Thinking about Law: Perspectives on the History, Philosophy and Sociology of Law

A comprehensive introduction to the study of law. It uses historical, sociological, economic and philosophical perspectives to explore the major legal debates in Australia today. The contributors examine: the position of Aborigines in the Australian legal system and the impact of the Mabo case; divisions of power in Australian society and law; the question of objectivity in law; the relationship and social change; judicial decision-making; and other issues.

On the symbiosis of law and truth in Christian theology: Reconciling universal and particular through the Pauline law of love

This article argues that the secular liberal and positivist foundations of the modern Western legal system render it violent. In particular, the liberal exclusion of faith and subjectivity in favour of abstract and universal reason in conjunction with its privileging of individual autonomy at the expense of the community leads to alienation of the individual from the community. Similarly, the positivist exclusion of faith and theology from law, with its enforced conformity to the posited law, also results in this violence of alienation. In response, this article proposes a new foundation for law, a natural law based in the truth of Trinitarian theology articulated by John Milbank. In the Trinity, the members exist as a perfect unity in diversity, providing a model for the reconciliation of the legal individual and community: the law of love. Through the law of love as the basic norm, individuals love their neighbours as themselves, reconciling the particular and the universal, and providing a community of peace rather than violence.

That’s Not For Our Kids: The strange death of philosophy and ethics in a low socioeconomic secondary school

This article reflects on the successes and failures of a new Philosophy and Ethics course in a low socioeconomic context in Perth, Western Australia, with the eventual demise of the subject in the school at the end of 2010. We frame this reflection within Deleuzian notions of geophilosophy to advocate for a Philosophy and Ethics that is informed by nomadic thought, as this offers a critical freedom for students to transform themselves and their society and suggests practical ways both of overcoming the prejudices which led to its demise and of student reluctance to engage in open discussion in class. We consider the demise of the course a ‘missed opportunity’ because it had so much potential to be transformative of student subjectivities in schools.

‘Blind Faith’. An experiment with narrative agency in game design

This paper reports on the current field of narrative-based game design through case study analysis with a particular focus on balancing high narrative agency with low production resources.

An agreement to negotiate a contract in good faith: No legal content and too uncertain for enforcement

The decision of Baldwin v Icon Energy Ltd [2015] QSC 12 is generally instructive upon the issue of the minimum required to enforce an agreement to negotiate .The language of these agreements is always couched in terms which include the expressions “good faith” and “reasonable endeavours” as descriptive of the yardstick of behaviour of each party in the intended negotiation to follow such an agreement. However, the mere statement of these intended characteristics of negotiation may not be sufficient to ensure that the agreement to negotiate is enforceable.

A growing good faith in contracts

The Supreme Court of Canada's ruling in Bhasin v Hrynew represents a significant step forward in harmonising the multiple strands of debate surrounding the existence of a good faith provision in common law contracting. Although a general principle of good faith (derived from Roman Law) is recognized by most civil law systems and a growing number of common law countries have embraced statutory provisions towards this end, Bhasin v Hrynew is argued to be a critical advance in catalysing uniform acceptance of good faith as a fundamental principle essential to support an increasingly integrated global commercial environment.

At the Limits of Presentation : Coming-into-Presence and its Aesthetic Relevance in Jean-Luc Nancy's Philosophy

This study investigates the significance of art in Jean-Luc Nancy s philosophy. I argue that the notion of art contributes to some of Nancy s central ontological ideas. Therefore, I consider art s importance in its own right whether art does have ontological significance, and if so, how one should describe this with respect to the theme of presentation. According to my central argument, with his thinking on art Nancy attempts to give one viewpoint to what is called the metaphysics of presence and to its deconstruction. On which grounds, as I propose, may one say that art is not reducible to philosophy? The thesis is divided into two main parts. The first part, Presentation as a Philosophical Theme, is a historical genesis of the central concepts associated with the birth of presentation in Nancy s philosophy. I examine this from the viewpoint of the differentiation between the ontological notions of presentation and representation by concentrating on the influence of Martin Heidegger and Jacques Derrida, as well as of Hegel and Kant. I give an overview of the way in which being or sense for Nancy is to be described as a coming-into-presence or presentation . Therefore, being takes place in its singular plurality. I argue that Nancy redevelops Heidegger s account of being in two principal ways: first, in rethinking the ontico-ontological difference, and secondly, by striving to radicalize the Heideggerian concept of Mitsein, being-with . I equally wish to show the importance of Derrida s notion of différance and its inherence in Nancy s questioning of being that rests on the unfoundedness of existence. The second part, From Ontology to Art, draws on the importance of art and the aesthetic. If, in Nancy, the question of art touches upon its own limit as the limit of nothingness, how is art able to open its own strangeness and our exposure to this strangeness? My aim is to investigate how Nancy s thinking on art finds its place within the conceptual realm of its inherent difference and interval. My central concern is the thought of originary ungroundedness and the plurality of art and of the arts. As for the question of the difference between art and philosophy, I wish to show that what differentiates art from thought is the fact that art exposes what is obvious but not apparent, if apparent is understood in the sense of givenness. As for art s ability to deconstruct Nancy s ontological notions, I suggest that in question in art is its original heterogeneity and diversity. Art is a matter of differing art occurs singularly, as a local difference. With this in mind, I point out that in reflecting on art in terms of spacing and interval, as a thinker of difference Nancy comes closer to Derrida and his idea of différance than to the structure of Heidegger s ontological difference.

Karl Popper's Philosophy of Science - And the Evolution of the Popperian Worlds

This doctoral thesis in theoretical philosophy is a systematic analysis of Karl Popper's philosophy of science and its relation to his theory of three worlds. The general aim is to study Popper's philosophy of science and to show that Popper's theory of three worlds was a restatement of his earlier positions. As a result, a new reading of Popper's philosophy and development is offered and the theory of three worlds is analysed in a new manner. It is suggested that the theory of three worlds is not purely an ontological theory, but has a profound epistemological motivation. In Part One, Popper's epistemology and philosophy of science is analysed. It is claimed that Popper's thinking was bifurcated: he held two profound positions without noticing the tension between them. Popper adopted the position called the theorist around 1930 and focused on the logical structure of scientific theories. In Logik der Forschung (1935), he attempted to build a logic of science on the grounds that scientific theories may be regarded as universal statements which are not verifiable but can be falsified. Later, Popper emphasized another position, called here the processionalist. Popper focused on the study of science as a process and held that a) philosophy of science should study the growth of knowledge and that b) all cognitive processes are constitutive. Moreover, the constitutive idea that we see the world in the searchlight of our theories was combined with the biological insight that knowledge grows by trial and error. In Part Two, the theory of three worlds is analysed systematically. The theory is discussed as a cluster of theories which originate from Popper's attempt to solve some internal problems in his thinking. Popper adhered to realism and wished to reconcile the theorist and the processionalist. He also stressed the real and active nature of the human mind, and the possibility of objective knowledge. Finally, he wished to create a scientific world view.

Encounters with the Virtual : The Experience of Art In Gilles Deleuze's Philosophy

My thesis concerns the notion of existence as an encounter, as developed in the philosophy of Gilles Deleuze (1925 1995). What this denotes is a critical stance towards a major current in Western philosophical tradition which Deleuze nominates as representational thinking. Such thinking strives to provide a stable ground for identities by appealing to transcendent structures behind the apparent reality and explaining the manifest diversity of the given by such notions as essence, idea, God, or totality of the world. In contrast to this, Deleuze states that abstractions such as these do not explain anything, but rather that they need to be explained. Yet, Deleuze does not appeal merely to the given. He sees that one must posit a genetic element that accounts for experience, and this element must not be naïvely traced from the empirical. Deleuze nominates his philosophy as transcendental empiricism and he seeks to bring together the approaches of both empiricism and transcendental philosophy. In chapter one I look into the motivations of Deleuze s transcendental empiricism and analyse it as an encounter between Deleuze s readings of David Hume and Immanuel Kant. This encounter regards, first of all, the question of subjectivity and results in a conception of identity as non-essential process. A pre-given concept of identity does not explain the nature of things, but the concept itself must be explained. From this point of view, the process of individualisation must become the central concern. In chapter two I discuss Deleuze s concept of the affect as the basis of identity and his affiliation with the theories of Gilbert Simondon and Jakob von Uexküll. From this basis develops a morphogenetic theory of individuation-as-process. In analysing such a process of individuation, the modal category of the virtual becomes of great value, being an open, indeterminate charge of potentiality. As the virtual concerns becoming or the continuous process of actualisation, then time, rather than space, will be the privileged field of consideration. Chapter three is devoted to the discussion of the temporal aspect of the virtual and difference-without-identity. The essentially temporal process of subjectification results in a conception of the subject as composition: an assemblage of heterogeneous elements. Therefore art and aesthetic experience is valued by Deleuze because they disclose the construct-like nature of subjectivity in the sensations they produce. Through the domain of the aesthetic the subject is immersed in the network of affectivity that is the material diversity of the world. Chapter four addresses a phenomenon displaying this diversified indentity: the simulacrum an identity that is not grounded in an essence. Developed on the basis of the simulacrum, a theory of identity as assemblage emerges in chapter five. As the problematic of simulacra concerns perhaps foremost the artistic presentation, I shall look into the identity of a work of art as assemblage. To take an example of a concrete artistic practice and to remain within the problematic of the simulacrum, I shall finally address the question of reproduction particularly in the case recorded music and its identity regarding the work of art. In conclusion, I propose that by overturning its initial representational schema, phonographic music addresses its own medium and turns it into an inscription of difference, exposing the listener to an encounter with the virtual.

Self-love and self-liking in the moral and political philosophy of Bernard Mandeville and David Hume

This work offers a novel interpretation of David Hume’s (1711–1776) conception of the conjectural development of civil society and artificial moral institutions. It focuses on the social elements of Hume’s Treatise of human nature (1739–40) and the necessary connection between science of man and politeness, civilised monarchies, social distance and hierarchical structure of civil society. The study incorporates aspects of intellectual history, history of philosophy and book history. In order to understand David Hume’s thinking, the intellectual development of Bernard Mandeville (1670–1733) needs to be accounted for. When put into a historical perspective, the moral, political and social components of Treatise of human nature can be read in the context of a philosophical tradition, in which Mandeville plays a pivotal role. A distinctive character of Mandeville and Hume’s account of human nature and moral institutions was the introduction of a simple distinction between self-love and self-liking. The symmetric passions of self-interest and pride can only be controlled by the corresponding moral institutions. This is also the way in which we can say that moral institutions are drawn from human nature. In the case of self-love or self-interest, the corresponding moral institution is justice. Respectively, concerning self-liking or pride the moral institution is politeness. There is an explicit analogy between these moral institutions. If we do not understand this analogy, we do not understand the nature of either justice or politeness. The present work is divided into two parts. In the first part, ‘Intellectual development of Bernard Mandeville’, it is argued that the relevance of the paradigmatic change in Mandeville’s thinking has been missed. It draws a picture of Mandeville turning from the Hobbism of The Fable of the Bees to an original theory of civil society put forward in his later works. In order to make this change more apparent, Mandeville’s career and the publishing history of The Fable of the Bees are examined comprehensively. This interpretation, based partly on previously unknown sources, challenges F. B. Kaye’s influential decision to publish the two parts of The Fable of the Bees as a uniform work of two volumes. The main relevance, however, of the ‘Intellectual development of Mandeville’ is to function as the context for the young Hume. The second part of the work, ‘David Hume and Greatness of mind’, explores in philosophical detail the social theory of the Treatise and politics and the science of man in his Essays. This part will also reveal the relevance of Greatness of mind as a general concept for David Hume’s moral and political philosophy.

A Literary Turn : Rethinking the Roles of Generalization and Theory in Anglo-American Moral Philosophy

This work investigates the role of narrative literature in late-20th century and contemporary Anglo-American moral philosophy. It aims to show the trend of reading narrative literature for purposes of moral philosophy from the 1970 s and early 80 s to the present day as a part of a larger movement in Anglo-American moral philosophy, and to present a view of its significance for moral philosophy overall. Chapter 1 provides some preliminaries concerning the view of narrative literature which my discussion builds on. In chapter 2 I give an outline of how narrative literature is considered in contemporary Anglo-American moral philosophy, and connect this use to the broad trend of neo-Aristotelian ethics in this context. In chapter 3 I connect the use of literature to the idea of the non-generalizability of moral perception and judgment, which is central to the neo-Aristotelian trend, as well as to a range of moral particularisms and anti-theoretical positions of late 20th century and contemporary ethics. The joint task of chapters 2 and 3 is to situate the trend of reading narrative literature for the purposes of moral philosophy in the present context of moral philosophy. In the following two chapters, 4 and 5, I move on from the particularizing power of narrative literature, which is emphasized by neo-Aristotelians and particularists alike, to a broader under-standing of the intellectual potential of narrative literature. In chapter 4 I argue that narrative literature has its own forms of generalization which are enriching for our understanding of the workings of ethical generalizations in philosophy. In chapter 5 I discuss Iris Murdoch s and Martha Nussbaum s respective ways of combining ethical generality and particularity in a philosophical framework where both systematic moral theory and narrative literature are taken seriously. In chapter 6 I analyse the controversy between contemporary anti-theoretical conceptions of ethics and Nussbaum s refutation of these. I present my suggestion for how the significance of the ethics/literature discussion for moral philosophy can be understood if one wants to overcome the limitations of both Nussbaum s theory-centred, equilibrium-seeking perspective, and the anti-theorists repudiation of theory. I call my position the inclusive approach .

Non-reductive Physicalism, Irreducibility of the Mental and the Problem of Mental Causation : A study of Donald Davidson's and Georg Henrik von Wright's positions in the philosophy of mind

In this study I consider what kind of perspective on the mind body problem is taken and can be taken by a philosophical position called non-reductive physicalism. Many positions fall under this label. The form of non-reductive physicalism which I discuss is in essential respects the position taken by Donald Davidson (1917-2003) and Georg Henrik von Wright (1916-2003). I defend their positions and discuss the unrecognized similarities between their views. Non-reductive physicalism combines two theses: (a) Everything that exists is physical; (b) Mental phenomena cannot be reduced to the states of the brain. This means that according to non-reductive physicalism the mental aspect of humans (be it a soul, mind, or spirit) is an irreducible part of the human condition. Also Davidson and von Wright claim that, in some important sense, the mental aspect of a human being does not reduce to the physical aspect, that there is a gap between these aspects that cannot be closed. I claim that their arguments for this conclusion are convincing. I also argue that whereas von Wright and Davidson give interesting arguments for the irreducibility of the mental, their physicalism is unwarranted. These philosophers do not give good reasons for believing that reality is thoroughly physical. Notwithstanding the materialistic consensus in the contemporary philosophy of mind the ontology of mind is still an uncharted territory where real breakthroughs are not to be expected until a radically new ontological position is developed. The third main claim of this work is that the problem of mental causation cannot be solved from the Davidsonian - von Wrightian perspective. The problem of mental causation is the problem of how mental phenomena like beliefs can cause physical movements of the body. As I see it, the essential point of non-reductive physicalism - the irreducibility of the mental - and the problem of mental causation are closely related. If mental phenomena do not reduce to causally effective states of the brain, then what justifies the belief that mental phenomena have causal powers? If mental causes do not reduce to physical causes, then how to tell when - or whether - the mental causes in terms of which human actions are explained are actually effective? I argue that this - how to decide when mental causes really are effective - is the real problem of mental causation. The motivation to explore and defend a non-reductive position stems from the belief that reductive physicalism leads to serious ethical problems. My claim is that Davidson's and von Wright's ultimate reason to defend a non-reductive view comes back to their belief that a reductive understanding of human nature would be a narrow and possibly harmful perspective. The final conclusion of my thesis is that von Wright's and Davidson's positions provide a starting point from which the current scientistic philosophy of mind can be critically further explored in the future.

Leveraging Lean Production Philosophy for Rationalising a Non-Linear Representation of Construction Specifications

This paper presents an approach, based on Lean production philosophy, for rationalising the processes involved in the production of specification documents for construction projects. Current construction literature erroneously depicts the process for the creation of construction specifications as a linear one. This traditional understanding of the specification process often culminates in process-wastes. On the contrary, the evidence suggests that though generalised, the activities involved in producing specification documents are nonlinear. Drawing on the outcome of participant observation, this paper presents an optimised approach for representing construction specifications. Consequently, the actors typically involved in producing specification documents are identified, the processes suitable for automation are highlighted and the central role of tacit knowledge is integrated into a conceptual template of construction specifications. By applying the transformation, flow, value (TFV) theory of Lean production the paper argues that value creation can be realised by eliminating the wastes associated with the traditional preparation of specification documents with a view to integrating specifications in digital models such as Building Information Models (BIM). Therefore, the paper presents an approach for rationalising the TFV theory as a method for optimising current approaches for generating construction specifications based on a revised specification writing model.