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Profile: Kenneth M. Ehrenberg (University of Alabama)
  1.  79
    Kenneth M. Ehrenberg (2015). Law’s Artifactual Nature: How Legal Institutions Generate Normativity. In George Pavlakos & Veronica Rodriguez-Blanco (eds.), Reasons and Intentions in Law and Practical Agency. Cambridge University Press 247-266.
    I argue that law is best understood as an institutionalized abstract artifact. Using the ideas of John Searle on institutions and Amie Thomasson on artifacts, I show how the law is capable of generating new reasons for action, arguing against recent work by David Enoch who holds that legal reason-giving is ultimately a form of triggering conditional reasons.
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  2.  76
    Kenneth M. Ehrenberg (forthcoming). Law as Plan and Artifact. Jurisprudence 7.
    Scott Shapiro’s planning theory of law is assessed in terms of its methodology. Focusing on problems with Shapiro’s solution to the problem of the persistence of law and his use of the notion of law as self-certifying, I argue that the theory would be better served by embracing law’s artifactual nature via a better account of its institutionality.
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  3.  11
    Kenneth M. Ehrenberg (forthcoming). The Functions of Law. Oxford University Press.
    What is the nature of law and what is the best way to discover it? This book argues that law is best understood in terms of the social functions it performs wherever it is found in human society. In order to support this claim, law is explained as a kind of institution and as a kind of artefact. To say that it is an institution is to say that it is designed for creating and conferring special statuses to people (...)
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  4.  61
    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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  5. 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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  6. 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 (...)
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  7. 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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  8.  67
    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.
    Joseph Raz argues that legal authority includes a claim by the law to replace subjects’ contrary reasons. I reply that this cannot be squared with the existence of choice-of-evils defenses to criminal prosecutions, nor with the view that the law has gaps (which Raz shares). If the function of authority is to get individuals to comply better with reason than they would do if left to their own devices, it would not make sense for law to claim both to pre-empt (...)
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  9.  32
    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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  10.  56
    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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  11.  97
    Kenneth M. Ehrenberg (1999). Social Structure and Responsibility. Loyola Poverty Law Journal 5:1-26.
    Economic success in competitive systems requires resource redistribution to those who fail. Once we recognize that success in competitive endeavors depends meaningfully on the failure of others, policy implications that involve strong redistributive mechanisms should be drawn. Particular attention is paid to the role of education in fostering a sense of self-esteem necessary to counter the effects of internalized competition.
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  12.  38
    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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  13.  70
    Kenneth M. Ehrenberg (2003). Procedural Justice and Information in Conflict-Resolving Institutions. Albany Law Review 67:167-209.
    Notions of procedural justice alone are sufficient to support evidentiary exclusions in a wide variety of legal and law-like institutions that focus on conflict resolution, including courts. Special attention is paid to the relevance and need for exclusion of parties’ own assessments of the value of their claims.
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  14.  16
    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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  15.  26
    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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  16. Kenneth M. Ehrenberg (2016). Functions of the Law. Oxford University Press Uk.
    What is the nature of law and what is the best way to discover it? This book argues that law is best understood in terms of the social functions it performs wherever it is found in human society. In order to support this claim, law is explained as a kind of institution and as a kind of artefact. To say that it is an institution is to say that it is designed for creating and conferring special statuses to people (...)
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  17. Kenneth M. Ehrenberg (2014). Gardner, John.Law as a Leap of Faith.Oxford: Oxford University Press, 2012. Pp. 314. $68.00 ; $30.00 ; $45.49. Ethics 124 (4):899-905.
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  18. Kenneth M. Ehrenberg (2013). Pattern Languages & Institutional Facts: Functions & Coherence in Law. In Michał Araszkiewicz & Jaromir Savelka (eds.), Coherence: Insights from Philosophy, Jurisprudence and Artificial Intelligence. Springer 155-166.
    Under John Searle’s theory of institutional facts, the law can be understood both as an institution governed by foundational documents and practices, and as a method for creating new institutions through the codification of the assignment of functions, usually of the form ‘X counts as Y in circumstances C’. The architect Christopher Alexander’s notion of pattern languages, schematic templates for problem-solving widely adopted by computer programmers, can be developed within a legal system as a coherence constraint on the assignment of (...)
     
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