This introduction to legal theory provides a broad overview of the main topics and theories and covers the central issues. Written in a straightforward style, the author conveys academically challenging and often controversial ideas in a lucid manner.

Legal theory : problems and possibilities -- Individual theories about the nature of law -- Themes and principles -- Modern perspectives on legal theory.

This article focuses on issues relating to legal normativity, emphasizing the way these matters have been elaborated in the works of Kelsen and Hart and later commentators on their theories. First, in Section 2, the author offers a view regarding the nature of law and legal normativity focusing on Kelsen's work (at least one reasonable reading of it). The argument is that the Basic Norm is presupposed when a citizen chooses to read the actions of legal officials in a normative (...) way. In this Kelsenian approach, all normative systems are structurally and logically similar, but each normative system is independent of every other system – thus, law is, in this sense, conceptually separate from morality. Second, in Section 3, the author turns to Hart's theory, analyzing the extent to which his approach views legal normativity as sui generis. This approach raises questions regarding what has become a consensus view in contemporary jurisprudence: that law makes moral claims. The author shows how a more deflationary (and less morally-flavored) understanding of the nature of law is tenable, and may, in fact, work better than current conventional (morality-focused) understandings. (shrink)

Pierluigi Chiassoni’s wonderful book, Interpretation without Truth,1 is an important and welcome addition to the ongoing conversations about interpretation, legal realism, and legal truth. Chiasson...

H. L. A. Hart and the "Open Texture" of Language tries to clarify the writings of both Hart and Friedrich Waismann on "open texture". In Waismann's work, "open texture" referred to the potential vagueness of words under extreme (hypothetical) circumstances. Hart's use of the term was quite different, and his work has been misunderstood because those differences were underestimated. Hart should not be read as basing his argument for judicial discretion on the nature of language; primarily, he was putting forward (...) a policy argument for why rules should be applied in a way which would require that discretion. (shrink)

One standard criterion for there being objectivity in an area of discourse is that there is conceptual space between what someone thinks to be the case and what actually is the case. That is, participants can be mistaken. This article explores one aspect of the objectivity debate as regards law: does it make sense to say that all legal officials or practitioners in a jurisdiction are mistaken (over a significant period of time) about some legal proposition? The possibility of legal (...) error is important to discourse within and about the law. In contrast to the views of some American legal realists, it is important to deny that law is only what the officials declare it to be. However, as this article argues, claims of long-term global error in law are more problematic. The truth of legal propositions seems to be a complex function of official actions and the meaning of the terms used in authoritative legal texts. Because of the conventional nature of law, there are problems with claiming global error regarding propositions of (within) law, the existence of legal norms, and structural priorities among types of legal norms. At times, the law may in fact simply be what officials (collectively) say it is, over the long term. However, the article also notes areas where claims of long-term global error are more sustainable: where the law incorporates a term from another discourse, or where the law purports to interpret an authoritative text. (shrink)

It has become increasingly common for legal positivist theorists to claim that the primary objective of legal theory in general, and legal positivism in particular, is "explaining normativity." The phrase "explaining normativity" can be understood either ambitiously or more modestly. The more modest meaning is an analytical exploration of what is meant by legal or moral obligation, or by the authority claims of legal officials. When the term is understood ambitiously - as meaning an explanation of how conventional and other (...) empirical facts can give rise to moral obligations - as many legal positivist theorists seem to be using the phrase, the project is contrary to basic tenets of legal positivism, and has regularly led theorists to propose doubtful theories that ignore "is"/"ought" divisions. (shrink)

Consent, in terms of voluntary choice, is - or, at least, appears to be or purports to be - at the essence of contract law. Contract law, both in principle and in practice, is about allowing parties to enter arrangements on terms they choose - each party imposing obligations on itself in return for obligations another party has placed upon itself. This freedom of contract- an ideal by which there are obligations to the extent, but only to the extent, freely (...) chosen by the parties - is contrasted to the duties of criminal law and tort law, which bind all parties regardless of consent. At the same time, consent, in the robust sense expressed by the ideal of freedom of contract, is arguably absent in the vast majority of the contracts we enter these days, but its absence does little to affect the enforceability of those agreements. Consent to contractual terms often looks like consent to government: present, if at all, only under a fictional (as if) or attenuated rubric. This article explores a variety of topics relating to consent, and the role it plays in contract law doctrine and theory. The article begins by a brief examination of the nature of consent, then turns to contract doctrines that turn on the alleged absence of consent (e.g., duress and undue influence); contract rules and principles (e.g., implied terms) that turn on hypothetical consent; the challenges to consent that arise from electronic contracting and bounded rationality, and theories of contract law that emphasize consent. (shrink)

There are a growing number of general theories of contract law and of other doctrinal areas. These theories are vastly ambitious in their aims. This article explores the nature of these claims, and the motivations for offering such theories, while considering the challenges to success. It is in the nature of theorizing to seek general categories, including doctrinal categories, and to try to discover insights that hold across those categories. However, differences both within a doctrinal area and across legal systems (...) undermine the case for universal and general theories. Also, unjustifiably general theories may distract us from developing properly contextual legal rules, and might even have the unintended effect of legitimating unjust rules. (shrink)

Conceptual analysis is an integral part of legal theory, but the nature and purpose of such inquiries are often not clearly stated. In this article, I attempt to elaborate upon some of the differing reasons for conceptual analysis and what consequences may follow from choosing one objective rather than another. By showing that divergent purposes are often present in competing analyses of the same concept, I also hope to indicate why some “debates” in the jurisprudential literature are best understood as (...) theorists talking past one another. (shrink)

In his work, On Law and Justice, Alf Ross sought to explain law in scientific/empirical terms, in terms that would require no recourse to what he called “metaphysics” or “idealism.” The result is a sort of translation of legal rules and official actions into propositions of behavior, predictions of behavior, and shared ideology. The present work raises questions about the tensions within Ross's work(s), and discusses the places where Ross's analysis seems to fall short of its ambitions. In the course (...) of the discussion, the article considers issues relating to legal mistake, explanations of judicial behavior, and different types of normativity. (shrink)

In this response to eight commentaries on my article “Kelsen, Hart, and legal normativity” I clarify some points in my original analysis and agree with some comments regarding work that still needs to be done. In particular, I attempt to distinguish my position from both Berkeleyan idealism and mere subjective perception. I agree with the commentators who urge that more must be done to analyze the nature of normativity in general, and legal normativity in particular.

This chapter contains sections titled: Traditional Natural Law Theory Modern Natural Law Theory Conclusion References.

A number of important legal theorists have recently argued for metaphysically realist approaches to legal determinacy grounded in particular semantic theories or theories of reference, in particular, views of meaning and reference based on the works of Putnam and Kripke. The basic position of these theorists is that questions of legal interpretation and legal determinacy should be approached through semantic meaning. However, the role of authority (in the form of lawmaker choice) in law in general, and democratic systems in particular, (...) require that these realist solutions to the problem of legal determinacy be rejected, or at least significantly revised. (shrink)

This chapter contains section titled: History and Context Clarifications Alternative Legal Positivisms The Rule of Recognition and the Basic Norm The Divisions Within Contemporary Legal Positivism Debates and Distinctive Views Critiques of Legal Positivism Two Critics: Ronald Dworkin and John Finnis Methodological Questions and the Way Forward Conclusion Note References Further Reading.

Analyzing Law offers an important selection of the most influential and challenging work now being done in legal theory. A central focus of the essays in this work is the contribution of the well-known philosopher Jules Coleman to the various topics which are covered by the contributors.

This article offers an overview of the difficulties in Robert Alexy’s idea of law’s “claim to correctness.” The inquiry takes us deep into the nature of simple communication, back out to what it means to have a theory about the nature of law, and also in the direction of wondering about the interaction of legal theory and practical reasoning—reasoning about how we should best act. The article offers reasons to question whether law in fact makes claims, at least in any (...) straightforward sense. Even if one brackets that matter, there are reasons to raise doubts about what is in fact implicit in the act of lawmaking. At one level, an act of lawmaking does implicitly assert the authority to act in that way. Whether it also implies that the content of the action is morally good, or at least not clearly morally bad, is, at a minimum, a harder question. (shrink)

Abstract.In the debates about legal determinacy, an important but often neglected issue is what is meant in the legal context by saying that a question has a right answer. By way of a critique of A. D. Woozley's discussion of “right answers,” I try to show how this issue is connected with issues of legal truth, legal mistake, and precedent.

The existing divergence between how we talk about contract law and actual contract experience, the parties moral obligation to keep contracts and the government’s role in regulating contracts, are the three main issues addressed in this article. The analysis of this article points to a narrower and more cautious approach to contract law, not towards a general theory, but one focused on the rules of a single time and place.Resumen:La divergencia que existe entre la forma en que hablamos del derecho (...) contractual y la actual experiencia contractual, la obligación moral de las partes contratantes de mantener un contrato, y el papel del gobierno en la regulación de los contratos, son los tres asuntos principales que se abordan en este artículo. El análisis señala la perspectiva de una más estrecha y cautelosa visión del derecho contractual, pues la teoría propuesta no es una más de las teorías generales, sino una teoría desafiante enfocada en las reglas de un tiempo y lugar específico. (shrink)

If a legal rule tells us to do something, do we thereby have a reason to do it? This remains one of the most basic questions for theoretical and practical reflection on law. It is a foundational question, which many prominent contemporary theorists have discussed, yet the topic remains poorly understood. While many legal positivists have recently sought to “explain normativity”, this is likely a project inconsistent with the basic commitments of legal positivism, and, in any event, thoroughly unnecessary. Following (...) ides of M. B. E. Smith and David Enoch, this article emphasizes that law does not always (or “essentially” or paradigmatically) give reasons for action, and when it does give us reasons for action, it does so in unremarkable ways.Resumen:Si una norma jurídica nos dice que hagamos algo, ¿acaso por ese solo hecho tenemos una razón para hacerlo? Esta sigue siendo una de las preguntas más básicas para la reflexión jurídica, tanto teórica como práctica. Se trata de una cuestión fundamental que muchos teóricos importantes del derecho han discutido; aunque el tópico sigue estando muy pobremente entendido. No obstante que recientemente muchos teóricos positivistas han buscado “explicar la normatividad”, este es probablemente un proyecto inconsistente con los compromisos básicos del positivismo jurídico y, en cualquier caso, totalmente innecesario. Siguiendo las ideas de M. B. E. Smith y David Enoch, este artículo subraya que el derecho no siempre (o no “esencial” o paradigmáticamente) ofrece razones para la acción, y cuando es el caso que ofrece razones para la acción lo hace de una manera irrelevante. (shrink)

Modern legal theory contains a wide range of approaches and topics: from economic analysis of law to feminist legal theory to traditional analytical legal philosophy to a range of theories about justice. This healthy variety of jurisprudential work has created a problem: students and theorists working in one tradition may have difficulty understanding the concepts and terminology of a different tradition. This book works to make terminology and ways of thinking accessible. This dictionary covers topics from 'the autonomy of law' (...) to the 'will theory of rights', from 'autopoiesis' to 'wealth maximization', and from 'John Austin' to 'Ludwig Wittgenstein'. The most important concepts and ideas are presented in a simple dictionary format. There are also many longer entries, where the initial definition gives an accessible explanation, but the entry goes on to give more detailed information about the history of an idea and the debates currently surrounding it. (shrink)

One of the standard criticisms of John Austin’s work is that his portrayal of law, as essentially the command of a sovereign to its subjects, does not fit well with the way law is practiced or perceived by lawyers, judges, and citizens; and since the theory “fails to fit the facts,” Austin’s theory must be rejected in favor of later theories that have better fit. Many influential modern approaches to the nature of law, including Joseph Raz’s exclusive legal positivism and (...) Ronald Dworkin’s interpretivism, while they criticize the lack of fit of theories like Austin’s, themselves unapologetically offer characterizations of legal practice that deviate in significant ways from the way most people practice or perceive law. Thus, it appears that many contemporary legal theorists wish to have it both ways: they use the deviations from conventional understandings as grounds for dismissing some theories by other scholars, but forgive or overlook comparable deviations in their own theories. This article explores what general principles can be learned, or developed, regarding when or to what extent deviation from the way law is practiced and perceived can be justified in a theory of the nature of law by other theoretical gains. Additionally, the article considers whether, in light of the proper approach to fit and mistake in theory-construction, Austin’s theory of law might be a more viable alternative than is conventionally assumed. (shrink)

This article, written for the forthcoming Oxford Handbook of American Philosophy, offers an overview of the most important American contributions to legal philosophy - American legal realism, law and economics, various critical schools of jurisprudence, Lon Fuller, and Ronald Dworkin - while speculating on what might be distinctive of American legal philosophy. One obvious recurring theme is a focus on practical application in general, and adjudication (especially constitutional adjudication) in particular.

This short article was written for a collection on American legal philosophy today. It gives a brief overview of analytical legal philosophy, and speculates on why this theoretical approach has been consistently misunderstood in the United States, from the time of the legal realists until today.