This review article examines David Enoch’s recent book Taking Morality Seriously and focuses on ‘the deliberative indispensability of irreducibly normative truths’ which is a central argument of the book. I will show that this important and original argument as it stands fails. I will also argue that if Enoch had embraced all the consequences of his argument, then he would have opened up a more promising line of argument via which to defend the robust realism of normative truths. I will, (...) therefore, attempt to defend a modified version of robust realism of normative truths and, in so doing, I will show how all the implications of Enoch’s insight can fully be embraced. I will finally demonstrate how this modified version illuminates some Dworkinian insights on the nature of law, but also undermines Dworkin’s theory of constructive interpretation. (shrink)
Can Hart's non-cognitivism be reconciled with his rejection of the predictive and sanction-based explanations of law? This paper analyses Hart's notion of the internal point of view and focuses on the notion of acceptance of a rule along the lines of a non-cognitivist understanding of intentional actions. It is argued that a non-cognitivist analysis of acceptance of rules is incomplete and parasitic on a more basic or primary model of acceptance that does not involve mental states. This basic or primary (...) model of acceptance explains actions in terms of other actions and in terms of reasons for actions that are both presented as good-making characteristics and transparent to the agent. If Hart's internal point of view is able to work as the key argument to reject predictive and sanction-based explanations of law, it needs to make the outward approach of intentional action basic or primary rather than rely on an inward approach such as the one advanced by non-cognitivism. (shrink)
In the first part of this paper, I discuss the different kinds of objectivity; general and legal objectivity more specifically. In the second part, I endeavour to explain the two main views that have been advanced to answer four core questions on legal objectivity. The first is whether moral and legal values are objective. Second, what is the nature of the relationship between legal and moral values? The third is whether, due to the specific nature of law, we should consider (...) a domainspecific conception of objectivity for legal values. The fourth concerns whether there is a correspondence between legal values and legal facts. What is the explanation of the platitudes about the nature of law such as that law is reasongiving, normative or authoritative in character? In other words, do legal facts have a place in our 'disenchanted' or naturalistic (in the scientific sense) understanding of the world. In the final section of this paper, I evaluate naturalism and nonnaturalism in law and consider the future of the debate and its relevance for understanding the connection between law, morality and legal normativity. (shrink)
Rodriguez-Blanco examines Enrico Pattaro's effort to explain the normativeness or binding force of the law. Pattaro defends the controversial claim that norms are motives of behaviour and provides a rich explanation of how these motives, i.e., beliefs in the human brain, move human agency. In her review, Rodriguez-Blanco challenges Pattaro's empirical conception of human agency.
Colemanand Shapiro have recently advanced a second at- tempt to reconcile Hart’s practice theory of rules and the idea of the normativity of law; i.e., the idea that legal rules qua social rules give reasons for actions and, in some circumstances create and impose duties and obligations. Their argumentative strategy is to resort to elements in Bratman’s work on shared agency and planning, though they introduce important and substantive modiﬁcations to Bratman’s own explanation. Bratman describes his own theory as a (...) modest theory of the will where the notion of planning plays a fundamental role. Both Shapiro’s and Coleman’s application of Bratman’s planning theory of agency to an authority structure such as law is impressive, but a number of objections can be levelled, with the intention of grasping both the nature of authority structures and the normativity of law. Although I have referred to Shapiro’s and Coleman’s applica- tions as being similar to one another, the diﬀerences are sub- stantive and important. I will scrutinise both Shapiro’s and Coleman’s explanations of ‘shared agency’ and discuss the objections that can be raised against each application. (shrink)
Judges and lawyers believe that international law, customary law, and legal systems such as the Third Reich or apartheid law in South Africa are law. But how do we explain the fact that there is one concept of law when there are different conceptions of law with a variety of different features? Finnis, inspired by the Aristotelian notion of central case, adumbrates the idea that the concept of law might be unified by a primary concept which is the concept of (...) “law as practical reason”; that is, law conceived from an ethical perspective. He advances two arguments to defend his methodology: the conceptual and the functional. Contra Finnis, the paper shows that neither the conceptual nor the functional argument can successfully support the view that “law as practical reason” is the central case of the concept of law. The study clarifies the Aristotelian notion of central case and illustrates the mistaken application of this notion to the concept of law. However, we also argue that Finnis's insight–the idea that all the different conceptions of law might be unified for the purposes of theoretical research–is fundamental and appealing. This paper aims to reconstruct Finnis's insight through the model of core resemblance. The result is that the different conceptions of law can be unified by resemblance to the concept of “law as practical reason,” though there is no identity among the different conceptions of law. (shrink)
Two methodological claims in Hart's TheConceptofLaw have produced perplexity: that it is a book on 1 and that it may also be regarded as an essay in 2 Are these two ideas reconcilable? We know that mere analysis of our legal concepts cannot tell us much about their properties, that is, about the empirical aspect of law. We have learned this from philosophical criticisms of conceptual analysis; yet Hart informs us that analytic jurisprudence can be reconciled with descriptive sociology. The (...) answer to this puzzle lies in the notion of nonambitious conceptual analysis. The theorist analyzes concepts but accepts the limitations of conceptual analysis and therefore uses empirical knowledge and substantive arguments to explain, refine, or perhaps refute initial insights provided by intuitions. This is the conclusion that this paper arrives at as an argumentative strategy to defend Hart's legal theory from the criticisms of Stavropoulos and Dworkin. The latter argues that Hart's legal theory cannot explain theoretical disagreements in law because he relies on a shared criterial semantics. Stavropoulos aims to show that Hart's semantics is committed to ambitious conceptual analysis and relies on the usage of our words as a standard of correctness. Both attacks aim to show that the semantic sting stings Hart's legal theory. This essay refines both challenges and concludes that not even in the light of the most charitable interpretation of these criticisms is Hart's legal theory stung by the semantic sting. This study defends the view that Hart's methodological claims were modest and that he was aware of the limits of conceptual analysis as a philosophical method. He was, this study claims, far ahead of his time. (shrink)