The Oxford Companion to Philosophy Part 53 pptx

usage, 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 alterna- tives still legally open. j.m.f. 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. 1134 b , 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 philosophy’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 propose 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 evaluating—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 sub- 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 medieval 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 Some 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 obligation 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, practicable, 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 institutions 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 Xto 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 philosophy, 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 them all. j.m.f. law, problems of the philosophy of 503 *causality. Jules 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 social regulation. p.good. *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 P. 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 otherness, 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 discrete system of rules. p.good. 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 not 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 simply 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 epistemology. d.w.h. 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 undertaken. j.c. 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 Le 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, political, 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; Héloïse 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 ‘psychologi- cally’) by legal directives. j.m.f. *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 with important differences. r.p.b. 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 ‘consensus’. j.heil *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 combining 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 sub- 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 things except simple substances, and, in them, nothing 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 sub- 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 spatially 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 . 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. 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. 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