In this paper, I criticize an influential understanding of naturalization according to which work on traditional problems in the philosophy of law should be replaced with sociological or psychological explanations of how judges decide cases. W.V. Quine famously proposed the “naturalization of epistemology.” Quine argued that we should replace certain traditional philosophical inquiries into the justification of our beliefs with empirical psychological inquiry into how we actually form beliefs. In a prominent series of papers and a forthcoming book, Brian Leiter (...) has raised the intriguing idea that Quine’s naturalization of epistemology is a useful model for philosophy of law. I examine Quine’s naturalization of epistemology and Leiter’s suggested parallel. I argue that the parallel does not hold up. I show that, granting Leiter’s substantive assumption that the law is indeterminate, there is no philosophical confusion or overreaching in the legal case that is parallel to the philosophical overreaching of foundationalism in epistemology. Moreover, if we take seriously Leiter’s analogy between, on the one hand, the justification of belief in scientific theories and, on the other, the justification of decisions in legal cases, the result is almost the opposite of what Leiter suggests. The closest parallel in the legal case to Quine’s position would be the rejection of the philosophical positions that lead to the indeterminacy thesis. Finally, the conclusion that law is indeterminate could not establish the bankruptcy of philosophical investigation into the relation between the grounds of law and the content of the law. After all, the argument for that conclusion depends on a philosophical account of the relation between the grounds of law and the content of law. The argument therefore presupposes that that relation is an appropriate subject for philosophical inquiry. (shrink)

This essay examines two dominant traditions in legal philosophy, the natural law theory and legal positivism, in terms of how they account for the normativity of law. I argue that, although these two traditions generally take the question of the normativity of law seriously and try to account for it, they are not successful in doing so. This failure in the prevailing literature on the philosophy of law, I suggest, nevertheless has an implicit reconstructive (...) impact: the insights into the failure of natural law theory and legal positivism imply an alternative philosophical framework that may provide a positive answer to the question of the normativity of law. (shrink)

ABSTRACTThe aim of this article is to see whether we can account for the normativity of law within the framework of legal positivism and whether the idea of a social convention could be of help in this endeavour. I argue, inter alia, that we should distinguish between the problem of accounting for the normativity of law, conceived as a necessary property of law, and the problem of accounting for the use of normative legal language on (...) the part of legal actors; that the debate about the normativity of law, which mainly concerns, is more or less identical to the debate between legal positivists and non-positivists; that one cannot account for the normativity of law, conceived along the lines of, within the framework of legal positivism, and that the question of the normativity of law considered within the framework of legal positivism is not an open question. (shrink)

Legal realism comes in two main versions, namely American legal realism and Scandinavian legal realism. In this article, I shall be concerned with the Scandinavian realists, who were naturalists and non-cognitivists, and who maintained that conceptual analysis is a central task of legal philosophers, and that such analysis must proceed in a naturalist, anti-metaphysical spirit. Specifically, I want to consider the commitment to ontological naturalism and non-cognitivism on the part of the Scandinavians and its implications (...) for their view of the nature of law. I argue that the Scandinavians differ from legal positivists in that they reject the idea that there are legal relations, that is, legal entities and properties, and to varying degrees defend the view that law is a matter of human behavior rather than legal norms, and that they do not and cannot accept the idea that there is a ‘world of the ought’ in Kelsen's sense. I also argue, more specifically, that the objection to non-naturalist theories raised by the Scandinavians—that there is and can be no connection between the higher realm of norms and values and the world of time and space—is convincing, and that Kelsen's introduction of a so-called modally indifferent substrate does nothing to undermine this objection. In addition, I argue that the Scandinavians can account for the existence of legal relations that do not presuppose the existence of morally binding legal norms by embracing conventionalism about the existence of the sources of law, while pointing out that in doing so they would also be abandoning their legal realism for legal positivism. Finally, I argue that the implications for legal scholarship of the realist emphasis on human behavior instead of legal norms is not well explained by the realists and appear to amount to little more than a preference for teleological interpretation of legal norms. (shrink)

Legal realism comes in two main versions, namely American legal realism and Scandinavian legal realism. In this article, I shall be concerned with the Scandinavian realists, who were naturalists and non-cognitivists, and who maintained that conceptual analysis is a central task of legal philosophers, and that such analysis must proceed in a naturalist, anti-metaphysical spirit. Specifically, I want to consider the commitment to ontological naturalism and non-cognitivism on the part of the Scandinavians and its implications (...) for their view of the nature of law. I argue that the Scandinavians differ from legal positivists in that they reject the idea that there are legal relations, that is, legal entities and properties, and to varying degrees defend the view that law is a matter of human behavior rather than legal norms, and that they do not and cannot accept the idea that there is a ‘world of the ought’ in Kelsen's sense. I also argue, more specifically, that the objection to non-naturalist theories raised by the Scandinavians—that there is and can be no connection between the higher realm of norms and values and the world of time and space—is convincing, and that Kelsen's introduction of a so-called modally indifferent substrate does nothing to undermine this objection. In addition, I argue that the Scandinavians can account for the existence of legal relations that do not presuppose the existence of morally binding legal norms by embracing conventionalism about the existence of the sources of law, while pointing out that in doing so they would also be abandoning their legal realism for legal positivism. Finally, I argue that the implications for legal scholarship of the realist emphasis on human behavior instead of legal norms is not well explained by the realists and appear to amount to little more than a preference for teleological interpretation of legal norms. (shrink)

A successful account of the ‘normativity of law’ is meant to inter alia establish how legal requirements come to be morally binding. This question presupposes taking a stance on the metaethical debate about the nature of morality and moral bindingness between the cognitivist and non-cognitivist camps. An overwhelming majority of contemporary legal philosophers have an unspoken adherence to a cognitivist metaethic and the model of normativity of law emerging from it: the impinging model. Consequently, the (...) problematic of the normativity of law is so calibrated as to in limine rule out any putative account of the normativity of law that presupposes a non-cognitivist metaethic: the projectivist model. This paper calls for a recalibration of the problematic of the normativity of law to a metaethically aseptic viewpoint from which the projectivist model is seen as a plausible theoretical contender to the impinging model. It also sets out the philosophical underpinnings of the projectivist model and contrasts it... (shrink)

An emerging consensus regards domestic amnesties for international crimes as generally inconsistent with international law. This legal consensus rests on a norm against impunity: the chief role of international criminal law, and of the fledgling International Criminal Court , is to end impunity for violators of the worst of criminal acts. But the anti-impunity norm, and the anti-amnesty consensus that has arisen from it, now face serious difficulties. The ICC's role in the ongoing conflict in Northern Uganda illustrates the (...) deadlock that has now emerged between countries wishing to retain the power to use domestic politics and criminal law as tools for negotiation with current or outgoing perpetrators, on the one side, and the ICC's determination to apply a consistent international anti-impunity norm, on the other. The paper argues that the anti-impunity norm itself is based on a narrowly retributivist conception of criminal justice. A broader norm for democratic accountability, by contrast, would continue to prefer prosecutions over amnesties in international law, less for the opportunity for deserved retribution for perpetrators than for the public enactment of the deliberative procedures associated with the rule of law.Keywords: amnesty; impunity; international law; international criminal court. (shrink)

This paper examines the normativity of law, that is, law’s capacity to guide behavior by generating reasons for action, from the perspective of virtue jurisprudence. It articulates a virtue-based model of law’s normativity according to which the law generates first order reasons for action (that is, loyalty-reasons) that need to be factored in citizens’ and legal officials’ practical reasoning, which consists, primarily, in the search for the best specification of the values involved in light of an (...) class='Hi'>account of the good life and the role that the law plays wherein. The outcome of this piece of practical reasoning is a judgment about what ought to be done, the rightness of which depends, on the proposed model, on whether it is a judgment that a virtuous person would characteristically do in the circumstances. This model, it is argued, has distinctive features that set it apart from some prominent accounts of the normativity of law. It may, however, be disqualified as a plausible alternative account of the normativity of law on the grounds that it fails to provide action-guidance. The last part of the paper responds to this objection in a way that unveils the relevance of the social dimensions of virtue to law’s normativity. (shrink)

An important part of the legal domain has to do with rule-governed conduct, and is expressed by the use of notions such as norm, obligation, duty, and right. These require us to acknowledge the normative dimension of law. Normativity is, accordingly, to be regarded as a central feature of law lying at the heart of any comprehensive legal-theoretical project. The essays collected in this book are meant to further our understanding of the normativity of law. More (...) specifically, the book stages a thorough discussion of legal normativity as approached from three strands of legal thought that are particularly influential and which play a key role in shaping debates on the normative dimension of law: the theory of planning agency, legal conventionalism and the constitutivist approach. While the essays presented here do not aspire to give an exhaustive picture of these debates--an aspiration that would be, by its very nature, unrealistic--they do provide the reader with some authoritative statements of some widely discussed families of views of legal normativity. In pursuing this objective, these essays also encourage a dialogue between different traditions of study of legal normativity, stimulating those who would not otherwise look outside their tradition of thought to engage with new ideas and, ultimately, to arrive at a more comprehensive account of the normativity of law.--Provided by publisher. (shrink)

Several legal arguments use the notion of ratio legis in order to sustain a normative conclusion, in particular the argument from analogy and some forms of teleological argumentation. However, determining the ratio is often a difficult and controversial task. In this paper we look firstly at the speech acts typically performed by legal practitioners in order to determine the ratio and, secondly, we take into account the argumentative commitments they undertake in so doing and the argumentative constraints (...) put on them. This will lead us to distinguish different uses of the notion of ratio legis and to ask on what conditions each of them is justified. (shrink)

People convicted of crimes are subject to a criminal sentence, but they also face a host of other restrictive legal measures: Some are denied access to jobs, housing, welfare, the vote, or other goods. Some may be deported, may be subjected to continued detention, or may have their criminal records made publicly accessible. These measures are often more burdensome than the formal sentence itself. -/- In Beyond Punishment?, Zachary Hoskins offers a philosophical examination of these burdensome legal measures, (...) called collateral legal consequences. Drawing on resources in moral, legal, and political philosophy, Hoskins analyzes the various kinds of collateral consequences imposed in different legal systems and the important moral challenges they raise. Can collateral legal consequences ever be justified as forms of criminal punishment or as civil measures? Hoskins contends that, considered as forms of punishment, such restrictions should be constrained by considerations of proportionality and offender reform. He also argues that they may in a limited range of cases be permissible as risk-reductive civil measures. Whether considered as criminal punishment or civil measures, however, collateral legal consequences are justifiable in a far narrower range of cases than we find in current legal practice. -/- Considering just how pervasive collateral legal consequences have become and their dramatic effects on offenders' lives, Beyond Punishment? sheds valuable light on whether these restrictive measures are ever morally justified. (shrink)

Normativism is the view that logic provides rules for correct reasoning. Some influential critics of normativism, such as Gilbert Harman, claim that logical rules provide reasoners with bad or misleading standards. Others, such as Gillian Russell, claim that logic is a descriptive subject and thus cannot, given Hume’s law, provide rules for reasoning. We think these critics are mistaken. Our aim in this paper is to defend normativism by sketching an alternative way of thinking about the normative force of logical (...) rules. On our view, logical rules are best characterized, in a broadly Rossian manner, as intellectual prima facie duties; i.e., they provide standards for evaluating reasoning and reasoners that are universal and authoritative, but not absolute. This position accommodates the inherent normativity of logic, contra Russell, while circumventing the challenges to normativism raised by Harman. (shrink)

This essay criticises the attempt to explain the so-called normativity of law with reference to a model of coordination conventions. After specifying the explanandum of the normativity of law, I lay out the conceptions of ‘coordination’ and ‘convention’ and how the combination of both sets out to contribute to legal philosophy. I then present two arguments against such an account. Firstly, along a reductio ad absurdum, I claim that if an account of coordination conventions tries (...) to explain the normativity of law by focusing on a coordination problem among judges it leads to self-contradiction. Secondly, I argue that even if one allows for widening the coordination problem beyond the group of judges, one is unable to account for the notion of duty. I will substantiate this second argument by distinguishing different scopes of the deontic operator “ought”. I conclude by reconsidering what explaining the normativity of law could amount to. (shrink)

One of the central debates in legal philosophy is the debate over legal positivism. Roughly, positivists say that law is ultimately grounded in social facts alone, whereas antipositivists say it is ultimately grounded in both social facts and moral facts. In this paper, I argue that philosophers involved in the dispute over legal positivism sometimes employ distinct concepts when they use the term “law” and pick out different things in the world using these concepts. Because of this, (...) what positivists say might well then be true of one thing (e.g., law1) but false of another (e.g., law2). Accepting this thesis does not mean that the philosophers engaged in this dispute are “talking past each other” or engaged in a “merely verbal dispute” that lacks substance. I argue that participants in this dispute are sometimes arguing about what they should mean by the word “law” in the context at hand. This involves putting forward competing proposals about which concept the word “law” should be used to express. This is an issue in what I call “conceptual ethics.” This argument in conceptual ethics can be well worth having, given the connotations that the term “law” plays in many contexts, ranging from legal argument to political philosophy to social-scientific inquiry. Sometimes, I claim, philosophers (and ordinary speakers) engage in such argument tacitly by competing “metalinguistic” usages of the term “law”—usages of the term that express a view (in this case, a normative view) about the meaning of the word itself. In such cases, speakers on different sides of the positivism debate might in fact both speak truly, in terms of the literal (semantic) content of what they both say. Nonetheless, they may disagree in virtue of views in conceptual ethics about “law” that they express through the nonliteral content of what they say. These views in conceptual ethics often reflect further disagreements about issues that are not ultimately about words or concepts. These include foundational ones in ethics and politics about how we should live and what kind of institutions should govern our lives. My metalinguistic account of the dispute over legal positivism better equips us to identify what such issues are and to engage them more fruitfully. (shrink)

There seem to be things we ought not to believe and others we are permitted to believe. Belief is treated as a normative phenomenon both in everyday and academic discourse. At the same time, normativity can be seen as a threat to a naturalistic understanding of the world. Whilst naturalistic claims are of descriptive nature, norms are prescriptive. It is usually held that they cannot be reduced to statements of fact. This problem is also pertinent to the normativity (...) of belief. How is such a phenomenon to be understood within a naturalist framework? -/- Sullivan-Bissett provides a naturalistic account of epistemic normativity in which she explains epistemic normativity in terms of biological functions of belief-producing mechanisms. Importantly, her account is error-theoretic: She argues that we mistake doxastic strategies, which are at best normative in a hypothetical sense, to be categorical epistemic norms. -/- In continuation of Sullivan-Bissett’s account, I draw attention to one of the belief-producing mechanisms which is responsible for bringing about these mistaken beliefs. I claim that normative conformity – a social-learning mechanisms – brings about our beliefs in the existence and categorical validity of epistemic norms. Keeping with the evolutionary perspective employed by Sullivan-Bissett, I answer questions about the function and phylogeny of our mistaken beliefs in epistemic normativity by means of normative conformity and in line with Sullivan-Bissett’s account. (shrink)

This article supports H. L. A. Hart's “any reasons” thesis (defended consistently from the first edition of The Concept of Law in 1961 to the Postscript to the second edition of 1994) that legal officials may accept law for any reasons, including non‐moral reasons. I develop a conception of non‐moral aesthetic ideals of official conduct which may provide legal officials with reasons to accept and apply even morally iniquitous law. I use this conception in order to rebut Gerald (...) Postema's and Joseph Raz's criticisms of Hart's view, and suggest that my revisions offer reasons for renewed confidence in Hart's account of law's normativity. (shrink)

This review of Hoskins’ book on the collateral legal consequences of a criminal conviction focuses on some of the consequences of his concept of collateral legal consequences for our understanding of justifications of criminalization, the theory of punishment and incapacitation upon which it rests, and the implications for the prosecutor’s role that goes beyond Hoskins’ suggestions in the last part of the book. The review particularly engages with Hoskins’ distinction between punishment and incapacitation, which forms the core of (...) his defense of collateral sanctions as in principle capable of moral justification and his excellent discussion of contemptuous punishment, which he uses to sketch out the limits of both direct and indirect criminal sanctions. (shrink)

I argue that there are two conceptions of ‘comprehensiveness’: 1) Raz’s strong conception whereby comprehensiveness entails supremacy, and 2) a weak conception whereby comprehensiveness does not entail supremacy. The latter is sufficient to distinguish legal and non-legal authorities, and unlike Raz’s notion of comprehensiveness, allows one to account for both intra-state forms of legality (e.g., the federal-provincial relation in Canada) and supra-state forms of legality (e.g., the European Union). Moreover, although it is ideal for legal systems (...) to claim supremacy, it is not necessary – it is possible for legal systems to recognize as valid the norms of other legal systems. (shrink)

I argue that a concept is applied correctly when it is applied to the kind of things it is the concept of. Correctness as successful kind-tracking is fulfilling an externally and naturalistically individuated standard. And the normative aspect of concept-application so characterized depends on the relational (non-individualistic) feature of conceptual content. I defend this view against two objections. The first is that norms should provide justifications for action, and the second involves a version of the thesis of indeterminacy of reference.

Philosophical compatibilism reconciles moral responsibility with determinism, and some neurolaw scholars think that it can also reconcile legal views about responsibility with scientific findings about the neurophysiological basis of human action. Although I too am a compatibilist, this paper argues that philosophical compatibilism cannot be transplanted “as-is” from philosophy into law. Rather, before compatibilism can be re-deployed, it must first be modified to take account of differences between legal and moral responsibility, and between a scientific and a (...) deterministic world view, and to address a range of conceptual, normative, empirical and doctrinal problems that orbit its capacitarian core. (shrink)

It is natural to think of legal positivism and jurisprudential naturalism as intellectually allied ideas. Legal positivism is associated with the idea that law is a matter of social fact; naturalism is a philosophical tenet that, among other things suggests the importance of scientific findings and methods to philosophy. At the very least, there seems to be a close family resemblance between the two views. In this essay, I challenge this view from a naturalistic perspective. I show that (...) the best-known proponents of legal positivism in the twentieth century all rejected naturalism. I dedicate most of my discussion to H.L.A. Hart’s version of legal positivism, as it appears superficially friendly to naturalism. I show that throughout his career and in writings on a wide range of topics, Hart consistently argued against the applicability of the methods of science to the explanation of social phenomena. This is not a small matter: I argue that it is this anti-naturalistic stance that contributed to his descriptively faulty account of adjudication. After reviewing more briefly the work of other leading legal positivists, I argue in my conclusion that those seeking to advance a naturalistic approach to law should turn their backs of much of twentieth-century legal positivism, which in various guises has been hostile to naturalism. (shrink)

The border is an area where the rule of law has often found difficulty taking root, existing as law-free zones characterized by largely unbounded legal and administrative discretion. In his important new book, The Rule of Law in the Real World, Paul Gowder deftly combines historical examples, formal models, legal analysis, and philosophical theory to provide a novel and compelling account of the rule of law. In this paper I consider whether the account Gowder offers can (...) provide the tools needed to bring the border under the rule of law. I argue that on Gowder’s account, there are two ways in which we might try to extend the rule of law to the border.The first is to look at concrete connections that current citizens or members of the political community have with non-citizens. Just as the interests of current citizens give them strong reasons to coordinate to establish the rule of law in their own community, so may the interests of current members in connections with nonmembers give them reason to work to extend the rule of law to the border. These interests can include family ties, other forms of personal relationships, offers of employment, intellectual connections, and others. Some of these connections already serve to give greater legal protections, including protections from arbitrary decision-making, to some non-citizens, and the general trend, I argue, can and should be further strengthened The second method for extending the rule of law to the border involves appealing to certain universal norms so as to build a sense of community that stretches beyond borders. While these norms are not as robust or well established as domestic law, and therefore are unlikely to extend all of the protections of the rule of law to all people at the border, they can, I argues, be a basis for working against the worst arbitrary actions by border officials. I conclude by considering the vexed dispute about providing “amnesty” for unauthorized immigrants in the United States and other countries. I argues that Gowder’s account of the amnesty provided to supporters of the oligarchic coups in ancient Athens provides a model for thinking about when and how amnesties for unauthorized migrants can be done without offending the rule of law, thereby making them more palatable to current citizens. (Please download this paper for free from SSRN on the link provided on this page). (shrink)

The Defensor pacis offers the possibility of solving the contradiction between formal law and material law. Marsilius of Padua proposes a reconciliation between harmonisation of law as formal positive rule and law as a material norm. If that antinomy admits conciliation, the Defensor pacis can be said to reconcile successfully two heterogeneous grounds of law, which in this case contradict each other only in appearance.

In Legality, Scott Shapiro – a leading legal positivist – analyses the problem of a wicked legal system in a way that brings him close to natural law positions. For he argues that a wicked legal system is botched as a legal system and I show that such an argument entails a prior argument that there is some set of standards or criteria internal to law which are both moral and legal. As a result, the (...) more successful a legal order is legally speaking, the better the moral quality of its law, and the more it is a failure morally speaking, the worse the legal quality of its law. It is such moral features of law that Shapiro concedes make it plausible to account for law’s claim to justified authority over its subjects. However, Shapiro cannot, as a legal positivist, accept this entailment. His book thus brings to the surface and illuminates a central dilemma for legal positivism. If legal positivists wish to account for the authority of law they have to abandon legal positivism’s denial that law has such moral features. If they do not, they should revive a form of legal positivism that specifically abjures any claim to account for law’s normative nature. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Ministers of the Law: A Natural Law Theory of Legal AuthorityThomas J. BushlackMinisters of the Law: A Natural Law Theory of Legal Authority Jean Porter Grand Rapids, Mich.: Eerdmans, 2010. 368 pp. $30.00Jean Porter’s most recent book is the fruit of her participation with the Emory Center for the Study of Law and Religion since 2005. In this project she undertakes two interrelated tasks. First, she (...) provides compelling reasons for Christian ethicists to engage in questions internal to the discipline of jurisprudence. Second, she demonstrates how a natural law theory grounded in the work of the medieval scholastics can address some of the questions of contemporary jurisprudence. Readers familiar with her previous work will be delighted that she has extended her constructive account of natural law into the realms of jurisprudence and in the process also engages cultural psychology, rhetoric, political philosophy, and international law.Porter begins her engagement with jurisprudence in chapter 1 by noting a paradox recognized by many legal philosophers in the Anglophone world. Legal systems, as they have developed in the West, are characterized by a high degree of autonomy and independence vis-à-vis other social dynamics such as politics or morality. At the same time, however, no legal system can function in complete isolation from considerations of politics and morality. How can we account for the paradoxical autonomy of legal authority? Porter suggests that a scholastic account of natural law can provide a rationally defensible solution to this paradox by developing an account of natural authority (in chapter 2).The force of Porter’s argument rests on the capacity of her account to justify political and legal authority as a natural expression of the authority that any community exercises vis-à-vis its individual members. A community’s authority over its members is justified on the grounds that in prescribing or prohibiting particular acts, it must appeal to claims that could potentially be recognized as justifiable by any rational member of that community. The concept that creates this important hinge between an individual’s good and the good of the community is, of course, the common good. Scholars interested in the concept of the common good will find that her reflection upon it is both rooted deeply in the Christian tradition and applied with fresh insight to the realm of politics (chapter 3) and law (chapter 4). [End Page 210]One potential objection to Porter’s account of natural law could arise in response to her insistence that natural inclinations “underdetermine” the normative content of a natural law morality, leaving her account open to charges of cultural relativism or of being merely descriptive as opposed to normative. However, in this work she is able to turn these criticisms into assets for her account of natural law. She shows (successfully, I believe) how her theory of natural law is able to account for the plurality of moral, political, and legal systems that exist in our world today while still providing normative grounds for critiquing existing social systems. And in chapter 5 she demonstrates how nonderogable, jus cogens principles can be developed from her account of natural law and applied to the field of international law and human rights. In fact, the final section left me hungry for further development of her insights regarding the relationship between natural and international law.This book is written with the same rigorous logic and careful research that has made Porter one of the leading scholars of natural law theory in the field today. As such, this book would be suitable for academics in a wide variety of fields, such as law, political theory, and of course Christian ethics, or for advanced graduate students. It is most certainly a groundbreaking work for demonstrating how a theological account of natural law can engage in constructive dialogue with legal theory and politics at both a theoretical and a practical level.Thomas J. BushlackUniversity of St. ThomasCopyright © 2012 The Society of Christian Ethics... (shrink)

Even good lawyers get a bad rap. One explanation for this is that the professional rules governing lawyers permit and even require behavior that strikes many as immoral. The standard accounts of legal ethics that seek to defend these professional rules do little to dispel this air of immorality. The revisionary accounts of legal ethics that criticize the professional rules inject a hearty dose of morality, but at the cost of leaving lawyers unrecognizable as lawyers. This article suggests (...) that the problem with both the professional rules and the extant accounts of legal ethics is that they treat the role of lawyer as largely uniform, whereas lawyers actually serve several importantly different roles in different contexts. The central insight of the article is that legal ethics must be fundamentally context-sensitive: what lawyers are morally permitted or required to do depends on the background context in which they are working. Additionally, by taking context into account, this article is the first to present a theory of legal ethics as appropriately shaped and constrained by normative political philosophy and norms of political legitimacy. -/- Specifically, the article argues that people act as lawyers in three different contexts: State v. Individual (situations in which the State seeks to apply some general law to a particular individual), Individual v. Individual (situations in which private individuals are engaged in a dispute), and Individual v. State (situations in which individuals object to State conduct on constitutional or other grounds unrelated to the question of whether a general law applies to their particular case); that the value of lawyers, qua lawyers, stems from a different source in each of these contexts; and that a theory of legal ethics must take into account both of these first two claims. This article develops one such theory - the Multi-Context View. To demonstrate how the theory applies in practice, the article applies the Multi-Context View to two significant issues in legal ethics: the ethical issues involved in deciding whether to represent a client and the moral permissibility of the use of tactical delay. (shrink)

: T.L. Short's book is a major achievement in Peirce's scholarship and probably one of the best books on Peirce ever written. However, it does not take the impact of evolutionary metaphysics on the development of semiotics into account. Furthermore, it blends out the specific conditions that final causation is subject to in the development of culture and morality.

This book provides the first systematic, book-length defence of natural law ideas in ethics, politics and jurisprudence since John Finnis's influential Natural Law and Natural Rights. Incorporating insights from recent work in ethical, legal and social theory, it presents a robust and original account of the natural law tradition, challenging common perceptions of natural law as a set of timeless standards imposed on humans from above. Natural law, Jonathan Crowe argues, is objective and normative, but nonetheless historically extended, (...) socially embodied and dependent on contingent facts about human nature. It reflects the ongoing human quest to work out how best to live flourishing lives, given the natures we have and the social environments we inhabit. The nature and purpose of law can only be adequately understood within this wider context of value. Timely, wide-ranging and clearly written, this volume will appeal to those working in law, philosophy and religious studies. (shrink)

Jurisprudence has up until recently largely neglected international law as a subject of philosophizing. The Nature of International Law tries to offset against this deficiency by providing a comprehensive explanatory account of international law. It does so within an analytical tradition, albeit within the one which departs from the nowadays dominant method of the metaphysically-driven conceptual analysis. Instead, it adopts the prototype theory of concepts, which is directed towards determining typical features constitutive of the nature of international law. The (...) book's central finding is that those features are: normativity, institutionalization, coercive guaranteeing, and justice-aptness. Since typical features are context sensitive, their specificities at the international level are further elucidated. The book, finally, challenges the often raised claim that fragmentation is international law's unique feature by demonstrating that international institutional actors, particularly adjudicative ones, largely perceive themselves as officials of a unified legal order. (shrink)

According to Ronald Dworkin's mature views on jurisprudence, legal normativity depends on judges’ views about political morality. Plato's own mature views on this subject seem to take the contrary position as he claims that the law is expected to be authoritative in order to preserve a given state of affairs. Therefore, in Plato's view judges are not expected to interpret the law ubiquitously according to their own standards of political morality. In what follows, the discussion starts off by (...) offering a brief account of Dworkin's interpretivism and some of its shortcomings. We shall then move on to Plato's account of legal normativity, especially his views on the authority of law, law as preservation, and finally the politics of law in the light of the debate between conservatism and progressivism. (shrink)

The article reconstructs the premises of the reception of analytic philosophy in jurisprudence and shows that the development of a method for clarifying the meanings of legal concepts is not least connected with the problem of legitimizing law enforcement. The article analyzes H.L.A. Hart’s approach to the problem of correlation between the “letter” and “spirit” of the law in the process of interpreting legal norms. The article argues that the process of interpretation is determined teleologically. In its limit, (...) the interpretation of legal norms presupposes the re-creation of the desired image of society, the reconstruction of such social ontology that is most consistent with the ideal of achieving social welfare. The article examines the collision of the “ideal of order” and the “ideal of justice” as two regulations of law enforcement. The author believes that the interpretation of this collision within the analytical tradition was characterized by a gradual movement from the ideal of “mechanical” law enforcement, which minimizes the creative role of the interpreter, to the ideal of flexible interpretation focused on achieving legal goals in a changing environment. It is noted that, according to analytic approach, a theoretical solution to this conflict was proposed due to the development of the ideas of an “open texture” of law. The author demonstrates that the development of the analytic tradition in jurisprudence has shown that the criticism of language and the interpretation of meanings are not technical tasks, but it presupposes the construction of a metaphysics of law. In this regard, the author concludes: the development of the ideas of the analytic tradition in jurisprudence demonstrates that the thesis about the absence of a positive program in analytic philosophy, put forward in the first article of the discussion, can be challenged. (shrink)

In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly (...) class='Hi'>legal conception from the rather narrow viewpoint of the study of law's normativity, it is less attractive than the latter from the broader viewpoint of the study of the nature of law. I then distinguish between a moral and a strictly legal conception of the normative force of legal justification, and argue that legal positivists may without contradiction embrace the moral conception, and that therefore the analysis of the normative force of legal justification need not be a problem for legal positivists. I conclude that, on the whole, we have reason to prefer legal positivism to natural law theory. I begin by introducing the subject of jurisprudence . I then introduce the natural law/legal positivism debate, suggesting that we ought to understand it as a debate about the proper way to explicate the concept of law . I proceed to argue that legal decision‐making is a matter of applying legal norms to facts, and that syllogistic reasoning plays a prominent role in legal decision‐making thus conceived . Having done that, I discuss law's normativity , the normative force of legal justification , and the relation between the former and the latter . I conclude with a critical comment on Joseph Raz’ understanding of the question of law's normativity. (shrink)

This study examines how the sell-side analysts interpret firms’ corporate social responsibility activities. Specifically, we examine the differential impact of overall, legal, and normative CSR on the analysts’ earnings forecast dispersion, stock return volatility, cost of equity capital, and firm value. Employing a sample of U.S. public firms during 1993–2009, we find that overall CSR intensities reduce analyst dispersion of earnings forecast, volatility of stock return and cost of capital , and increase firm value. However, its impact is reduced (...) for firms with better accounting and disclosure quality. When we disaggregate CSR into legal and normative CSR, we find that legal CSR decreases analysts’ dispersion, stock return volatility, and COC, while legal CSR increases firm value. The sell-side analysts tend to have less information asymmetry regarding the net benefits of pursuing CSR that is required by laws. We find, however, that the benefit of having normative CSR realized in 1 year lag such that analyst dispersion, stock return volatility, COC decrease, respectively, and firm value increases. Furthermore, we find that the benefit of normative CSR is offset for firms with higher accounting and disclosure quality. (shrink)

This paper argues for a theory of the rule of law that is inclusive of sentient non-human animals. It critiques the rule of law theories of Fuller, Waldron, and Allan, by showing that their theories presuppose that the legal subject is a person who can be guided by legal norms. This unduly excludes non-human animals, as well as certain humans who do not have rational capacities. If we view the basic idea of the rule of law as restraining (...) arbitrary power, then rule of law theories need to give an account of who can be a potential victim of such power. Non-human animals and humans, whether endowed with rational capacities or not, can all be victims of arbitrary power. So, we need a new rule of law theory which is inclusive of all sentient animals, humans and non-human alike. This paper sets out such an inclusive theory. (shrink)

This paper focuses on the normative analysis—in the sense of the classic decision-theoretic formulation—of decision problems that arise in connection with forensic expert reporting. We distinguish this analytical account from other common types of decision analyses, such as descriptive approaches. While decision theory is, since several decades, an extensively discussed topic in legal literature, its use in forensic science is more recent, and with an emphasis on goals such as the analysis of the logical structure of forensic expert (...) conclusions regarding, for example, propositions of common source of evidential and known materials. Typical examples are so-called identification decisions, especially categorical conclusions according to which fingermarks come from a particular a person of interest. We will present and compare ways of stating forensic identification decisions in decision-theoretic terms and explain their underlying rationale. In particular, we will emphasize the importance of viewing this analysis as normative in the sense of providing a reflective rather than a prescriptive reference point against which people in charge of forensic identification decisions may compare their otherwise intuitive and informal reasoning, before acting. Normative decision analysis in forensic science thus provides a vector through which current practice can be articulated, scrutinized and rethought. (shrink)

The few passages in Spinoza’s work in which he focuses on the concept of human law have not received as much scholarly attention as passages focused on other themes, but they have still been very well examined. It is true that most of these studies do not directly aim to determine whether Spinoza adopts a normative conception of human law in the political-legal field or, if he does adopt such a conception, what the conditions under which he could do (...) so could be, given the logical-causal necessitarianism and naturalism of his metaphysics, explicitly reaffirmed in paragraph 3 of Chapter IV of the TTP. However, this problem is unavoidable, and it is precisely to this matter that I would like to contribute, in a rather modest way, by examining the answer that Spinoza himself offers in the passage just cited. My purpose is to demonstrate that these four paragraphs clarify how and why Spinoza can introduce a source of regulation of our actions (which is referred to by the expression “ab placito humanum”) that is different from the principles that necessarily follow from our nature without violating the basic tenets of his metaphysics. (shrink)

This paper and its companion (‘‘The Planning Theory of Law I: The Nature of Legal Institutions’’) provide a general introduction to Scott Shapiro’s Planning Theory of Law as developed in his recent book Legality. The Planning Theory encompasses both an account of the nature of legal institutions and an account of the nature of legal norms. The first paper concerns the account of legal institutions. This paper concerns the account of legal (...) norms. (shrink)

The article reflects on the possibility of conceptualising the complex problem of the normativity of international legal rules, including in particular the phenomenon of “relative normativity.” The author utilises the critical potential of Ronald Dworkin's proposal for a new philosophy of international law to reflect on the classical accounts explaining normativity of international law. By building on Dworkin's argument, the author argues for a constitutional account of international law. The far-reaching constitutional proposals may provide a (...) more complex and coherent set of possible rationalisations of international legal rules. International law is in great need of a comprehensive theory that could better explain its normative character as well as its sources, and it is argued that international constitutionalism has the potential to serve this purpose. (shrink)

According to Hart’s concept of law one of the distinctive characteristics of a legal order is that it is sustainable on the basis of official acceptance alone. Can we go further and say that law is morally risky in the sense that it is endemically liable to become alienated from its subjects? On the basis of Hart’s weak formulation of acceptance there is nothing to suppose that acceptance and (an absence of) alienation are connected. However, on closer inspection, this (...) weak formulation is defective, failing to account for the normative and collective aspect of the law qua social norm. Pursuing a stronger notion of acceptance as a critical reflective attitude does establish a link between acceptance and (an absence of) alienation, but it fails to establish that the legal regime is, by its nature, endemically alienating in a way that a pre-legal regime is not. It does, however, help to explain why any official-centred picture of the legal regime is problematic in terms of accounting for law’s normativity. Whether alienation materializes, it is concluded, depends on the social and political factors that condition our attitude towards the law rather than on the nature of law as such. (shrink)

With a new foreword by Paul Kelly 'I regard Hayek's work as a new opening of the most fundamental debate in the field of political philosophy' - Sir Karl Popper 'This promises to be the crowning work of a scholar who has devoted a lifetime to thinking about society and its values. The entire work must surely amount to an immense contribution to social and legal philosophy' - Philosophical Studies Law, Legislation and Liberty is Hayek's major statement of political (...) philosophy and one of the most ambitious yet subtle defences of a free market society ever written. A robust defence of individual liberty, it is also crucial for understanding Hayek's influential views concerning the role of the state: far from being an innocent bystander, he argues that the state has an important role to play in defending the norms and practices of an ordered and free society. His arguments had a profound influence on the policies of Thatcher in the 1980s and resonate today in visions of the 'Big Society'. First published in three separate volumes, this Routledge Classics edition makes one of his most important books available in a single volume. Essential reading for understanding the background to the recent world economic turmoil and financial crisis, it also foreshadows the subsequent heated debate about regulation and political governance if such disasters are to be avoided in the future. (shrink)

I address a question in moral metaphysics: How are conflicts between moral obligations possible? I begin by explaining why we cannot give a satisfactory answer to this question simply by positing that such conflicts are conflicts between rules, principles, or reasons. I then develop and defend the “Dispositional Account,” which posits that conflicts between moral obligations are conflicts between the manifestations of obligating dispositions (obligating powers, capacities, etc.), just as conflicts between physical forces are conflicts between the manifestations of (...) (certain) causal dispositions (causal powers, capacities, etc.). This account combines the so-called “moral forces” interpretation of prima facie obligations with a dispositional moral metaphysic according to which the metaphysical grounds of moral obligations are not rules or laws, but rather real, irreducibly dispositional properties (or powers) of moral agents and patients. My principal aims are to offer a theoretically attractive and suitably metaphysical account of conflicts of obligation, and to show that the dispositional moral metaphysic that grounds the Dispositional Account can explain and accommodate plausible normative views that rule- and law-based alternatives cannot, as well as to answer objections that have been pressed against other accounts of moral conflict (especially Ross’s) that appeal to moral dispositions or forces. (shrink)

A number of philosophers in recent years have maintained that H. L. A. Hart in The Concept of Law propounded an expressivist account of the semantics of the legal statements that are uttered from the internal viewpoint of the people who run the institutions of legal governance in any jurisdiction. Although the primary aim of this article is to attack the attribution of that semantic doctrine to Hart, the article will begin with some metaphysical matters—the matters of (...) reductionism and naturalism—that often lie behind the development of expressivist approaches to the semantics of normative discourse. After briefly exploring those metaphysical concerns (to which I will return later), the article will begin its main discussion by rehearsing the distinction between the semantics and the pragmatics of utterances. It will then delineate the doctrine of expressivism which the aforementioned philosophers have in mind when they ascribe that doctrine to Hart. Although I will make reference to a few such philosophers, I will focus chiefly on an article by Kevin Toh that has been the fountainhead of all the subsequent attributions of expressivism to Hart. As will be argued herein, Toh and like‐minded philosophers have gone astray in imputing to Hart a semantic version of expressivism. Notwithstanding that Hart’s theory of law can aptly be characterized as expressivist, that characterization is appropriate only when expressivism is understood as an account of the pragmatics of legal statements rather than as an account of their semantics. (shrink)

The first-ever multivolume treatment of the issues in legal philosophy and general jurisprudence, from both a theoretical and a historical perspective. The work is aimed at jurists as well as legal and practical philosophers. Edited by the renowned theorist Enrico Pattaro and his team, this book is a classical reference work that would be of great interest to legal and practical philosophers as well as to jurists and legal scholar at all levels. The work is divided (...) in two parts. The theoretical part, consisting of five volumes, covers the main topics of the contemporary debate; the historical part, consisting of six volumes, accounts for the development of legal thought from ancient Greek times through the twentieth century. The entire set will be completed with an index. Volume 6: A History of the Philosophy of Law from the Ancient Greeks to the Scholastics 2nd revised edition, edited by Fred D. Miller, Jr. and Carrie-Ann Biondi Volume 6 is the first of the Treatise’s historical volumes and is dedicated to the philosophers’ philosophy of law from ancient Greece to the 16th century. The volume thus begins with the dawning of legal philosophy in Greek and Roman philosophical thought and then covers the birth and development of European medieval legal philosophy, the influence of Judaism and the Islamic philosophers, the revival of Roman and Christian canon law, and the rise of scholastic philosophy in the late Middle Ages, which paved the way for early-modern Western legal philosophy. This second, revised edition comes with an entirely new chapter devoted to the later Scholastics and an epilogue on the legacy of ancient and medieval thought for modern legal philosophy, as well as with updated references and indexes. (shrink)

In a departure from the mainstream methodology of a positivist-oriented jurisprudence, Collective Rights provides the first legal-theoretical treatment of this area. It advances a normative-moral standpoint of 'value collectivism' which goes against the traditional political philosophy of liberalism and the dominant ideas of liberal multiculturalism. Moreover, it places a theoretical account of collective rights within the larger debate between proponents of different rights theories. By exploring why 'collective rights' should be differentiated from similar legal concepts, the relationship (...) between collective and individual rights and why groups should be recognised as the third distinctive type of right-holders, it presents the topic as connected to the larger philosophical debate about international law of human rights, most notably to the problem of universality of rights. (shrink)

This chapter contains sections titled: Externalist Accounts Internalist Accounts Descriptivist Accounts Naturalized Jurisprudence Conclusion References.

In Between Facts and Norms, Jürgen Habermas works out the legal and political implications of his Theory of Communicative Action (1981), bringing to fruition the project announced with his publication of The Structural Transformation of the Public Sphere in 1962. This new work is a major contribution to recent debates on the rule of law and the possibilities of democracy in postindustrial societies, but it is much more. The introduction by William Rehg succinctly captures the special nature of the (...) work, noting that it offers a sweeping, sociologically informed conceptualization of law and basic rights, a normative account of the rule of law and the constitutional state, an attempt to bridge normative and empirical approaches to democracy, and an account of the social context required for democracy. Finally, the work frames and caps these arguments with a bold proposal for a new paradigm of law that goes beyond the dichotomies that have afflicted modern political theory from its inception and that still underlie current controversies between so-called liberals and civic republicans. The book includes a postscript written in 1994, which restates the argument in light of its initial reception, and two appendixes, which cover key developments that preceded the book. Habermas himself was actively involved in the translation, adapting the text as necessary to make it more accessible to English-speaking readers. (shrink)