Brian Flanagan | National University of Ireland, Maynooth (original) (raw)

Papers by Brian Flanagan

Australasian Journal of Philosophy, 2020

Most theorists agree that our social order includes a distinctive legal dimension. A fundamental ... more Most theorists agree that our social order includes a distinctive legal dimension. A fundamental question is whether reference to specific legal phenomena always involves a commitment to a particular moral view. Whereas many philosophers advance the 'positivist' claim that any correspondence between morality and the law is just a function of political circumstance, natural law theorists insist that law is intrinsically moral. Each school claims the crucial advantage of consistency with our folk concept. Drawing on the notion of dual character concepts, we develop a set of hypotheses about the intuitive relation between a rule's moral and legal aspects. We then report a set of studies that unexpectedly conflict with the predictions of legal positivists. Intuitively, an evil rule is not a fully-fledged instance of LAW.

South African Journal on Human Rights, 2006

A treatment of recent criticism of judicial review concentrating on its theoretical consistency, ... more A treatment of recent criticism of judicial review concentrating on its theoretical consistency, scope and the use it makes of factual premises regarding the composition of judicial argument and the practice of democratic assemblies. Focussing on the work of Jeremy Waldron and Mark Tushnet and to a lesser extent that of Thomas Poole, it concludes that there are serious difficulties with the liberal challenge on each front.

The Denning Law Journal, 2012

The point of judicial recusal is at once obvious and elusive. The idea of a partial judge immedi... more The point of judicial recusal is at once obvious and elusive. The idea of a partial judge immediately grates on our sense of fairness. Almost invariably, the normative basis of judicial impartiality is traced to what is described as ‘natural justice’;1 specifically the celebrated maxims of nemo iudex in causa sua2 and audi alteram partem.3 But the relationship of this moral bedrock to the exigencies and settled practices of constitutional adjudication is far from straightforward. This article will focus on the implications of the latter principle – perhaps best translated as a standard of judicial open-mindedness regarding the subject matter of a dispute. Despite its moral immediacy, there are serious theoretical objections, best described as ‘realist,’ to an expansive conception of judicial open-mindedness. Likewise, at a practical level, the institution of the dissenting opinion can be seen as diluting the duty to keep an open mind, at least in jurisdictions such as the US w...

Philosophical Studies, 2017

Discoveries about attitude aggregation have prompted the re-emergence of non-reductionism, the th... more Discoveries about attitude aggregation have prompted the re-emergence of non-reductionism, the theory that group agency is irreducible to individual agency. This paper rejects the revival of non-reductionism and, in so doing, challenges the preference for a unified account, according to which, agency, in all its manifestations, is rational. First, I offer a clarifying reconstruction of the new argument against reductionism (due to Christian List and Philip Pettit). Second, I show that a hitherto silent premise, namely, that an identified group intention need not be determined by member attitudes according to a rule, e.g., majority, is false. Third, I show that, on rejecting this premise, the aggregation results lead instead to the conclusion that, in contrast to individual agency, group agency is non-rational. Keywords Group agency Á Collective intentionality Á Judgement aggregation Á Social ontology Á Reductionism Á Discursive dilemma There are many scenarios in which a set of individual acts appears to constitute a group act rather than merely a sum of individual acts. Accounting for this appearance, theorists posit that a group itself may act. Some scenarios feature member-wide consensus on the act's performance, e.g., a sports team executing a pass play (Searle 1990), a team of volunteers painting a house (Bratman 1992), a couple walking on a beach (Gilbert 1990). Accordingly, theorists agree that a group may act if, '[e]ach participant… wills [the shared activity]' (Roth 2010). But whilst sufficient for group action, member unanimity is not necessary. Scenarios that

Using data from a 2011 judicial survey that drew responses from the entire New Zealand Supreme Co... more Using data from a 2011 judicial survey that drew responses from the entire New Zealand Supreme Court, I model the Court's practice of transnational argument. The data suggest that whereas foreign law often appears to contribute to the Court's legal conclusions, at times its contribution derives from an associated social reward, and at others is flatly illusory. I argue that these findings, in tandem with those of the larger survey, indicate that the law reports systematically misrepresent all judicial disagreement as legal disagreement, thus lending support to the claim that in controversial cases, the law is indeterminate.

Metaphilosophy, 2014

Saul Kripke's thought experiments on the reference of proper names target the theory that the pro... more Saul Kripke's thought experiments on the reference of proper names target the theory that the properties which identify a term's referent are the subject of an implicit agreement. Recently, survey versions of the experiments have been thought to show that intuitions about reference are culturally contingent. Proposing a revisionary interpretation, this article argues, first, that Kripke's Cicero/ Feynman experiment reveals that every name user knows enough to be capable of identifying the same individual as the name's most informed users. Second, the article shows that Kripke's presentation of the Gödel/Jonah experiment is ambiguous with respect to the properties attributed to the referent. Disambiguated, the experiment fails to reveal that name users may be mistaken in every unique property they attribute. Since the experiment's ambiguity is replicated in survey presentations, cross-cultural variation in survey response fails to show that intuitions about reference are culturally contingent.

Ohio Northern University Law Review, 2008

/technology/ 29wikipedia.html?ex=1184731200&en=70f2d3a8a7ac4052&ei=5070 (discussing the recent tr... more /technology/ 29wikipedia.html?ex=1184731200&en=70f2d3a8a7ac4052&ei=5070 (discussing the recent trend towards judicial reliance on Wikipedia, the free online collaborative encyclopedia). 2. Brown v. Bd. of Educ., 347 U.S. 483 (1954). In the opinion's famous footnote eleven, Chief Justice Earl Warren supported the Court's conclusion as to the constitutionality of separate-but-equal schooling by reference to several studies on the harms of racially segregated education. The move drew heavy fire from commentators on both sides of the debate. Id. at 495. See ANCHETA, supra note 1, at 1-2. 3. Judicial opinion itself can attest to this. In his dissent, Justice Thomas, joined by Justice Scalia, noted that "[t]he Court relies heavily on social science evidence to justify its deference," and that "no social science has disproved the notion that this discrimination engenders attitudes of superiority or, alternatively, provokes resentment among those who believe that they have been wronged by the government's use of race." Grutter v Bollinger, 539, 364, 373 U.S. 306 (2003) (Thomas, J., dissenting) (citation omitted). In his concurrence, Justice Thomas criticises the dissent for "unquestioningly cit[ing] certain social science research to support propositions that are hotly disputed among social scientists," and for seeking to "leave our equal-protection jurisprudence at the mercy of elected government officials evaluating the evanescent views of a handful of social scientists," Parents Involved in Cmty. Sch. v.

International and Comparative Law Quarterly, 2011

This is a survey study of 43 judges from the British House of Lords, the Caribbean Court of Justi... more This is a survey study of 43 judges from the British House of Lords, the Caribbean Court of Justice, the High Court of Australia, the Constitutional Court of South Africa, and the Supreme Courts of Ireland, India, Israel, Canada, New Zealand and the United States on the use of foreign law in constitutional rights cases. We find that the conception of apex judges citing foreign law as a source of persuasive authority (associated with Anne-Marie Slaughter, Vicki Jackson and Chris McCrudden) is of limited application. Citational opportunism and the aspiration to membership of an emerging international ‘guild’ appear to be equally important strands in judicial attitudes towards foreign law. We argue that their presence is at odds with Ronald Dworkin's theory of legal objectivity, and is revealed in a manner meeting his own methodological standard for attitudinal research.Wordsworth's words, written about the French Revolution, will, I hope, still ring true: Bliss was it in that ...

Acta Analytica, 2012

One way to discredit the suggestion that a statement is true just in virtue of its meaning is to ... more One way to discredit the suggestion that a statement is true just in virtue of its meaning is to observe that its truth is the subject of genuine disagreement. By appealing to the case of the unorthodox philosopher, Timothy Williamson has recast this response as an argument foreclosing any appeal to analyticity. Reconciling Quine's epistemological holism with his treatment of the 'deviant logician', I show that we may discharge the demands of charitable interpretation even while attributing trivial semantic error to Williamson's philosophers. Williamson's effort to generalize the argument from disagreement therefore fails. Keywords Analyticity. Disagreement. Epistemological holism. Williamson, Timothy. Quine, Willard Van Orman One way to discredit the suggestion that a statement is analytic, that is, is true just in virtue of its meaning, is to observe that it has been the subject of disagreement. The argument from disagreement is an elaboration of the paradox of analysis-the ancient problem of how a statement can be both analytic and informative-and is a central feature of contemporary debate in a variety of fields, notably metaethics, 1 legal philosophy, 2 and philosophy of language. 3 In his 2007 book, The Philosophy of Philosophy, and in contributions to a series of subsequent symposia, Timothy Williamson recasts the argument from disagreement as an argument foreclosing any appeal to analyticity. 4 To succeed, Williamson must

Oxford Journal of Legal Studies, 2009

Many theorists take the view that literal meaning can be one of a number of factors to be weighed... more Many theorists take the view that literal meaning can be one of a number of factors to be weighed in reaching a legal interpretation. Still others regard literal meaning as having the potential to legally justify a particular outcome. Building on the scholarly response to HLA Hart's famous 'vehicles in the park' hypothetical, this article presents a formal argument that literal meaning cannot be decisive of what's legally correct, one which, unusually, makes no appeal to controversial theories within philosophy of language or literary criticism. If the argument is sound, it follows that an enactment's literal meaning neither weighs in the determination of correct legal outcomes nor permits the application of a sequencing model, ie a non-monotonic logic, to its interpretation. These implications are considerably more controversial within contemporary legal theory than the idea that a statute's literal meaning is not necessarily its legal meaning. Yet we see that, given an intuitive notion of legal truth, they follow from it nonetheless.

Journal of Moral Philosophy, 2013

A provision’s legal meaning is thought by many to be a function of its literal meaning. To explai... more A provision’s legal meaning is thought by many to be a function of its literal meaning. To explain the appearance that lawyers are arguing over a provision’s legal meaning and not just over which outcome would be more prudent or morally preferable, some legal literalists claim that a provision’s literal meaning may be causally, rather than conventionally, determined. I argue, first, that the proposed explanation is inconsistent with common intuitions about legal meaning; second, that explaining legal disagreement as a function of the causally determined meanings of moral terms requires, but lacks, a causal semantics which is clearly consistent with the scope of moral disagreement. Finally, I suggest that an element of the theory of language invoked by ‘causal’ legal literalists might be better deployed as part of an intentionalist account of legal practice.

Ratio Juris, 2011

for their comments on earlier drafts. 1 In this context, an utterance's "literal meaning" is the ... more for their comments on earlier drafts. 1 In this context, an utterance's "literal meaning" is the proposition generated by the symbols in question and the appropriate community's conventions on linguistic meaning.

Australasian Journal of Philosophy, 2020

Most theorists agree that our social order includes a distinctive legal dimension. A fundamental ... more Most theorists agree that our social order includes a distinctive legal dimension. A fundamental question is whether reference to specific legal phenomena always involves a commitment to a particular moral view. Whereas many philosophers advance the 'positivist' claim that any correspondence between morality and the law is just a function of political circumstance, natural law theorists insist that law is intrinsically moral. Each school claims the crucial advantage of consistency with our folk concept. Drawing on the notion of dual character concepts, we develop a set of hypotheses about the intuitive relation between a rule's moral and legal aspects. We then report a set of studies that unexpectedly conflict with the predictions of legal positivists. Intuitively, an evil rule is not a fully-fledged instance of LAW.

South African Journal on Human Rights, 2006

A treatment of recent criticism of judicial review concentrating on its theoretical consistency, ... more A treatment of recent criticism of judicial review concentrating on its theoretical consistency, scope and the use it makes of factual premises regarding the composition of judicial argument and the practice of democratic assemblies. Focussing on the work of Jeremy Waldron and Mark Tushnet and to a lesser extent that of Thomas Poole, it concludes that there are serious difficulties with the liberal challenge on each front.

The Denning Law Journal, 2012

The point of judicial recusal is at once obvious and elusive. The idea of a partial judge immedi... more The point of judicial recusal is at once obvious and elusive. The idea of a partial judge immediately grates on our sense of fairness. Almost invariably, the normative basis of judicial impartiality is traced to what is described as ‘natural justice’;1 specifically the celebrated maxims of nemo iudex in causa sua2 and audi alteram partem.3 But the relationship of this moral bedrock to the exigencies and settled practices of constitutional adjudication is far from straightforward. This article will focus on the implications of the latter principle – perhaps best translated as a standard of judicial open-mindedness regarding the subject matter of a dispute. Despite its moral immediacy, there are serious theoretical objections, best described as ‘realist,’ to an expansive conception of judicial open-mindedness. Likewise, at a practical level, the institution of the dissenting opinion can be seen as diluting the duty to keep an open mind, at least in jurisdictions such as the US w...

Philosophical Studies, 2017

Discoveries about attitude aggregation have prompted the re-emergence of non-reductionism, the th... more Discoveries about attitude aggregation have prompted the re-emergence of non-reductionism, the theory that group agency is irreducible to individual agency. This paper rejects the revival of non-reductionism and, in so doing, challenges the preference for a unified account, according to which, agency, in all its manifestations, is rational. First, I offer a clarifying reconstruction of the new argument against reductionism (due to Christian List and Philip Pettit). Second, I show that a hitherto silent premise, namely, that an identified group intention need not be determined by member attitudes according to a rule, e.g., majority, is false. Third, I show that, on rejecting this premise, the aggregation results lead instead to the conclusion that, in contrast to individual agency, group agency is non-rational. Keywords Group agency Á Collective intentionality Á Judgement aggregation Á Social ontology Á Reductionism Á Discursive dilemma There are many scenarios in which a set of individual acts appears to constitute a group act rather than merely a sum of individual acts. Accounting for this appearance, theorists posit that a group itself may act. Some scenarios feature member-wide consensus on the act's performance, e.g., a sports team executing a pass play (Searle 1990), a team of volunteers painting a house (Bratman 1992), a couple walking on a beach (Gilbert 1990). Accordingly, theorists agree that a group may act if, '[e]ach participant… wills [the shared activity]' (Roth 2010). But whilst sufficient for group action, member unanimity is not necessary. Scenarios that

Using data from a 2011 judicial survey that drew responses from the entire New Zealand Supreme Co... more Using data from a 2011 judicial survey that drew responses from the entire New Zealand Supreme Court, I model the Court's practice of transnational argument. The data suggest that whereas foreign law often appears to contribute to the Court's legal conclusions, at times its contribution derives from an associated social reward, and at others is flatly illusory. I argue that these findings, in tandem with those of the larger survey, indicate that the law reports systematically misrepresent all judicial disagreement as legal disagreement, thus lending support to the claim that in controversial cases, the law is indeterminate.

Metaphilosophy, 2014

Saul Kripke's thought experiments on the reference of proper names target the theory that the pro... more Saul Kripke's thought experiments on the reference of proper names target the theory that the properties which identify a term's referent are the subject of an implicit agreement. Recently, survey versions of the experiments have been thought to show that intuitions about reference are culturally contingent. Proposing a revisionary interpretation, this article argues, first, that Kripke's Cicero/ Feynman experiment reveals that every name user knows enough to be capable of identifying the same individual as the name's most informed users. Second, the article shows that Kripke's presentation of the Gödel/Jonah experiment is ambiguous with respect to the properties attributed to the referent. Disambiguated, the experiment fails to reveal that name users may be mistaken in every unique property they attribute. Since the experiment's ambiguity is replicated in survey presentations, cross-cultural variation in survey response fails to show that intuitions about reference are culturally contingent.

Ohio Northern University Law Review, 2008

/technology/ 29wikipedia.html?ex=1184731200&en=70f2d3a8a7ac4052&ei=5070 (discussing the recent tr... more /technology/ 29wikipedia.html?ex=1184731200&en=70f2d3a8a7ac4052&ei=5070 (discussing the recent trend towards judicial reliance on Wikipedia, the free online collaborative encyclopedia). 2. Brown v. Bd. of Educ., 347 U.S. 483 (1954). In the opinion's famous footnote eleven, Chief Justice Earl Warren supported the Court's conclusion as to the constitutionality of separate-but-equal schooling by reference to several studies on the harms of racially segregated education. The move drew heavy fire from commentators on both sides of the debate. Id. at 495. See ANCHETA, supra note 1, at 1-2. 3. Judicial opinion itself can attest to this. In his dissent, Justice Thomas, joined by Justice Scalia, noted that "[t]he Court relies heavily on social science evidence to justify its deference," and that "no social science has disproved the notion that this discrimination engenders attitudes of superiority or, alternatively, provokes resentment among those who believe that they have been wronged by the government's use of race." Grutter v Bollinger, 539, 364, 373 U.S. 306 (2003) (Thomas, J., dissenting) (citation omitted). In his concurrence, Justice Thomas criticises the dissent for "unquestioningly cit[ing] certain social science research to support propositions that are hotly disputed among social scientists," and for seeking to "leave our equal-protection jurisprudence at the mercy of elected government officials evaluating the evanescent views of a handful of social scientists," Parents Involved in Cmty. Sch. v.

International and Comparative Law Quarterly, 2011

This is a survey study of 43 judges from the British House of Lords, the Caribbean Court of Justi... more This is a survey study of 43 judges from the British House of Lords, the Caribbean Court of Justice, the High Court of Australia, the Constitutional Court of South Africa, and the Supreme Courts of Ireland, India, Israel, Canada, New Zealand and the United States on the use of foreign law in constitutional rights cases. We find that the conception of apex judges citing foreign law as a source of persuasive authority (associated with Anne-Marie Slaughter, Vicki Jackson and Chris McCrudden) is of limited application. Citational opportunism and the aspiration to membership of an emerging international ‘guild’ appear to be equally important strands in judicial attitudes towards foreign law. We argue that their presence is at odds with Ronald Dworkin's theory of legal objectivity, and is revealed in a manner meeting his own methodological standard for attitudinal research.Wordsworth's words, written about the French Revolution, will, I hope, still ring true: Bliss was it in that ...

Acta Analytica, 2012

One way to discredit the suggestion that a statement is true just in virtue of its meaning is to ... more One way to discredit the suggestion that a statement is true just in virtue of its meaning is to observe that its truth is the subject of genuine disagreement. By appealing to the case of the unorthodox philosopher, Timothy Williamson has recast this response as an argument foreclosing any appeal to analyticity. Reconciling Quine's epistemological holism with his treatment of the 'deviant logician', I show that we may discharge the demands of charitable interpretation even while attributing trivial semantic error to Williamson's philosophers. Williamson's effort to generalize the argument from disagreement therefore fails. Keywords Analyticity. Disagreement. Epistemological holism. Williamson, Timothy. Quine, Willard Van Orman One way to discredit the suggestion that a statement is analytic, that is, is true just in virtue of its meaning, is to observe that it has been the subject of disagreement. The argument from disagreement is an elaboration of the paradox of analysis-the ancient problem of how a statement can be both analytic and informative-and is a central feature of contemporary debate in a variety of fields, notably metaethics, 1 legal philosophy, 2 and philosophy of language. 3 In his 2007 book, The Philosophy of Philosophy, and in contributions to a series of subsequent symposia, Timothy Williamson recasts the argument from disagreement as an argument foreclosing any appeal to analyticity. 4 To succeed, Williamson must

Oxford Journal of Legal Studies, 2009

Many theorists take the view that literal meaning can be one of a number of factors to be weighed... more Many theorists take the view that literal meaning can be one of a number of factors to be weighed in reaching a legal interpretation. Still others regard literal meaning as having the potential to legally justify a particular outcome. Building on the scholarly response to HLA Hart's famous 'vehicles in the park' hypothetical, this article presents a formal argument that literal meaning cannot be decisive of what's legally correct, one which, unusually, makes no appeal to controversial theories within philosophy of language or literary criticism. If the argument is sound, it follows that an enactment's literal meaning neither weighs in the determination of correct legal outcomes nor permits the application of a sequencing model, ie a non-monotonic logic, to its interpretation. These implications are considerably more controversial within contemporary legal theory than the idea that a statute's literal meaning is not necessarily its legal meaning. Yet we see that, given an intuitive notion of legal truth, they follow from it nonetheless.

Journal of Moral Philosophy, 2013

A provision’s legal meaning is thought by many to be a function of its literal meaning. To explai... more A provision’s legal meaning is thought by many to be a function of its literal meaning. To explain the appearance that lawyers are arguing over a provision’s legal meaning and not just over which outcome would be more prudent or morally preferable, some legal literalists claim that a provision’s literal meaning may be causally, rather than conventionally, determined. I argue, first, that the proposed explanation is inconsistent with common intuitions about legal meaning; second, that explaining legal disagreement as a function of the causally determined meanings of moral terms requires, but lacks, a causal semantics which is clearly consistent with the scope of moral disagreement. Finally, I suggest that an element of the theory of language invoked by ‘causal’ legal literalists might be better deployed as part of an intentionalist account of legal practice.

Ratio Juris, 2011

for their comments on earlier drafts. 1 In this context, an utterance's "literal meaning" is the ... more for their comments on earlier drafts. 1 In this context, an utterance's "literal meaning" is the proposition generated by the symbols in question and the appropriate community's conventions on linguistic meaning.