterminacy of fact-finding
procedures renders all reference to rules problematic
In a stronger sense, scepticism about law extends the
criticism of the arbitrariness or injustice of legal judgment
into arguments for the abolition of law, or predictions of
the end of law In this meaning, criticism of the profession
and practice of law are taken cumulatively to condemn
the institution of law as an unethical and unnecessary
form of human relation In this sense the earliest radical
scepticism about law is to be associated with Sir Thomas
More’s fictional Utopia and subsequently with the various
strands of anarchist and socialist political theory The
broad argument of such theories has been that the ideal of
human *freedom and specifically of self-determination is
antithetical to the demands of legal governance To the
extent that *law is necessarily coercive and repressive of
human autonomy it is an evil and can have no part to play
in a free society The authority of law is in this perspective
an ideological manipulation and is predicated upon a
domination or repression of the ultimate human good
which resides in a society of free association The practice
of law was perceived to be violent, irrational, and
neces-sary only for the preservation of private property or the
good of an élite minority
While early anarchistic and utopian-socialist
argu-ments against law tended to be either nostalgic, recalling a
primitive age of innocence, or oneiric, specifying utopia in terms of an ideal but unmapped future territory, a more substantive scepticism about law emerged within the
*Marxist tradition of political theory Where Marx had adverted somewhat incidentally and allusively to an end
of history, a communist society in which freedom would displace law and in which the state would wither away, subsequent elaborations of a Marxist critique of law developed more specific analyses of legal domination In its strongest form, Marxist scepticism about law proceeds from an analysis of economic exploitation and argues that the legal order and its substantive rules are a more or less complex reflection of the class relations which constitute the reality of social experience Within this broadly deter-ministic view of legal relations scepticism about law takes the form of critique of the ideology of the rule of law Far from treating all legal subjects as free and equal before the law, legal rules are ideological in the sense of masking the real (economic) conditions of *inequality and constraint which predetermine the content and the effect of law
In what is arguably its most sophisticated expression in the writings of the post-revolutionary Russian jurist Pashukanis, law was to be understood as a direct expres-sion of the commodity form of production and the legal subject was no more than the fictively free and equal sub-ject who would come to market and buy and sell The legal relation was thus exemplified by contract and by the unequal economic conditions within which goods were exchanged For Pashukanis, the legal form was thus a bourgeois species of human relation and law would come
to an end with the demise of the economic system upon which it was based While contemporary scepticism about law derives, both directly and indirectly, from Marxist and *communitarian anarchist critiques of law, it tends to be more partial and less millenarian in its approaches Contemporary critical legal scholarship is broadly reformist in its goals yet also argues that law exploits and dominates to the benefit of vested economic and political interests In common with *feminist analyses
of law, critical jurisprudence thus proposes an ethical cri-tique law The doctrinal tradition and its various positivis-tic justifications are analysed as abstract mystifications of the substantive injustices of legal practice While such criticisms of law do not predict a foreseeable end to the legal order they are sceptical of the ethical value of law and argue in favour of alternative forms of relation and of
*indeterminacy in law; law, problems of the philosophy of
M Cain and A Hunt (eds.), Marx and Engels on Law (London,
1979)
J N Frank, Law and the Modern Mind (first pub 1930; Garden City,
NY, 1963)
E Pashukanis, Law and Marxism: A General Theory (London,
1978)
D Sugarman (ed.), Legality, Ideology and the State (London, 1983).
R M Unger, The Critical Legal Studies Movement (Cambridge,
Mass., 1986)
504 law, problems of the philosophy of
Trang 6P Williams, The Alchemy of Race and Rights (Cambridge, Mass.,
1991)
R P Wolff, In Defence of Anarchism (New York, 1976).
law and continental philosophy In its contemporary
usage within Anglo-American jurisprudence, continental
philosophy refers most broadly to the non-analytic
trad-itions of modern European thought In this generic sense,
*continental philosophy refers initially to Hegelian,
Marx-ian, and Husserlian theories of law and of meaning In a
more recent and particular sense it refers to theoretical and
methodological positions associated with or developed
from structural linguistics, literary theory, and
psy-choanalysis The classic texts are read mainly through
their contemporary expositors but the translation and use
of continental thought bears an aura of radicalism
Conti-nental philosophy has the connotation of a reaction
against the dominant tradition and methodology of
com-mon law jurisprudence Exponents of continental theory,
who may generally be termed critical legal scholars, are
critical of the *positivism and *empiricism of
Anglo-American legal theory and specifically of the belief in the
autonomy of law and the determinacy of legal rules
Drawing widely, and often rather loosely, upon a variety
of different areas of continental thought, critical legal
scholarship seeks to deconstruct the established tradition
and legitimizing function of common-law jurisprudence
and to elaborate in its place more democratic and ethically
based theories of the plurality of laws and of the
indeter-minacy or socially constructed and contingent character
of legal meanings
The use of continental philosophy as a form or source of
critique draws upon too wide a range of thinkers and
disci-plines for it to be possible to provide a synoptic account of
such scholarship It is possible, however, to point to certain
common themes, which include a pronounced
compara-tive dimension to legal study and a concern with the
tex-tual character of law and its cultural determinations, an
interest which suggests a turn towards historicism The
more distinctive ethical and ontological themes of
conti-nental philosophy, the concerns with being and
nothing-ness, identity and difference, similarity and othernothing-ness, find
a translation and application in a variety of critical theories
of legal textuality While continental influence upon legal
scholarship cannot be reduced to radical *hermeneutics, it
may not be inaccurate to point to a shared desire to provide
political and ethical readings of the legal tradition and of its
texts In this sense the turn to continental philosophy has
become synonymous with a pluralistic and
interdiscipli-nary critique of the unity and insularity of the legal
tradi-tion Drawing latterly upon disciplines or movements as
distinct as *phenomenology, *feminism, psychoanalysis,
literary criticism, and *discourse theory, critical
scholar-ship uses continental philosophy to attack the closure of
law and to undermine the doctrinal belief in the law as a
D Carlson et al (eds.), Deconstruction and the Possibility of Justice
(New York, 1992)
D Cornell, Beyond Accommodation: Ethical Feminism, Deconstruc-tion and the Law (New York, 1993).
V Descombes, Modern French Philosophy (Cambridge, 1980) Costas Douzinas et al., Postmodern Jurisprudence (London, 1989) Peter Goodrich, Legal Discourse (London, 1987).
law and morals Legal philosophers have debated three
views about the connection between legal and moral truth—between what the law is and what it should be One view—*legal positivism—insists that legal reason-ing is entirely factual: what the law is depends only upon what has been declared to be law by whichever officials the public treats as having that authority, or on similar his-torical facts, and on nothing else On that view, though moral views that are popular within a community are very likely to influence the laws its legislators adopt, there is no necessary connection between law and moral truth, and abstract moral considerations play no role in deciding what the law is
According to a second—apparently opposite—view, which is a version of so-called *‘natural law’ theory, legal reasoning is identical with moral reasoning, so that, at least on fundamental matters, the only real law in force in any community is the moral law, and any laws a legisla-ture might make contrary to that moral law are invalid
On that view, the alleged legal system of a tyranny like Nazi Germany is not law at all
On the third view, legal reasoning interprets rather than simply describes or judges legal history: it aims to reformulate past legal decisions in the most coherent and morally attractive way consistent with the facts of legal history, that is, with the words past legislators used, the concrete orders past judges actually made, and the politi-cal and moral traditions of the community Understood as interpretative in this sense, legal reasoning is not just his-torical investigation, nor abstract moral reasoning about what rules or principles would be appropriate to an ideally just world, but combines elements of both
Neither of the first two positions fits the actual practice
of lawyers and judges Contrary to legal positivism, they often offer moral arguments to support their claims about what the law actually is when the law is controversial or unclear: when the question arises, for example, whether the right to ‘due process of law’ in the American Constitu-tion includes the right to freedom of choice about abor-tion, or whether a particular string of past judicial decisions allowing people injured in accidents to recover damages for their pain and suffering does or does not
‘embody’ a more general principle allowing recovery for any kind of emotional damage Lawyers and judges divide, in their opinions about such matters, in ways that plainly reflect their moral convictions They all concede, however, contrary to the natural law theory I described, that there is often a gap between what the law is and what they believe it should be: even lawyers who believe that tax rates are unjustly high or low do not declare them invalid on that ground, and even lawyers who think that the laws of Nazi Germany were so unjust that they should
law and morals 505
Trang 7not have been enforced by Nazi judges hesitate to say that
they were not law at all
The third, interpretative, view of law fits the practices
of lawyers, judges, and other legal officials naturally and
convincingly, however It explains why, in some cases,
they recognize as law even what they believe to be unjust:
no ‘interpretation’ of the tax code which substituted a
dif-ferent tax rate could count as a genuine interpretation of
the text It also explains why, in other kinds of cases,
judges do treat moral considerations as relevant In
con-troversial cases, when a variety of different interpretations
would each fit the abstract statutory language or the
results of actual past decisions, judges must choose among
them by deciding which interpretation—which
under-standing of the due process clause or of liability for
emo-tional damages, for example—better reflects people’s
moral and political rights and obligations
It may be objected that on the interpretative view law is
inherently *subjective: that there is no law except what
the judge thinks it is But that presupposes that the
moral-ity of rights and obligations is inherently subjective If it is,
then so is law, at least in controversial cases But though
many legal philosophers have endorsed the subjectivity of
morals as a philosophical thesis, few actually respect it in
practice, and arguments for it are implausible r.d
*moral scepticism
Ronald Dworkin, Law’s Empire (Cambridge, Mass., 1986).
Lon Luvois Fuller, The Morality of Law (New Haven, Conn., 1964).
H L A Hart, The Concept of Law (Oxford, 1961).
laws, natural or scientific.In normal discourse, the term
‘law of nature’ signifies some basic or fundamental
prin-ciple of science, such as Newton’s law of universal
gravita-tion, or the second law of thermodynamics Such truths as
‘Water always boils at 100° C at standard pressure’, or ‘Air
resistance is proportional to velocity’ are normally
consid-ered to be too specific to qualify as laws of nature Within
the philosophy of science, however, all these
generaliza-tions are counted alike as laws of nature This is because
one of the central problems in the philosophy of science is
to explain what distinguishes general truths of all these
kinds from accidental patterns
This problem arises as a corollary of David Hume’s
analysis of *causality as *constant conjunction Philosophers
prior to Hume assumed that causation involves some
power by which causes produce their effects, some cement,
so to speak, which binds cause and effect together But
Hume argued that there is no such cement All we observe
is first the occurrence of the cause, followed by the
occur-rence of the effect There is nothing to bind them together,
apart from the fact that they are constantly conjoined, in
the sense that events like the causes are always, as it
hap-pens, followed by events like the effect
But if causal laws involve nothing more than constant
conjunction, an obvious problem arises Suppose the
fol-lowing statement is true: ‘Whenever I go to Paris, it rains’
Then my going to Paris is constantly conjoined with its
raining there But we wouldn’t on this account want to
count this as a causal law It doesn’t rain because I go to
Paris It just so happens that my visits are invariably fol-lowed by rain However, what then distinguishes real laws
of nature from such accidentally true generalizations? For Hume tells us that there isn’t anything more than constant conjunction involved in genuine laws either
Note that genuine laws but not accidents support
*counterfactual conditionals Compare ‘If the water in that kettle had been at 100° C, it would have started boil-ing’ (true) with ‘If I had gone to Paris last week, it would have started raining’ (false) Taken on its own, however, this contrast simply restates the problem For however we understand counterfactual claims, we will still need some explanation of why laws but not accidents support them,
if both are simply statements of constant conjunction There are two general lines of solution to the problem
of distinguishing laws from accidents The first remains faithful to the Humean view that law statements assert nothing more than constant conjunction, and then seeks
to explain why some statements of constant conjunc-tion—the laws—are more important than others—the accidents The alternative, non-Humean strategy rejects the Humean presupposition that laws involve nothing more than constant conjunction, and instead postulates a relationship of ‘necessitation’ or *nomic necessity which obtains between event-types which are related by law, but not between those which are only accidentally conjoined
At first sight it might seem easy to develop the Humean
strategy Cannot we simply require that laws be truly gen-eral, and not restricted to such things as what happened to
a particular person in a particular city at particular times? However, this does not get to the heart of the matter For even if we formulate our example in general terms, not
mentioning me or Paris, but specifying a certain kind of
person and city, it may still be that the only instances of these kinds in the universe are still, by accident, constantly conjoined with rain Conversely, there seem to be exam-ples of laws which are restricted in space and time, such as Kepler’s law that the planets move in ellipses, which is spe-cific to our solar system
A better suggestion is that accidents, unlike laws, are no good for predicting the future This is not because acci-dental patterns cannot stretch into the future, but rather because, when they do, we cannot know that they are true J L Mackie has argued that laws differ from
acci-dents in that they are inductively supported by their
instances, whereas accidents can only be known to be true after all their instances have been exhaustively checked However, even if Mackie’s criterion is necessary for lawhood, it is not clear whether it is sufficient: couldn’t some inductively anticipatable patterns still be accidents? Perhaps a better Humean solution is that proposed by
F P Ramsey, and later revived by David Lewis: laws are those true generalizations that can be fitted into an ideal systematization of knowledge—or, as Ramsey put it, laws are a ‘consequence of those propositions which we should take as axioms if we knew everything and organized it as
506 law and morals
Trang 8simply as possible in a deductive system’ Accidents are
then those true generalizations which cannot be explained
within such an ideal theory
In recent years a number of philosophers have rejected
the Humean tradition, arguing that no account, however
sophisticated, which equates laws with constant
conjunc-tions can do justice to the real content of laws In the late
1970s D M Armstrong, Fred Dretske, and Michael
Tooley independently developed the thesis that laws
express a relationship of ‘necessitation’ between
proper-ties This relationship holds between properties which are
related by law, but not between those which are only
acci-dentally conjoined So laws involve something more than
Humean regularity: necessitation implies constant
con-junction, but not conversely Defenders of this view do
not wish to suggest that the relationship of necessitation
can be known *a priori; rather, which properties
necessi-tate which others is an empirical matter to be settled by a
posteriori investigation
Critics of the non-Humean approach complain that
merely postulating a relationship of necessitation leaves
the philosophical issues unsolved Hume himself rejected
necessitation on the grounds that it is not observable
Contemporary critics do not object to unobservability
per se, but they do object that the non-Humean view gives
no real explanation of what necessitation adds to constant
conjunction, and of exactly why this extra component
should support counterfactual claims about what would
happen if things were different
Despite these objections, some version of the
non-Humean approach to laws may prove necessary to deal
with probabilistic laws, that is, laws which say that all As
have a probability p of being Bs The natural
generaliza-tion of the Humean approach would take these laws to
state, not that A is constantly conjoined with B, but rather
that 100p per cent of As are conjoined with Bs Humeans
could then seek to explain why some such statements of
proportionate conjunction are regarded seriously as laws,
while others are merely accidents The difficulty facing
this Humean approach, however, is that the exact
propor-tionate conjunction of 100p per cent of As with Bs is not
even a necessary condition for the truth of the
probabilis-tic law—for example, a unique type of coin may have a 0.5
probability of heads, and yet, by chance, come down
heads six times in the only ten tosses that are ever made
with it For this reason, it is uncontroversial that
proba-bilistic laws state something other than actual
propor-tions Non-Humeans conclude that they state
quantitative relationships of necessitation—property A
necessitates property B to degree p Whether this is the
only way to construe such laws, however, will remain an
open question as long as the interpretation of *probability
is an area of active philosophical controversy d.p
*ceteris paribus
D M Armstrong, What is a Law of Nature? (Cambridge, 1983).
T Honderich, A Theory of Determinism (Oxford, 1988), ch 1.
D Papineau, ‘Laws and Accidents’, in G Macdonald and
C Wright (eds.), Fact, Science and Morality (Oxford, 1986).
laws of thought Traditionally these are ‘What is, is’
(con-fusingly called the law of identity) and ‘Nothing both is and is not’ (the law of *non-contradiction); and sometimes also the law of *excluded middle They are certainly not descriptive laws, telling how people think, but rather pre-scriptive, telling people how to think or, more precisely,
to reason (*Reasoning.) So a better name is ‘rules of logic’ There is no good reason to select these laws as special, although the first two of them are not often disputed Even logicians with the meanest conception of the scope
of deductive reasoning, such as the supporters of *Intu-itionism, need to add other laws to the first two (besides, non-deductive reasoning might have laws too) And even logicians with the most generous conception of that scope know that all three laws can be presented as ‘theorems’, derivable from some alternative basis c.a.k
I M Copi, Introduction to Logic (London, 1978), 306–8.
learning.The acquisition of a form of knowledge or abil-ity through the use of experience Not all modifications of behaviour as a result of experience involve learning, although behaviourist theories of learning tend to assume otherwise It is far from clear that changes of behaviour brought about by conditioning should be thought of as involving learning; the same applies to the biological phe-nomenon of ‘imprinting’, whereby something that hap-pens at a certain point of an animal’s life determines a subsequent form of behaviour For learning to take place
experience has to be used in some way, so that what results
is in a genuine sense knowledge or is dependent on knowledge On the other hand, learning need not involve intellectual processes such as those involved in inference, although an inference may produce new knowledge and if
it involves experience it may then be a process of learning
It is arguable that all learning itself presupposes know-ledge in some way, and this raises problems for *genetic
D W Hamlyn, Perception, Learning and the Self (London, 1983).
learning paradox Hegel held that whatever we learn is
part of an infinite wealth of knowledge, thoughts, etc con-tained in a completely indivisible ego If we do not remember what is learned we do not possess it and yet it is none the less there within us It is preserved in us in spite
of the fact that it does not exist This doctrine concerning learning might well be called a paradox
Other candidates for paradox concerning learning might be found in Plato arising from arguments tending to show that certain things are unlearnable because they must be known before any process of learning could be
G W F Hegel, Philosophie des Subjectiven Geistes, tr M J Petry as Hegel’s Philosophy of Subjective Spirit, ii (Dordrecht, 1978), sect.
403
Lebensweisheit :see popular philosophy.
Lebenswelt :see life and science.
Lebenswelt 507
Trang 9Le Dœuff, Michèle (1948– ) French philosopher with a
scholarly interest in the philosophy of Francis Bacon, and
More’s *utopianism She questions the boundaries of
phi-losophy, while insisting upon philosophy’s importance
(‘Ants and Women’) She is critical of professional
philosophers’ neglectful attitude to science, and argues
that disputes within sciences are often epistemological
(that is, properly philosophical) In Hipparchia’s Choice she
questions philosophy’s pretensions to being a unique
practice which achieves a pure clarity: philosophy is
inevitably shaped by language, metaphor, and power
rela-tions According to Le Dœuff feminists make a special
contribution Their critique of gender categories in
philos-ophy, science, and the humanities is empirical,
philosoph-ical, politphilosoph-ical, and interdisciplinary Feminists see clearly
how discourses are elevated to the status of ‘philosophical’
by a process in which social power is involved e.j.f
*feminism; Hélọse complex
Michèle Le Dœuff, ‘Ants and Women, or Philosophy without
Borders’, in A Phillips Griffiths (ed.), Contemporary French
Phi-losophy (Cambridge, 1987).
—— Hipparchia’s Choice (Oxford, 1991).
Left, the Parties of egalitarian transformation, claiming
to speak for the ‘people’, or the dispossessed and
impover-ished among them The term supposedly derives from
seating arrangements in the French revolutionary
assem-blies But older connotations of left-sidedness, having to
do with irregular, spontaneous, free-wheeling, suspicious,
or dangerous (gauche or sinister) attitudes and behaviour,
may also play a part If the designation is attributable to
right-minded and respectable people, it is presumably
derogatory But it may also have been willingly embraced
as a sign of oppositionist commitments m.walz
*equality; well-being
Leszek Kolakowski and Stuart Hampshire (eds.), The Socialist Idea
(New York, 1974)
Left and Right Hegelians: see Hegelianism.
legal positivism, intending to oppose *natural law
the-ory, denies any ‘necessary connexion between law and
morality’ Central theses among a loose cluster: (1) law is
definable and explainable without evaluative predicates
or presuppositions; (2) the law (e.g of England now) is
identifiable from exclusively factual sources (e.g
legisla-tion, judicial precedents) Some versions deny that there is
knowable moral truth Most understand positive law as
products of will, some as imperatives j.m.f
*law, positive
Gerald J Postema, Bentham and the Common Law Tradition
(Oxford, 1986)
legal realism maintains that positive law’s normativity is
reducible to social facts American legal realists (e.g
Holmes, Llewellyn), influenced by *pragmatism,
sug-gested that law is not really rules as directives but official
(particularly judicial) behaviour which legal propositions predict Scandinavian legal realists (e.g Olivecrona, Ross), more anti-metaphysical and nearer Comte’s *positivism, typically hold that law’s reality consists in experiences of being bound that are induced (‘mystically’ or
*law, positive
Karl Olivecrona, Law as Fact, 2nd edn (London, 1971).
legitimacy.Theories of legitimization attempt to offer reasons why a given state deserves the allegiance of its members In a famous analysis, Max Weber identified three sources of legitimacy—traditions and customs, legal–rational procedures (e.g voting), and individual charisma—some combination of which can be found in most political systems Many philosophers have felt unhappy with this scheme, however, which leaves out substantive questions about the justice of the state and the protection it offers the individuals who belong to it These theories have generally argued that a state’s legitimacy depends upon its upholding certain human *rights, a thesis that is often expressed in terms of its ability to meet the criteria one would expect to emerge from some form
of social contract between autonomous agents This posi-tion was classically expressed by Hobbes, Locke, and Rousseau, and in more recent times by Rawls, although
D Beetham, The Legitimation of Power (Basingstoke, 1991).
M Weber, Economy and Society, ed G Roth and C Wittich
(Berkeley, Calif., 1978), pt 1, ch 3
Lehrer, Keith (1936– ) Arizona-based philosopher, best
known for work in epistemology and philosophy of mind Lehrer has steadfastly defended ‘coherence’ theories of
*knowledge The human mind, he argues, is essentially self-reflective: minds are ‘metaminds’ Knowledge, justi-fied belief, and freedom stem from the capacity to reflect
on one’s beliefs and desires and to evaluate these in the light of one’s intellectual and practical values A positive evaluation of a belief leads to its ‘acceptance’; a positive evaluation of a desire to a preference for its satisfaction When such evaluations are ‘trustworthy’ they yield, respectively, knowledge (providing the accepted belief is true) and freedom In the social domain, one’s positive evaluation of the beliefs and desires of others produces
*justification, epistemic
K Lehrer, Metamind (Oxford, 1990).
Leibniz, Gottfried Wilhelm (1646–1716), eminent
ration-alist philosopher who was born in Leipzig and died in Hanover Leibniz was acquainted with all the major scien-tific developments of the second half of the seventeenth century He made important contributions in geology, linguistics, historiography, mathematics, and physics, as well as philosophy His professional training was in the law; he earned his living in the Court of Hanover by
508 Le Dœuff, Michèle
Trang 10combining the roles of councillor, diplomat, librarian, and
historian He did his philosophy (as well as his physics and
mathematics) in his spare time Although the vast bulk of
Leibniz’s writings remained unpublished at his death, and
a considerable amount is still unpublished, his
contribu-tions in the law, mathematics, physics, and philosophy
were known and appreciated by his educated European
contemporaries in virtue of what he did publish and in
virtue of his vast correspondence with intellectuals in a
variety of fields He was best known in his lifetime for his
contributions to mathematics, especially to the
develop-ment of the *calculus The debate concerning to whom
priority of discovery should be assigned—Newton or
Leibniz—captured the attention of their contemporaries
Current scholarly opinion seems to have reached the
con-clusion that each discovered the basic foundations of the
calculus independently, that Newton’s discovery
pre-ceded that of Leibniz’s, but Leibniz’s publication of the
basic theory of the calculus preceded that of Newton
Although Leibniz published only one book on
philoso-phy in his lifetime—The Theodicy (1710)—he did publish
considerable philosophical work in the leading learned
European journals of the time; for example, ‘Meditations
on Knowledge, Truth, and Ideas’ (1684), ‘Brief
Demon-stration of a Notable Error of Descartes’ (1686), ‘Whether
the Essence of Body Consists in Extension’ (1691), ‘New
System of Nature’ (1695), and ‘On Nature Itself’ (1698) He
also wrote a book-length study of John Locke’s
*empiri-cism, New Essays on Human Understanding, but decided not
to publish it when he learned of Locke’s death
Leibniz’s philosophical thinking underwent significant
development; the mature metaphysics, presented in
bare-bones form in the Monadology (1714), is strikingly different
from his early work on the nature of bodies None the less,
certain themes persist—the requirement that the basic
individuals of an acceptable *ontology (the individual
*substances) satisfy the most rigorous standards of
stantial unity, and the requirement that individual
sub-stances be endowed with causal powers and, hence, be
centres of genuine activity In the Monadology Leibniz
pre-sented the main outlines of his mature metaphysical
sys-tem unaccompanied by much in the way of
argumentation in favour of the conclusions therein
pre-sented Consider, for example, the first two paragraphs of
the Monadology:
1 The Monad, which we shall discuss here, is nothing
but a simple substance that enters into
composites—sim-ple, i.e without parts
2 And there must be simple substances, since there are
composites; for the composite is nothing more than a
col-lection, or aggregate, of simples
These are striking doctrines If true, the consequence
would seem to be that there are no spatially extended
substances But surely the argument of paragraph 2 is in
need of considerable support Perhaps the most complete
formulation of the relevant doctrines, and Leibniz’s
reasons for accepting these doctrines, occurs in his
correspondence (1698–1706) with Burcher de Volder, a professor of philosophy at the University of Leiden In this correspondence Leibniz formulated his basic ontological thesis in the following passage:
considering matters accurately, it must be said that there is noth-ing in thnoth-ings except simple substances, and, in them, nothnoth-ing but perception and appetite Moreover, matter and motion are not so much substances or things as they are the phenomena of percipi-ent beings, the reality of which is located in the harmony of each percipient with itself (with respect to different times) and with other percipients
In this passage Leibniz claimed that the basic individ-uals are immaterial entities lacking spatial parts whose properties are a function of their perceptions and appetites In the correspondence with de Volder, as in the
Monadology, Leibniz presented his major metaphysical
theses concerning these simple immaterial substances With respect to *causality he held the following theses God creates, conserves, and concurs in the actions of each created substance Each state of a created monad is a causal consequence of its preceding state, except for its ini-tial state at creation and any other states that result from miraculous divine intervention While intrasubstantial causality is the rule among created substances, according
to Leibniz, he denied the possibility of intersubstantial causal relations among created substances In what he denied, he agreed with Malebranche, but in affirming spontaneity, i.e that each individual substance is the cause
of its own states, he separated himself from Malebranche’s occasionalism The doctrine of the spontaneity of stance ensured for Leibniz that created individual sub-stances were centres of activity, a feature he took to be a necessary condition of genuine individuality
Leibniz was sensitive to the idea that this scheme is at odds with common sense—that there appear to be mater-ial entities that are spatmater-ially extended, existing in space, causally interacting with each other and with us More than some of his rationalist contemporaries, Leibniz took the claims of common-sense seriously In the second sen-tence of the passage quoted above Leibniz outlined his way of ‘saving the appearances’ that are sufficiently well-founded to deserve saving Two theses are at the heart of his effort: (1) the thesis that each created monad perceives every other monad with varying levels of distinctness; (2) the thesis that God so programmed the monads at cre-ation that, although none causally interacts with any other, each has the perceptions we would expect it to have, were they to interact, and each has the perceptions
we would expect it to have, were there extended material objects that are perceived The first is the thesis of univer-sal expression; the second, the thesis of the *pre-established harmony In the case of material objects, Leibniz formulated the rudiments of a version of phenomenalism, based on the pre-established harmony among the percep-tions of the monads In the case of apparent causal interac-tions among monads, Leibniz proposed an analysis according to which the underlying reality is an increase in
Leibniz, Gottfried Wilhelm 509