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...

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)

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.

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)

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)

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)

There is an ongoing debate in the philosophical and jurisprudential literature regarding the nature and possibility of Contract theory. On one hand are those who argue (or assume) that there is, or should be, a single, general, universal theory of Contract Law, one applicable to all jurisdictions and all times. On the other hand are those who assert that Contract theory should be localized to particular times and places, perhaps even with different theories for different types of agreements. This article (...) considers one facet of this debate: evaluating the relevance of the fact that the remedies available for breach of contract can vary significantly from one jurisdiction to another. This wide variation in remedies for breach of a (contractual) promise is one central difference between promises in morality and enforceable agreements in law. The article asserts that variation of remedies strongly supports the conclusion that there is (and can be) no general, universal theory of Contract Law. (shrink)

Our world is full of fictional devices that let people feel better about their situation - through deception and self-deception. The legal realist, Felix Cohen, argued that law and legal reasoning is full of similarly dubious labels and bad reasoning, though of a special kind. He argued that judges, lawyers and legal commentators allow linguistic inventions and conventions to distort their thinking. Like the ancient peoples who built idols out of stone and wood and then asked them for assistance and (...) guidance, Cohen argued that within the legal world people tend to create legal concepts and then think that these concepts do or should determine how social disputes must be The philosopher Ludwig Wittgenstein similarly spoke of the way we fool ourselves, when we use a noun for some matter, and then assume that, because nouns usually name objects, here as well there must be some entity that exists out in the world, whose nature can be discovered. Our grammar misleads us. This article explores some of the ways, particularly in contract law and family law, that we have been led astray by our legal language. Because we only rarely have an Oliver Wendell Holmes, Jr., or a Felix Cohen to keep us in line, we need to learn to do the important work ourselves. The great danger is the way that inaccurate language can so easily change our substantive views about what is natural or what is right. If transparency is difficult in legal language, much of the fault may lie with lawyers and judges who want to make their conclusions sound more reasonable, less controversial, and more appealing: so we call it "consent" and "waiver" and "meeting of the minds" and "best interests of the child," when it is in fact something quite different. And at least in the common law systems the process of reasoning and law-making is tied strongly to the past. The new case has to fit into the categories and concepts that we created for a prior case - fitting cases that came up hundreds of years before, in a different society, with different technology, facing a different set of problems. So judges often end up stretching the meaning of concepts, or using legal fictions to bridge the old rule with the new equities. We may never entirely escape the tendency of our own language to mislead us, but clarity in thought and analysis is something towards which we should struggle constantly, and with determination. (shrink)

This is a book review of Grégoire Webber, Paul Yowell, Richard Ekins, Maris Köpcke, Bradley W. Miller, and Francisco J. Urbina, "Legislated Rights" (Cambridge U. Pr., 2018).

Law and economics scholarship has traditionally analyzed efficient breach cases monolithically. By grouping efficient breach cases together, this literature treats the subjective motives and the distributive effects of the breach as immaterial. The Restatement (Third) of Restitution and Unjust Enrichment introduced a distinction based on the intent and the effects of the breach, allowing courts to use disgorgement remedies in cases of ‘opportunistic’ breach of contract (i.e., ‘deliberate and profitable’ breaches). In this article, we evaluate this approach, focusing on the (...) effects of disgorgement remedies on allocative and productive efficiency, information-forcing and competitive effects, and restraint of breach-searching incentives. We show that, even from a purely consequentialist perspective, disgorgement remedies may be normatively warranted, especially when involving sellers’ breach. Recent experimental evidence revealed that the preferences and reactions of ordinary people are in line with our evaluation of the effects of opportunistic breach. (shrink)

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)

The essays in this special issue of HEC Forum provide reflections that make explicit the implicit anthropology that our current pandemic has brought but which in the medical ethics literature around COVID-19 has to a great extent ignored. Three of the essays are clearly “journalistic” as a literary genre: one by a hospital chaplain, one by a medical student in her pre-clinical years, and one by a fourth-year medical student who reports her experience as she completed her undergraduate clerkships and (...) applied for positions in graduate medical education. Other essays explore the pandemic from historical, sociological, and economic perspectives, particularly how triage policies have been found to be largely blind to structural healthcare disparities, while simultaneously unable to appropriately address those disparities. Central issues that need to be addressed in triage are not just whether a utilitarian response is the most just response, but what exactly is the greatest good for the greatest number? Together, the essays in this special issue of HEC Forum create a call for a more anthropological approach to understanding health and healthcare. The narrow approach of viewing health as resulting primarily from healthcare will continue to hinder advances and perpetuate disparities. Health outcomes result from a complex interaction of various social, economic, cultural, historical, and political factors. Advancing healthcare requires contextualizing the health of populations amongst these factors. The COVID-19 pandemic has made us keenly aware of how interdependent our health as a society can be. (shrink)

Ecocentrism has to establish an intrinsic connection between its basic value postulate of the non-instrumental value of the nonhuman world and a conception of human flourishing, on pain of failure to motivate acceptance of its social and political prescriptions. This paper explores some ideas recently canvassed by ecocentrists such as Robyn Eckersley, designed to establish this connection – transpersonal ecology, autopoietic value theory and ecofeminism – and finds them open to objection. An alternative approach is developed which concentrates on the (...) connection between non-human nature and person-hood, via the phenomenon of culture. Persons are conceived of as essentially culture-creators, and the fact of their embodiment in ecosystems is argued to be essential to their activities as culture creators. The variety and integrity of such systems thus turns out to be essential for the flourishing of what is essential to personhood. This means that ecocentrism has to be abandoned in its pure form, and replaced with person-centrism, but this conclusion is argued for on the basis of the extension of the concept of the self – a strategy often endorsed by ecocentrists themselves. (shrink)

The values which are definitive of the humanist project, such as freedom and self-determination, are of central concern to environmentalism. This means, according to Lewis P. Hinchman, that environmentalists should seek a rapprochement with humanism, rather than rejecting it for its apparent anthropocentrism. He argues that this requires in turn the acceptance of those approaches to human self-understanding which are central to the hermeneutic traditions and the rejection of naturalist approaches, such as sociobiology, which is accused of producing deterministic, reifying, (...) reductionist, dehumanising forms of understanding of human beings and human life. This paper seeks to show that sociobiology does not pose the kinds of threat to humanism and environmentalism outlined by Hinchman. (shrink)

A concept for teaching business ethics and its relationship with business law is developed. Legal regulations form the essential boundaries of the business game. Many students do not realize the degree to which law is dependent upon ethical actors to achieve its objectives. At least three examples are insightful in this regard: First, the interpretive requirements of legal rules often rely on the ethical character of the interpreting business actor to achieve their objectives. Second, law does not prohibit harms from (...) occurring, it only associates costs with behaviors. Third, law cannot compensate society for non-fungible harms. Legal regulations do not sustain the orderly function of society without ethical business actors. (shrink)

A concept for teaching business ethics and its relationship with business law is developed. Legal regulations form the essential boundaries of the business game. Many students do not realize the degree to which law is dependent upon ethical actors to achieve its objectives. At least three examples are insightful in this regard: First, the interpretive requirements of legal rules often rely on the ethical character of the interpreting business actor to achieve their objectives. Second, law does not prohibit harms from (...) occurring, it only associates costs with behaviors. Third, law cannot compensate society for non-fungible harms. Legal regulations do not sustain the orderly function of society without ethical business actors. (shrink)