Increasingly, taxonomies are being developed and used by industry practitioners to facilitate information interoperability and retrieval. Within a single industrial domain, there exist many taxonomies that are intended for different applications. Industry specific taxonomies often represent the vocabularies that are commonly used by the practitioners. Their jobs are multi-faceted, which include checking for code and regulatory compliance. As such, it will be very desirable if industry practitioners are able to easily locate and browse regulations of interest. In practice, multiple sources (...) of government regulations exist and they are often organized and classified by the needs of the issuing agencies that enforce them rather than the needs of the communities that use them. One way to bridge these two distinct needs is to develop methods and tools that enable practitioners to browse and retrieve government regulations using their own terms and vocabularies, for example, via existing industry taxonomies. The mapping from a single taxonomy to a single regulation is a trivial keyword matching task. We examine a relatedness analysis approach for mapping a single taxonomy to multiple regulations. We then present an approach for mapping multiple taxonomies to a single regulation by measuring the relatedness of concepts. Cosine similarity, Jaccard coefficient and market basket analysis are used to measure the semantic relatedness between concepts from two different taxonomies. Preliminary evaluations of the three relatedness analysis measures are performed using examples from the civil engineering and building industry. These examples illustrate the potential benefits of regulatory usage from the mapping between various taxonomies and regulations. (shrink)
Abstract. 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)
This paper investigates what the source of time asymmetry is in thermodynamics, and comments on the question whether a time-symmetric formulation of the Second Law is possible.
Institutional theory of law (ITL) reflects both continuity and change of Kelsen's legal positivism. The main alteration results from the way ITL extends Hart's linguistic turn towards ordinary language philosophy (OLP). Hart holds –like Kelsen – that law cannot be reduced to brute fact nor morality, but because of its attempt to reconstruct social practices his theory is more inclusive. By introducing the notion of law as an extra-linguistic institution ITL takes a next step in legal positivism and accounts for (...) the relationship between action and validity within the legal system. There are, however, some problems yet unresolved by ITL. One of them is its theory of meaning. An other is the way it accounts for change and development. Answers may be based on the pragmatic philosophy of Charles Sanders Peirce, who emphasises the intrinsic relation between the meaning of speech acts and the process of habit formation. (shrink)
Hacker, P. M. S. Hart's philosophy of law.--Baker, G. P. Defeasibility and meaning.--Dworkin, R. M. No right answer?-Lucas, J. R. The phenomenon of law.--Honoré, A. M. Real laws.--Summers, R. S. Naïve instrumentalism and the law.--Marshall, G. Positivism, adjudication, and democracy.--Cross, R. The House of Lords and the rules of precedent.--Kenny, A. J. P. Intention and mens rea in murder.--Mackie, J. L. The grounds of responsibility.--MacCormick, D. N. Rights in legislation.--Raz, J. Promises and obligations.--Foot, P. R. Approval and disapproval.--Finnis, J. M. (...) Scepticism, self-refutation, and the good of truth.--Barry, B. M. Justice between generations.--Feinberg, J. Harm and self-interest. (shrink)
In his important and engaging book LEGALITY, Scott Shapiro seeks to provide the motivation for the development of his own elaborate account of law by undertaking a critique of H.L.A. Hart’s jurisprudential theory. Hart maintained that every legal system is underlain by a Rule of Recognition through which the officials of the system identify the norms that belong to the system as laws. Shapiro argues that Hart’s remarks on the Rule of Recognition are confused and that his model of law (...) ─ though commendably more sophisticated than any model propounded by earlier legal positivists ─ is consequently untenable. Having thus endeavored to establish that Hart’s exposition of the nature of legality is unsustainable, Shapiro contends that a new approach is vital for progress in the philosophy of law. With his lengthy presentation of his own Planning Theory of Law, he aspires to pioneer just such an approach. -/- Except for a very terse observation in the final main section, this article will not directly assess the strengths and shortcomings of Shapiro’s piquant Planning Theory. Instead, I will defend Hart against Shapiro’s charges and will thereby undermine the motivation for the development of the Planning Theory. Nearly all the objections to Hart’s work posed by Shapiro are inapposite, or so this article will aim to show. (shrink)
Increasingly, taxonomies are being developed and used by industry practitioners to facilitate information interoperability and retrieval. Within a single industrial domain, there exist many taxonomies that are intended for different applications. Industry specific taxonomies often represent the vocabularies that are commonly used by the practitioners. Their jobs are multi-faceted, which include checking for code and regulatory compliance. As such, it will be very desirable if industry practitioners are able to easily locate and browse regulations of interest. In practice, multiple sources (...) of government regulations exist and they are often organized and classified by the needs of the issuing agencies that enforce them rather than the needs of the communities that use them. One way to bridge these two distinct needs is to develop methods and tools that enable practitioners to browse and retrieve government regulations using their own terms and vocabularies, for example, via existing industry taxonomies. The mapping from a single taxonomy to a single regulation is a trivial keyword matching task. We examine a relatedness analysis approach for mapping a single taxonomy to multiple regulations. We then present an approach for mapping multiple taxonomies to a single regulation by measuring the relatedness of concepts. Cosine similarity, Jaccard coefficient and market basket analysis are used to measure the semantic relatedness between concepts from two different taxonomies. Preliminary evaluations of the three relatedness analysis measures are performed using examples from the civil engineering and building industry. These examples illustrate the potential benefits of regulatory usage from the mapping between various taxonomies and regulations. (shrink)
What is objectivity? What is the rule of law? Are the operations of legal systems objective? If so, in what ways and to what degrees are they objective? Does anything of importance depend on the objectivity of law? These are some of the principal questions addressed by Matthew H. Kramer in this lucid and wide-ranging study that introduces readers to vital areas of philosophical enquiry.
This book is the product of a major British Academy Symposium held in 2007 to mark the centenary of the birth of H.L.A. Hart, the most important legal philosopher and one of the most important political philosophers of the twentieth century. -/- The book brings together contributions from seventeen of the world's foremost legal and political philosophers who explore the many subjects in which Hart produced influential work. Each essay engages in an original analysis of philosophical problems that were tackled (...) by Hart, some essays including extended critical discussions of his major works: The Concept of Law, Punishment and Responsibility, Causation in the Law and Law, Liberty and Morality. All the main topics of Hart's philosophical writings are featured: general jurisprudence and legal positivism; criminal responsibility and punishment; theories of rights; toleration and liberty; theories of justice; and causation in the law. (shrink)
An intricate, long, and occasionally heated debate surrounds Boltzmann’s H-theorem (1872) and his combinatorial interpretation of the second law (1877). After almost a century of devoted and knowledgeable scholarship, there is still no agreement as to whether Boltzmann changed his view of the second law after Loschmidt’s 1876 reversibility argument or whether he had already been holding a probabilistic conception for some years at that point. In this paper, I argue that there was no abrupt statistical turn. In the first (...) part, I discuss the development of Boltzmann’s research from 1868 to the formulation of the H-theorem. This reconstruction shows that Boltzmann adopted a pluralistic strategy based on the interplay between a kinetic and a combinatorial approach. Moreover, it shows that the extensive use of asymptotic conditions allowed Boltzmann to bracket the problem of exceptions. In the second part I suggest that both Loschmidt’s challenge and Boltzmann’s response to it did not concern the H-theorem. The close relation between the theorem and the reversibility argument is a consequence of later investigations on the subject. (shrink)
The Concept of Law is the most important and original work of legal philosophy written this century. First published in 1961, it is considered the masterpiece of H.L.A. Hart's enormous contribution to the study of jurisprudence and legal philosophy. Its elegant language and balanced arguments have sparked wide debate and unprecedented growth in the quantity and quality of scholarship in this area--much of it devoted to attacking or defending Hart's theories. Principal among Hart's critics is renowned lawyer and political philosopher (...) Ronald Dworkin who in the 1970s and 80s mounted a series of challenges to Hart's Concept of Law. It seemed that Hart let these challenges go unanswered until, after his death in 1992, his answer to Dworkin's criticism was discovered among his papers. In this valuable and long-awaited new edition Hart presents an Epilogue in which he answers Dworkin and some of his other most influential critics including Fuller and Finnis. Written with the same clarity and candor for which the first edition is famous, the Epilogue offers a sharper interpretation of Hart's own views, rebuffs the arguments of critics like Dworkin, and powerfully asserts that they have based their criticisms on a faulty understanding of Hart's work. Hart demonstrates that Dworkin's views are in fact strikingly similar to his own. In a final analysis, Hart's response leaves Dworkin's criticisms considerably weakened and his positions largely in question. Containing Hart's final and powerful response to Dworkin in addition to the revised text of the original Concept of Law, this thought-provoking and persuasively argued volume is essential reading for lawyers and philosophers throughout the world. (shrink)
Echoing the debate about the nature of law that has dominated legal philosophy for several decades, this volume includes essays on the nature of law and on law not as it is but as it should be. Wherever possible, essays have been chosen that have provoked direct responses from other legal philosophers, and in two cases these responses are included. Contributors include H.L.A. Hart, R.M. Dworkin, Lord Patrick Devlin, John Rawls, J.J. Thomson, J. Finnis, and T.M. Scanlon.
Herbert Lionel Adolphus Hart was born in Yorkshire in 1907 to second generation Jewish immigrants. Having won a scholarship to Oxford University, he went on to become the most famous legal philosopher of the twentieth century. -/- From 1932-40 H.L.A Hart practised as a barrister in London. He was pronounced physically unfit for military service in 1940, and was recruited by MI5, where he worked until 1945. During his time at the Bar he had continued to study philosophy and at (...) M15 his interest was further stimulated by his philosopher colleagues in M16, Stuart Hampshire and Gilbert Ryle. After the war, Hart returned to Oxford to take up a philosophy fellowship, later to become Professor of Jurisprudence. -/- H.L.A Hart single-handedly reinvented the philosophy of law and influenced the nation's thinking in the 1960s on abortion, the legalization of homosexuality, and on capital punishment. Hart's approach to legal philosophy was at once disarmingly simple and breathtakingly ambitious, combining as it did the insights of Austin and Bentham and the new linguistic philosophy of J.L. Austin and Ludwig Wittgenstein. He sought to elucidate a concept of law which would be of relevance to all forms of law, wherever or whenever they arose: his bestselling book, The Concept of Law, has sold tens of thousands of copies worldwide. -/- In 1941, he married Jenifer Williams (a high-ranking civil servant, later an Oxford academic) with whom he had four children. Their relationship was an enduring if unconventional one. In the early 1950s, Jenifer was rumoured to be having a long-standing affair with Isaiah Berlin, one of Hart's closest friends. She was also, falsely, accused by the Sunday Times of having been a Russian spy, an allegation which was all the more scandalous given Hart's position at MI5 during the War. -/- Nicola Lacey draws on Hart's previously unpublished diaries and letters to reveal a complex inner life. Outwardly successful, Hart was in fact tormented by doubts about his intellectual abilities, his sexual identity and his capacity to form close relationships. Her biography also sheds fascinating light on the origins of his ideas, and assesses his overall contribution. Above all, it chronicles of a life which had a depth ands impact far greater than many of Hart's readers have realized. (shrink)
George, B. J. Jr. The evolving law of abortion.--Guttmacher, A. F. The genesis of liberalized abortion in New York: a personal insight.--Callahan, D. Abortion: some ethical issues.--Jakobovits, I. Jewish views on abortion.--Drinan, R. F. The inviolability of the right to be born.--Schwartz, R. A. Abortion on request: the psychiatric implications.--Fleck, S. A psychiatrist's views on abortion.--Niswander, K. R. Abortion practices in the United States: a medical viewpoint.--Macintyre, M. N. Genetic risk, prenatal diagnosis, and selective abortion.--Messerman, G. A. Abortion counselling: shall (...) women be permitted to know?--Pilpel, H. F. and Zuckerman, R. J. Abortion and the rights of minors. (shrink)
On liberty, by J. S. Mill.--Morals and the criminal law, by P. Devlin.--Immorality and treason, by H. L. A. Hart.--Lord Devlin and the enforcement of morals, by R. Dworkin.--Sins and crimes, by A. R. Louch.--Morals offenses and the model penal code, L. B. Schwartz.--Paternalism, by G. Dworkin.--Four cases involving the enforcement of morality: Shaw v. Director of Public Prosecutions; People v. Cohen; Repouille v. United States; Commonwealth v. Donoghue.--Bibliography (p. 149).
This classic collection of essays, first published in 1968, has had an enduring impact on academic and public debates about criminal responsibility and criminal punishment. Forty years on, its arguments are as powerful as ever. H.L.A. Hart offers an alternative to retributive thinking about criminal punishment that nevertheless preserves the central distinction between guilt and innocence. He also provides an account of criminal responsibility that links the distinction between guilt and innocence closely to the ideal of the rule of law, (...) and thereby attempts to by-pass unnerving debates about free will and determinism. Always engaged with live issues of law and public policy, Hart makes difficult philosophical puzzles accessible and immediate to a wide range of readers. -/- For this new edition, otherwise a reproduction of the original, John Gardner adds an introduction engaging critically with Hart's arguments, and explaining the continuing importance of Hart's ideas in spite of the intervening revival of retributive thinking in both academic and policy circles. -/- Unavailable for ten years, the new edition of Punishment and Responsibility makes available again the central text in the field for a new generation of academics, students and professionals engaged in criminal justice and penal policy. (shrink)
How is it possible that the idea of sovereignty still features in legal and political philosophy? Most contemporary political philosophers have little use for the idea of ‘unlimited’ or ‘absolute’ power, which is how sovereignty is normally defined. A closer look at sovereignty identifies two possible accounts: sovereignty as the fact of power or sovereignty as a title to govern. The first option, which was pursued by John Austin’s command theory of law, leads to an unfamiliar view of law and (...) the state, which was justly criticised by H. L. A. Hart. The second option, leads to a paradox, because under this view sovereignty is both limited and unlimited. Hence, this argument shows that law and sovereignty are actually incompatible. Where there is law there is no sovereignty, and where there is sovereignty there is no law. (shrink)
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. (shrink)
Focused on five prominent scholars of international law, and casting light on the related institutions which frequently engaged them, the present book provides insight into chief currents of international law during the last decades of the twentieth century. Spanning the gap, in some degree, between Anglo-American and continental approaches to international law, the volume consists of short intellectual portraits, combined with interviews, of selected specialists in international law. The interviews were conducted by the editor, Antonio Cassese, between 1993 and 1995 (...) though the present volume was published only last year. -/- Cassese, an Italian jurist and international lawyer, was Professor of International Law at the University of Florence (1975-2008) and specialized in public international law. Among other posts held, he was the first President of the International Criminal Tribunal for the former Yugoslavia, the first President of the Special Tribunal for Lebanon and chaired the UN Inter-national Inquiry into Crimes in Darfur. He authored International Law (2005), a comprehensive commentary on the subject (which makes a fine companion volume to the present book). He was also editor in chief of the Oxford Companion to International Criminal Justice (2009) and founded the Journal of International Criminal Justice. His work has been credited as providing a chief impetus in the revival of international criminal law from its post-Nuremberg hiatus. -/- Cassese seeks to bring out the central ideas associated with each of his five selected scholarly jurist-professors, focusing on international law and international relations; and he aims to place each of the five scholars within the context of their own intellectual and philosophical back-grounds - and their views of the development of the international community. The interviews were based on Cassese’s “basic questionnaire,” which is reproduced in the opening pages of the volume (pp.xvii-xix). Overall, the book provides an engaging, though intricate, perspective on contemporary developments in international law combined with discussion of its roots in the post-WWII era and in legal philosophies. (shrink)
This paper proposes a semiotic theory of norms—what I term normative semiotics. The paper’s central contention is that social norms are a language. Moreover, it is a language that we instinctively learn to speak. Normative behaviour is a mode of communication, the intelligibility of which allows us to establish cooperative relationships with others. Normative behaviour communicates an actor’s potential as a cooperative partner. Compliance with a norm is an act of communication: compliance signals cooperativeness; noncompliance signals uncooperativeness. An evolutionary model (...) is proposed to explain how this comes about: evolution has generated an instinctual proficiency in working with these signals much like a language—a proficiency that manifests in an emotional context. We see these social rules as possessing a certain ‘rightness’ in normative terms. This adaptive trait is what we call internalization. Internalization enhances the individual’s ability to speak this code. Because these signals communicate who is and who is not a reliable co-operator, sending and receiving cooperation signals is crucial to individual survival. Individuals who internalized the entire process and thus became more adept at speaking the language were at an advantage. Law seeks to shape the language of norms by maintaining the collective standards of society; as such, understanding how and why this normative language emerges is critical to understanding a core function of law. (shrink)
H. L. A. Hart, in his classic book Law, Liberty, and Morality, is unsuccessful in arguing that James Fitzjames Stephen’s observations about the role of vice in criminal sentencing have no relevance to a more general defense of legal moralism. He does, however, have a very important insight about the special significance of sexual liberty.
In modern jurisprudence it is taken as axiomatic that John Austin's sanction-based account of law and legal obligation was demolished in H.L.A. Hart's The Concept of Law , but Hart's victory and the deficiencies of the Austinian account may not be so clear. Not only does the alleged linguistic distinction between being obliged and having an obligation fail to provide as much support for the idea of a sanction-independent legal obligation as is commonly thought, but the soundness of Hart's claims, (...) as well as the claims of many legal theorists who have followed him, depend on a contested view of the nature of legal theory. If the task of a theory of law, as Joseph Raz and others have influentially argued, is to identify the essential features of the concept of law, then the theoretical possibility, if not the empirical reality, of a sanction-free legal system is what is most important. But if the task of a theory of law is to provide philosophical and theoretical illumination of law as it exists and as it is experienced, then a theory of law that fails to give a central place to law's coercive reality may for that reason be deficient as a theory of law. The question of the soundness of the Austinian account, therefore, may be a function of the answer to the question of what a theory of law is designed to accomplish. (shrink)
Kant's Moral Law: Groundwork of the Metaphysics of Morals ranks with Plato's Republic and Aristotle's Ethics as one of the most important works of moral philosophy ever written. In Moral Law, Kant argues that a human action is only morally good if it is done from a sense of duty, and that a duty is a formal principle based not on self-interest or from a consideration of what results might follow. From this he derived his famous and controversial maxim, the (...) categorical imperative: "Act as if the maxim of your action were to become by your will a universal law of nature." H. J. Paton's translation remains the standard in English for this work. It retains all of Kant's liveliness of mind, suppressed intellectual excitement, moral earnestness, and pleasure in words. The commentary and detailed analysis that Paton provides is an invaluable and necessary guide for the student and general reader. (shrink)
In their important book, Causation in the Law, H. L. A. Hart and Tony Honore argue that causation in the law is based on causation outside the law, that the causal principles the courts rely on to determine legal responsibility are based on distinctions exercised in ordinary causal judgments. A distinction that particularly concerns them is one that divides factors that are necessary or sine qua non for an effect into those that count as causes for purposes of legal responsibility (...) and those that do not. Hart and Honore claim that this distinction is often one of fact rather than of legal policy, and that the factual basis is to be found in the ordinary distinction we draw between causes and 'mere conditions'. If this claim is correct, we may hope to illuminate the legal distinction by articulating the principles behind the ordinary one. This is a challenging task since, as in the case of most cognitive skills, we are far better at making particular judgments than we are at stating the general principles that underlie them. Hart and Honore devote the first part of their book to this difficult task. We have, then, two large projects. One is to articulate our ordinary notion of causation, especially the distinction between cause and mere condition. This is the project of constructing an 'ordinary model'. The other is to argue for what we may call the 'shared concept claim', the claim that the concept of legal cause is based on the ordinary notion of causation, that 'causal judgments, though the law may have to systematize them, are not specifically legal. They appeal to a notion which is part of everyday life' (1985, p. lv; all references to follow are from this edition). This essay will focus on Hart and Honore's ordinary model, rather than on their shared concept claim. In my judgment, Hart and Honore's case for some version of the shared concept claim is strong, so they are right to maintain that a better understanding of our ordinary notion of.. (shrink)
The volume brings together a collection of original papers on some of the main tenets of Joseph Raz's legal and political philosophy: Legal positivism and the nature of law, practical reason, authority, the value of equality, incommensurability, harm, group rights, and multiculturalism.
In their important book, Causation in the Law, H. L. A. Hart and Tony Honore argue that causation in the law is based on causation outside the law, that the causal principles the courts rely on to determine legal responsibility are based on distinctions exercised in ordinary causal judgments. A distinction that particularly concerns them is one that divides factors that are necessary or sine qua non for an effect into those that count as causes for purposes of legal responsibility (...) and those that do not. Hart and Honore claim that this distinction is often one of fact rather than of legal policy, and that the factual basis is to be found in the ordinary distinction we draw between causes and 'mere conditions'. If this claim is correct, we may hope to illuminate the legal distinction by articulating the principles behind the ordinary one. This is a challenging task since, as in the case of most cognitive skills, we are far better at making particular judgments than we are at stating the general principles that underlie them. Hart and Honore devote the first part of their book to this difficult task. We have, then, two large projects. One is to articulate our ordinary notion of causation, especially the distinction between cause and mere condition. This is the project of constructing an 'ordinary model'. The other is to argue for what we may call the 'shared concept claim', the claim that the concept of legal cause is based on the ordinary notion of causation, that 'causal judgments, though the law may have to systematize them, are not specifically legal. They appeal to a notion which is part of everyday life' (1985, p. lv; all references to follow are from this edition). This essay will focus on Hart and Honore's ordinary model, rather than on their shared concept claim. In my judgment, Hart and Honore's case for some version of the shared concept claim is strong, so they are right to maintain that a better understanding of our ordinary notion of.. (shrink)
The logic of the weak law of excluded middleKC p is obtained by adding the formula A A as an axiom scheme to Heyting's intuitionistic logicH p . A cut-free sequent calculus for this logic is given. As the consequences of the cut-elimination theorem, we get the decidability of the propositional part of this calculus, its separability, equality of the negationless fragments ofKC p andH p , interpolation theorems and so on. From the proof-theoretical point of view, the formulation presented (...) in this paper makes clearer the relations betweenKC p ,H p , and the classical logic. In the end, an interpretation of classical propositional logic in the propositional part ofKC p is given. (shrink)
The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, The Concept of Law, by arguing that law derives from a social rule, the so-called “rule of recognition.” But the proposition that social facts play a foundational role in producing law is a point of consensus for all (...) modern jurisprudents in the Anglo-American tradition: not just Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Ronald Dworkin, who argues that law necessarily synthesizes moral considerations with social facts. But which group’s practices ground each legal system? In particular, which group’s practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the “recognitional community” (my term): the group such that its rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law. This Article grapples with the tension between the positivist’s official- or judge-centered account of the recognitional community and the “popular constitutionalism” now so widely defended by constitutional scholars such as Larry Kramer, Robert Post, Reva Siegel, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I term this position “deep popular constitutionalism.” Indeed, it turns out that Dworkin’s account of law, in its ambition to generate associative moral obligations for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement – to the debate between deep popular constitutionalists and deep official or judicial supremacists -- is to dissolve it by providing a group-relative account of law. Social norms, such as norms of dress or eating, are clearly group-relative. A particular dressing or eating behavior may be socially appropriate relative to one group’s norms, yet socially inappropriate relative to another’s. This Article extends the group-relative view from social norms to law itself, with a particular focus on U.S. law and constitutionalism. Part I surveys the jurisprudential literature. It shows how Hart and successor positivists identify the rule of recognition as a social practice engaged in by officials or some subset of officials (judges), rather than citizens generally, and argues that Dworkin by contrast sees the citizenry as a whole as his recognitional community. Parts II and III defend a group-relative account of law. Part II argues, with reference to the U.S. experience, that multiple groups can simultaneously instantiate the kind of social fact that undergirds law, be it a convention, a social norm, a “shared cooperative activity” (SCA), or something else. At many points in U.S. constitutional history, multiple official or citizen groups, defined along departmental, partisan, regional, state-federal, religious, or other lines, have accepted competing rules of recognition for U.S. law. Part III argues that “law” functions, primarily, as either an explanatory or a normative construct, and that insisting on a single recognitional community for each legal system would be arbitrary, both for explanatory purposes and for normative purposes. Part IV considers the many implications of the group-relative account for U.S. constitutional theory – in particular, for popular constitutionalism. (shrink)
In debating Patrick Devlin, H. L. A. Hart claimed that the “modern form” of the debate over the legal enforcement of morals centered on the “significance to be attached to the historical fact that certain conduct, no matter what, is prohibited by a positive morality.” This form of the debate was politically important in 1963 in Britain and America, and it remains politically important in these countries today and elsewhere; but it is not the philosophically most interesting form the debate (...) can take. An older form of the debate appealed to natural law or critical morality. It centered on the question of whether political authorities could properly use the criminal law to enforce critical morality, including prohibitions on conduct that was not harmful or disrespectful to others. This paper engages with this older form of the debate. It offers some reasons for thinking that there is a presumption in favor of the view that it is a proper function of the criminal law to enforce critical morality, including that part of critical morality that is not directly concerned with preventing harm or disrespect to others. It then defends this presumption against some arguments recently pressed by Ronald Dworkin. (shrink)
The ethics of Wolfhart Pannenberg has a nomological dimension at its center. Based on the history of the natural law tradition, Pannenberg maintains the possibility of the natural law theory on the following five grounds. -/- The theological ground is his understanding of the Decalogue, the Sermon on the Mount, and the Pauline interpretation of the law. For its historical ground, Pannenberg articulates the natural law theories of Patristic theology and the theologies of Troeltsch and Brunner. The ontological ground is (...) the order of the world, which God established in the process of history. The anthropological ground is the mutuality of human society. The latter two dimensions are related to the epistemological ground, which is based on the hermeneutics of universal history. -/- Pannenberg attempts to combine the law, the gospel, and love in relation to the Kingdom of God. Thus, Pannenberg’s Kingdom ethics is nomological as well as eschatological. (shrink)
The dominant approach to evaluating the law on evidence and proof focuses on how the trial system should be structured to guard against error. This book argues instead that complex and intertwining moral and epistemic considerations come into view when departing from the standpoint of a detached observer and taking the perspective of the person responsible for making findings of fact. Ho contends that it is only by exploring the nature and content of deliberative responsibility that the role and purpose (...) of much of the law can be fully understood. In many cases, values other than truth have to be respected, not simply as side-constraints, but as values which are internal to the nature and purpose of the trial. A party does not merely have a right that the substantive law be correctly applied to objectively true findings of fact, and a right to have the case tried under rationally structured rules. The party has, more broadly, a right to a just verdict, where justice must be understood to incorporate a moral evaluation of the process which led to the outcome. Ho argues that there is an important sense in which truth and justice are not opposing considerations; rather, principles of one kind reinforce demands of the other. This book argues that the court must not only find the truth to do justice, it must do justice in finding the truth. (shrink)
Thornhill, John Shortly after completing my article, 'Reflections on the Gospel: after Reading Christopher Dawson', I read for the first time, C.H. Dodd's Gospel and Law, lectures given at Columbia University in 1950. This challenging work by a leading scholar prompted me to make the comparison between Protestant and Catholic approaches to the Gospel I have attempted in the present article.
How are law and morality connected, how do they interact, and in what ways are they distinct? In Part I of this book, Matthew Kramer argues that moral principles can enter into the law of any jurisdiction. He contends that legal officials can invoke moral principles as laws for resolving disputes, and that they can also invoke them as threshold tests which ordinary laws must satisfy. In opposition to many other theorists, Kramer argues that these functions of moral principles are (...) consistent with all the essential characteristics of any legal system. Part II reaffirms the legal positivist argument that law and morality are separable, arguing against the position of natural-law theory, which portrays legal requirements as a species of moral requirements. Kramer contends that even though the existence of a legal system in any sizeable society is essential for the realization of fundamental moral values, law is not inherently moral either in its effects or in its motivational underpinnings. In the final part, Kramer contests the widespread view that people whose conduct is meticulously careful cannot be held morally responsible for harmful effects of their actions. Through this argument, he reveals that fault-independent liability is present even more prominently in morality than in the law. Through a variety of arguments, Where Law and Morality Meet highlights both some surprising affinities and some striking divergences between morality and law. (shrink)
The adversary system and the practice of law -- The rule of law -- The moral force of law -- Statutes -- Precedents -- Constitutional interpretation -- Natural law and legal positivism: classical perspectives -- Formalism and legal realism -- Morality and the law -- International law -- Law and economics -- The justification of punishment -- The rights of defendants -- Sentencing -- Criminal responsibility -- Compensating for private harms: the law of torts -- Private ownership: the law of (...) property -- Private agreements: the law of contract -- Church and state -- Personal liberty and privacy -- Freedom of speech -- Equality. (shrink)
This article insists on the relationship between law and morality from the internal point of view. H.L.A. Hart makes distinction between internal and external viewpoints. In the framework of Hart’s approach, it is difficult to imagine the internal point of view as a moral point of view. In fact, the internal point of view illuminates the normative character of rules; it shows that the members of the group accept the rules as standards of behavior for the group as a whole. (...) To explain the internal point of view which includes also moral view, we should leave Hart’s definition. But we may use his definition as accepting and using a rule. For this, we should question the meaning of accepting a rule and using a rule. (shrink)
John Rawls’s political liberalism and its ideal of public reason are tremendously influential in contemporary political philosophy and in constitutional law as well. Many, perhaps even most, liberals are Rawlsians of one stripe or another. This is problematic, because most liberals also support the redefinition of civil marriage to include same-sex unions, and as I show, Rawls’s political liberalism actually prohibits same- sex marriage. Recently in Perry v. Schwarzenegger, however, California’s northern federal district court reinterpreted the traditional rational basis review (...) in terms of liberal neutrality akin to Rawls’s “public reason,” and overturned Proposition 8 and established same-sex marriage. (This reinterpretation was amplified in the 9th Circuit Court’s decision upholding the district court on appeal in Perry v. Brown.) But on its own grounds Perry should have drawn the opposite conclusion. This is because all the available arguments for recognizing same-sex unions as civil marriages stem from controversial comprehensive doctrines about the good, and this violates the ideal of public reason; yet there remains a publicly reasonable argument for traditional marriage, which I sketch here. In the course of my argument I develop Rawls’s politically liberal account of the family by drawing upon work by J. David Velleman and H. L. A. Hart, and discuss the implications of this account for political theory and constitutional law. (shrink)
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 (...) and function when its key officials reject the reason-giving character of law, then we have a reason to re-examine and amend legal positivism. (shrink)
This article offers a refutation of the corrective justice interpretation of tort law – the view that it is essentially a system of corrective justice. It introduces a distinction between primary and secondary tort duties and claims that tort law is best understood as the union of its primary and secondary duties. It then advances two independent criticisms of the corrective justice interpretation. The article first argues that primary tort duties have nothing fundamentally to do with corrective justice and that, (...) if one understands what is meant by ``primary tort duties,'' one is compelled to regard this fact as a decisive objection to the corrective justice interpretation. Second, it argues that, whatever relation there is between secondary tort duties and corrective justice, that relation also holds between corrective justice and secondary duties of other legal branches. In sum, the concept of corrective justice is neither capable of unifying tort law nor of demarcating it from other legal branches.The article also offers a general alternative interpretation of tort law. Rather than being essentially corrective, tort law is essentially protective. Under this picture, if tort law has a most important point, it is the protection of legal subjects and valuable social interests from harm. This is the overarching ambition that unifies primary and secondary tort duties. It does not, however, demarcate tort law from other legal branches. (shrink)
We argue that C. Darwin and more recently W. Hennig worked at times under the simplifying assumption of an eternal biosphere. So motivated, we explicitly consider the consequences which follow mathematically from this assumption, and the infinite graphs it leads to. This assumption admits certain clusters of organisms which have some ideal theoretical properties of species, shining some light onto the species problem. We prove a dualization of a law of T.A. Knight and C. Darwin, and sketch a decomposition result (...) involving the internodons of D. Kornet, J. Metz and H. Schellinx. A further goal of this paper is to respond to B. Sturmfels’ question, “Can biology lead to new theorems?”. (shrink)
This essay considers the nature of duties incumbent on legislators in virtue of the office itself. I argue that there is no duty for a legislator to enact a criminal law based on morality; there is no duty to incorporate substantive moral conditions into the criminal law; and there is therefore no duty derivable from the nature of the legislative office itself to make conditions of culpability depend on those of moral responsibility. Finally, I argue that the relation between morality (...) and the criminal law is therefore much less direct than assumed in most theories of the criminal law. (shrink)
Bijural services as factors of production -- Commentary A on Breton and Salmon -- Commentary B on Breton and Salmon -- The challenge of incomplete law and how different legal systems respond -- Commentary C on Pistor and Xu -- Commentary D on Pistor and Xu -- Coevolution as an influence in the development of legal systems -- Commentary E on Breton and Des Ormeaux -- Commentary F on Breton and Des Ormeaux -- The demand for bijurally trained Canadian lawyers (...) -- Commentary G on Davis and Trebilcock -- Commentary H on Davis and Trebilcock. (shrink)
Cost-benefit analysis is a widely used governmental evaluation tool, though academics remain skeptical. This volume gathers prominent contributors from law, economics, and philosophy for discussion of cost-benefit analysis, specifically its moral foundations, applications and limitations. This new scholarly debate includes not only economists, but also contributors from philosophy, cognitive psychology, legal studies, and public policy who can further illuminate the justification and moral implications of this method and specify alternative measures. These articles originally appeared in the Journal of Legal Studies. (...) Contributors: - Matthew D. Adler - Gary S. Becker - John Broome - Robert H. Frank - Robert W. Hahn - Lewis A. Kornhauser - Martha C. Nussbaum - Eric A. Posner - Richard A. Posner - Henry S. Richardson - Amartya Sen - Cass R. Sunstein - W. Kip Viscusi. (shrink)
Stone, J. Thoughts on supposed "Death of law".--Krishna Iyer, V. R. Jurisprudence and jurisconscience.--Sharma, G. S. Law and social change in India.--Sharma, S. D. The concept of justice in Manu.--Chand, H. Legal values for a developing country.--Ramarao, T. S. The new international law relating to the rights and duties of States.--Sinha, B. S. Custom and customary law in Indian jurisprudence.--Mazumdar, D. L. Techno-economic structure of our industrial society.--Subrahamanian, N. Law and social change.
The problem of the judge: judicial freedom of decision, its necessity and method, by F. Gény.--Judicial freedom of decision, its principles and objects, by E. Ehrlich.--Dialecticism and technicality; the need of sociological method, by J. G. Gmelin.--Equity and law, by G. Kiss.--The perils of emotionalism, by F. Berolzheimer.--Judicial interpretation of enacted law, by J. Kohler.--Courts and legislation, by R. Pound.--The operation of the judicial function in English law, by H. B. Gerland.--Codified law and case-law, by É. Lambert.--Methods of juridical thinking, (...) by K. G. Wurzel.--The problem of the legislator: methods for scientific codification, by A. Alvarez.--The legislative technic of modern civil codes, by F. Gény.--Scientific method in legislative drafting, by E. Freund. (shrink)
This is a collection of essays on themes of legal philosophy which have all been generated or affected by Hart's work. The topics covered include legal theory, responsibility, and enforcement of morals, with contributions from Ronald Dworkin, Rolf Sartorius, Neil MacCormach, David Lyons, Kent Greenawalt, Michael Moore, Joseph Raz, and C.L. Ten, among others.
