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Profile: Kenneth M. Ehrenberg (University of Alabama)
  1. Kenneth M. Ehrenberg (2015). Less Evidence, Better Knowledge. McGill Law Journal 60 (2):173-214.
    In his 1827 work Rationale of Judicial Evidence, Jeremy Bentham famously argued against exclusionary rules such as hearsay, preferring a policy of “universal admissibility” unless the declarant is easily available. Bentham’s claim that all relevant evidence should be considered with appropriate instructions to fact finders has been particularly influential among judges, culminating in the “principled approach” to hearsay in Canada articulated in R. v. Khelawon. Furthermore, many scholars attack Bentham’s argument only for ignoring the realities of juror bias, admitting universal (...)
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  2. Kenneth M. Ehrenberg (2013). Functions in Jurisprudential Methodology. Philosophy Compass 8 (5):447-456.
    This paper guides the reader through the use of functions in contemporary legal philosophy: in developing those philosophies and through methodological debates over their proper role. This paper is broken into two sections. In the first I canvass the role of functions in the legal philosophies of several mid to late twentieth century Anglo-American general jurisprudents whose theories are still common topics of discussion: Ronald Dworkin, H.L.A. Hart, Lon L. Fuller, John Finnis, and Joseph Raz. In the second, I examine (...)
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  3. Kenneth M. Ehrenberg (2013). Law's Authority is Not a Claim to Preemption. In Wilfrid J. Waluchow & Stefan Sciaraffa (eds.), Philosophical Foundations of the Nature of Law. Oxford University Press. 51.
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  4. Kenneth M. Ehrenberg (2011). Critical Reception of Raz's Theory of Authority. Philosophy Compass 6 (11):777-785.
    This is a canvass to the critical reaction to Joseph Raz’s service conception of authority, as well as actual or possible replies by Raz. Familiarity is assumed with the theory itself, covered in a previous article. The article focuses primarily on direct criticisms of Raz’s theory, rather than replies developed in the context of a theorist’s wider project.
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  5. Kenneth M. Ehrenberg (2011). Joseph Raz's Theory of Authority. Philosophy Compass 6 (12):884-894.
    Joseph Raz’s theory of authority has become influential among moral, political, and legal philosophers. This article will provide an overview and accessible explanation of the theory, guiding those coming to it for the first time as to its theoretical ambitions within the wider issues of authority, and through its intricacies. I first situate the theory among philosophical examinations of authority, and then explain the theory itself in detail.
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  6. Kenneth M. Ehrenberg (2011). Law is Not (Best Considered) an Essentially Contested Concept. International Journal of Law in Context 7:209-232.
    I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating the concept of law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria generally offered for essential contestation. I then buttress this claim with the additional explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it is (...)
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  7. Kenneth M. Ehrenberg (2011). The Anarchist Official: A Problem for Legal Positivism. Australian Journal of Legal Philosophy 36:89-112.
    I examine the impact of the presence of anarchists among key legal officials upon the legal positivist theories of H.L.A. Hart and Joseph Raz. For purposes of this paper, an anarchist is one who believes that the law cannot successfully obligate or create reasons for action beyond prudential reasons, such as avoiding sanction. I show that both versions of positivism require key legal officials to endorse the law in some way, and that if a legal system can continue to exist (...)
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  8. Kenneth M. Ehrenberg (2009). Defending the Possibility of a Neutral Functional Theory of Law. Oxford Journal of Legal Studies 29 (1):91.
    I argue that there is methodological space for a functional explanation of the nature of law that does not commit the theorist to a view about the value of that function for society, nor whether law is the best means of accomplishing it. A functional explanation will nonetheless provide a conceptual framework for a better understanding of the nature of law. First I examine the proper role for function in a theory of law and then argue for the possibility of (...)
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  9. Kenneth M. Ehrenberg (2008). Archimedean Metaethics Defended. Metaphilosophy 39 (4-5):508-529.
    Abstract: We sometimes say our moral claims are "objectively true," or are "right, even if nobody believes it." These additional claims are often taken to be staking out metaethical positions, representative of a certain kind of theorizing about morality that "steps outside" the practice in order to comment on its status. Ronald Dworkin has argued that skepticism about these claims so understood is not tenable because it is impossible to step outside such practices. I show that externally skeptical metaethical theory (...)
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  10. Kenneth M. Ehrenberg (2007). The Ideal and Non-Ideal in Behavior Guidance: Reflections on Law and Buddhism in Conversation with the Dalai Lama. Buffalo Law Review 55:675-679.
    Highlighting the distinct approaches to behavior guidance employed by law and aspirational religious institutions like Buddhism, focusing on the work of Lon Fuller. There is importance to both baseline or duty-centered rules such as found primarily in criminal law and deontic morality, as well as aspirational guidance principles that are found in religious law, virtue ethics, and sometimes seen in civil law. However, the specific assumptions and aims of these two modes of guidance must be harmonized to be effective.
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  11. Kenneth M. Ehrenberg (2003). Procedural Justice and Information in Conflict-Resolving Institutions. Albany Law Review 67:167-209.
    “A logical analysis of the idea of justice would seem to be a very hazardous business. Indeed, among all evocative ideas, that of justice appears to be one of the most eminent and the most hopelessly confused.” –Chaïm Perelman1 I. INTRODUCTION One difficult question that political and moral thinkers have grappled with is how to limit justice.2 We have a tendency to see justice as potentially applicable to almost any circumstance in which values are somehow involved with interpersonal behavior.3 Yet (...)
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  12. Kenneth M. Ehrenberg (1999). Social Structure and Responsibility. Loyola Poverty Law Journal 5:1-26.
    We now live in a world with unprecedented possibilities. Technology is quickly reaching the point at which it will be within our grasp to cure any ailment: medical, psychological, or social. Yet we are already falling behind in the curative use of our newfound abilities. With our new technologies we have it within our means to feed the world and to eradicate sicknesses common only in developing countries. However, the use of these *2 abilities is governed by a social system (...)
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