Online research in philosophy

In this paper, I deploy an argument that I have developed in a number of recent papers in the service of three projects. First, I show that the most influential version of legal positivism – that associated with H.L.A. Hart – fails. The argument’s engine is a requirement that a constitutive account of legal facts must meet. According to this rational-relation requirement, it is not enough for a constitutive account of legal facts to specify non-legal facts that modally determine the legal facts. The constitutive determinants of legal facts must provide reasons for the obtaining of the legal facts (in a sense of “reason” that I develop). I show that the Hartian account is unable to meet this requirement. That officials accept a rule of recognition does not by itself constitute a reason why the standards specified in that rule are part of the law of the community. I argue that it is false that understanding the explanatory significance of officials’ acceptance of a rule is part of our reflective understanding of the nature of law. The second project of the paper is to respond to a family of objections that challenge me to explain why normative facts and descriptive facts together are better placed to provide reasons for legal facts than descriptive facts alone. A unifying theme of the objections is that explanations have to stop somewhere; descriptive facts, it is suggested, are no worse a stopping place than normative facts. Third, the paper spells out a consequence of the rational-relation requirement: if an account of what, at the most basic level, determines legal facts is true in any possible legal system, it is true in all possible legal systems. For example, if a Hartian account of legal facts is true in any possible legal system, it is true in all possible legal systems. I use this all-or-nothing result in my critique of a Hartian account, but the result is of interest in its own right.

Restitution lawyers commonly speak of the 'transfer' of value; this is misconceived. Values are realised, not transferred, only property rights are transferred. This realisation distinctly illuminates the relationship between the law of restitution and the law of tracing, strongly suggesting that trusts of traceable proceeds are not examples of restitutionary entitlements which reverse unjust enrichments.

In “How Facts Make Law” (Greenberg 2004), I argue that non-normative contingent facts are not sufficient to determine the content of the law. In the present paper, I take up a challenge raised by Enrique Villanueva (2005). He suggests that, to put it very briefly, descriptive facts can be reasons of the relevant kind. Therefore, even if the content of the law depends on reasons, it does not follow that law practices cannot themselves determine the content of the law. Villanueva proposes a value-neutral criterion – textualism. In other words, he suggests that the descriptive facts about the meaning of legal texts are themselves reasons that determine the contribution of law practices to the content of the law. This suggestion depends on too shallow a conception of the requirement of reasons. For the law to be rationally determined, it is not enough that there be some value-neutral criterion that specifies that law practices have certain consequences for the content of the law. There have to be reasons that explain why that criterion, as opposed to all others, is the legally correct one – the one that, in the relevant legal system, determines the contribution of law practices to the content of the law. Normative facts are the best candidates for such reasons. And, in fact, Villanueva’s textualist criterion derives its appeal from normative facts. Reasons play a central role in the ontology of law. The determinants of the content of the law, which include law-determining practices such as statutes and judicial decisions, influence the content of the law in a systematic way. But their influence on the content of the law cannot be brute: the determining facts must constitute reasons why particular legal facts obtain. Descriptive facts cannot themselves provide the necessary reasons: for any descriptive fact that is a candidate reason, there are many possible models of its significance for the legal facts. Given the descriptive facts alone, it is arbitrary which of the possible models is correct, and therefore what the legal facts are. Descriptive facts therefore cannot alone determine the content of the law. Normative facts are the best candidates for what needs to be added to the law practices in order for the determining facts to make rationally intelligible why particular legal facts, as opposed to others, obtain.

It is controversial what needs to be proved in order to benefit from the presumption of resulting trusts, whether all resulting trusts arise by operation of law, and whether resulting trusts are restitutionary or not. The author shows that a claimant need not prove an absence of consideration before benefitting from the presumption, and argues that, whilst presumed resulting trusts respond to intention, they arise by operation of law. Finally, the author argues that one argument for a restitutionary analysis of resulting trusts, i.e. that a transferor cannot retain a beneficial interest in property title to which he has transferred, is misconceived.

Distinctions among juristic ways of thinking -- Classification of juristic ways of thinking in the overall development of legal history.

This piece engages a basic question about legal responsibility for gains in the common law: are the gains we make at the expense of others something we need to justify, or something which we are presumptively entitled to keep? The answer to this question holds key implications for the current debate as to whether English law should retain an approach to unjust enrichment reasoning based on a plaintiff proving defined “unjust factors”, or switch to civilian-style reasoning, which is based on the “absence of any basis” for a defendant’s enrichment. The author argues that the unjust factors approach is the appropriate one, being compatible with the basic stance taken by the common law on issues of moral and legal justification, more transparent, and more coherent in the way it expresses and balances the law’s operative concerns in unjust enrichment cases. An examination of the experience in the US, Canada and in recent English cases suggests that English law would be imprudent now to change its style of reasoning. Moreover, there are few signs that its immediately likely to do so.