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)
This article delineates some of the main issues that are debated by philosophers of law. It explores the connections between legal philosophy and other areas of philosophy, while also seeking to specify the distinctiveness of many of the concerns that have preoccupied philosophers of law. It illustrates its abstract points with examples focused on the separability of law and morality, the nature of the rule of law, the nature of rights, justifications for the imposition of punishment, and the identification of (...) basic legal entitlements. (shrink)
Debate has long been waged over the morality of capital punishment, with standard arguments in its favour being marshalled against familiar arguments that oppose the practice. In The Ethics of Capital Punishment, Matthew Kramer takes a fresh look at the philosophical arguments on which the legitimacy of the death penalty stands or falls, and he develops a novel justification of that penalty for a limited range of cases. -/- The book pursues both a project of critical debunking of the familiar (...) rationales for capital punishment and a project of partial vindication. The critical part presents some accessible and engaging critiques of major arguments that have been offered in support of the death penalty. These chapters, suitable for use in teaching courses on capital punishment, valuably take issue with positions at the heart of contemporary debates over the morality of such punishment. -/- The book then presents an original justification for executing truly terrible criminals, a justification that is free-standing rather than an aspect or offshoot of a general theory of punishment. Its purgative rationale, which has not heretofore been propounded in any current philosophical and practical debates over the death penalty, derives from a philosophical reconception of the nature of evil and the nature of defilement. -/- As the book contributes to philosophical discussions of those phenomena, it also contributes importantly to general normative ethics with sustained reflections on the differences between consequentialist approaches to punishment and deontological approaches. Above all, the volume contributes to the philosophy of criminal law with a fresh rationale for the use of the death penalty and with probing assessments of all the major theories of punishment that have been broached by jurists and philosophers for centuries. Although the book is a work of philosophy by a professional philosopher, it is readily accessible to readers who have not studied philosophy. It will stir both philosophers and anyone engaged with the death penalty to reconsider whether the institution of capital punishment can be an appropriate response to extreme evil. -/- . (shrink)
Two recent high-quality articles, including one in this journal, have challenged the Inclusivist and Incorporationist varieties of legal positivism. David Lefkowitz and Michael Giudice, writing from perspectives heavily influenced by the work of Joseph Raz, have endeavored—in sophisticated and interestingly distinct ways—to vindicate Raz's contention that moral principles are never among the law-validating criteria in any legal system nor among the laws that are applied as binding bases for adjudicative and administrative decisions in such a system. The present article (...) responds to their defenses of Raz's Exclusive Legal Positivism. (shrink)
Legal positivism’s multi-faceted insistence on the separability of law and morality includes an insistence on the thoroughly conventional status of legal norms as legal norms. Yet the positivist affirmation of the conventionality of law may initially seem at odds with the mind-independence of the existence and contents and implications of legal norms. Mind-independence, a central aspect of legal objectivity, has been seen by some theorists as incompatible with the mind-dependence of conventions. Such a perception of incompatibility has led some anti-positivist (...) theorists to reject the notion of law’s conventionality, and has led some positivist theorists to query law’s mind-independence. What will be contended here is that both camps are mistaken. (shrink)
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)
At least since the publication of Isaiah Berlin's famous essay "Two Concepts of Liberty" nearly half a century ago, political philosophers have argued vigorously over the relative merits of "positive" and "negative" accounts of freedom. Matthew Kramer writes squarely within the negative-liberty tradition, but he incorporates a number of ideas that are quite often associated with theories of positive liberty. Much of The Quality of Freedom is devoted to elaborating the necessary and sufficient conditions for the existence of particular freedoms (...) and unfreedoms; however, the book's cardinal objective is to establish the measurability of each person's overall freedom and of each society's aggregate freedom. On the one hand, Kramer contends that the existence of any particular instance of liberty or unfreedom is a matter of fact that can be confirmed or disconfirmed without any reliance on evaluative or normative considerations. On the other hand, he argues that the extent of each person's overall freedom or unfreedom cannot be ascertained entirely in the absence of evaluative assumptions. By combining those two positions and developing them in detail, Kramer pits himself against all positive accounts of liberty and most negative accounts. In the course of so doing, he aims to demonstrate the rigorous measurability of overall liberty - something that many writers on freedom have casually dismissed as impossible. Although Kramer concentrates principally on constructing a systematic analysis of sociopolitical freedom, he engages critically with the work of many of the leading contemporary writers on the topic. (shrink)
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)
Edited by leading contributors to the literature, Freedom: An Anthology is the most complete anthology on social, political and economic freedom ever compiled. Offers a broad guide to the vast literature on social, political and economic freedom. Contains selections from the best scholarship of recent decades as well as classic writings from Hobbes, Locke, Rousseau and Kant among others. General and sectional introductions help to orient the reader. Compiled and edited by three important contributors to the field.
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.
Ronald Dworkin has long criticized legal positivists for their efforts to distinguish between legal and non-legal standards of conduct that are incumbent on people. Recently, Dworkin has broached this criticism in his hostile account of the debates between Incorporationist Legal Positivists and Exclusive Legal Positivists. Specifically, he has maintained that Incorporationists cannot avoid the unpalatable conclusion that the axioms and theorems of arithmetic are legal norms. This article shows why such a conclusion is indeed avoidable and why Dworkin's criticism is (...) therefore wide of the mark. (shrink)
Some important recent articles, including one in this journal, have sought to devise theories of rights that can transcend the longstanding debate between the Interest Theory and the Will Theory. The present essay argues that those efforts fail and that the Interest Theory and the Will Theory withstand the criticisms that have been levelled against them. To be sure, the criticisms have been valuable in that they have prompted the amplification and clarification of the two dominant theories of rights; but (...) their upshot has been to reveal the need for the improvement, rather than the abandonment, of those theories. (shrink)
This essay argues against the commonly held view that "ought" implies "can" in the domain of morality. More specifically, I contest the notion that nobody should ever be held morally responsible for failing to avoid the infliction of any harm that he or she has not been able to avoid through all reasonably feasible precautions in the carrying out of some worthwhile activity. The article explicates the concept of a moral right in order to show why violations of moral rights (...) can occur even when no one has acted wrongfully in any fashion. In so doing, it will effectively be maintaining that strict liability (i.e., liability irrespective of the presence or absence of culpability) exists in morality as well as in law. When we take account of the distinction between exoneration and extenuation, we can see that scrupulously thorough precautions are never sufficient to constitute an excuse in morality. Having made that point with some extended examples, the article goes on to consider a number of possible objections - objections that lead into discussions of some basic distinctions within moral philosophy and some central principles within deontic logic. (shrink)
This article explores some implications of the counterfactual aspect of freedom and unfreedom. Because actions can be unprevented even if they are not undertaken, and conversely because actions can be prevented even if they are not attempted and are thus not overtly thwarted, any adequate account of negative liberty must ponder numerous counterfactual chains of events. Each person's freedom or unfreedom is affected not only by what others in fact do, but also by what they are disposed to do. Their (...) dispositions play a key role in determining whether the abilities and inabilities of each person would continue as such if the person's conduct or situation were altered in various respects. Until one knows whether people would or would not have acted in certain ways if a given person had sought to do something, one cannot know whether that person was free to do that thing. Nor can one know whether the person was free to perform that action in combination with manifold subsequent actions. Thus, whether tacit or explicit, counterfactual scenarios are indispensable for any enquiry into a person's liberty. By relying (albeit perhaps only implicitly) on such scenarios, which trace how people are disposed to act vis-a-vis one another, one takes account of the central role of unmanifested dispositions in setting the bounds of people's sociopolitical freedom. Among the principal theorists whose work is critically examined in this article are Hillel Steiner, Ian Carter, and G.A. Cohen. Key Words: freedom liberty unfreedom negative liberty counterfactuals disposition. (shrink)
In a recent full‐length review of Matthew Kramer's In Defense of Legal Positivism, David Dyzenhaus has attacked legal positivists' accounts of adjudication and their views of the relationship between law and morality. The present essay defends legal positivism against his strictures, by arguing that he has misunderstood specific texts and the general lines of enquiry which the positivists pursue.
During the past few decades, Quentin Skinner has been one of the most prominent critics of the ideas about negative liberty that have developed out of the writings of Isaiah Berlin. Among Skinner?s principal charges against the contemporary doctrine of negative liberty is the claim that the proponents of that doctrine have overlooked the putative fact that people can be made unfree to refrain from undertaking particular actions. In connection with this matter, Skinner contrasts the present-day theories with the prototypical (...) liberal account of negative freedom propounded by Thomas Hobbes. The present essay challenges Skinner?s position both philosophically and exegetically. Because an agent can always elect to cease his activity as an agent, the ostensible inescapability of certain actions is not the same as the outright inescapability of certain instances of inaction. Once this point is properly recognized, the way is clear for a re-evaluation of Hobbes (and of Skinner on Hobbes). (shrink)
In this wide-ranging investigation of leading issues in contemporary legal and political philosophy, distinguished philosophers and legal theorists tackle issues such as the rights of animals, the role of public-policy considerations in legal reasoning, the appropriateness of compensation as a means of rectifying mishaps and misdeeds, the extent of individuals' responsibility for the consequences of their choices, and the culpability of failed attempts to commit crimes.
This book is an uncompromising defense of legal positivism that insists on the separability of law and morality. After distinguishing among three facets of morality, Kramer explores a variety of ways in which law has been perceived as integrally connected to each of those facets. The book concludes with a detailed discussion of the obligation to obey the law--a discussion that highlights the strengths of legal positivism in the domain of political philosophy as much as in the domain of jurisprudence.
This collection of essays forms a lively debate over the fundamental characteristics of legal and moral rights. The essays examine whether rights fundamentally protect individuals' interests or whether they instead fundamentally enable individuals to make choices.
Alan Gewirth has propounded a moral theory which commits him to the view that prescriptions can appropriately be addressed to people who have neither any moral reasons nor any prudential reasons to follow the prescriptions. We highlight the strangeness of Gewirth's position and then show that it undermines his attempt to come up with a supreme moral principle.
This book expounds an analytical method that focuses on paradoxes - a method originally associated with deconstructive philosophy, but bearing little resemblance to the interpretive techniques that have come to be designated as 'deconstruction' in literary studies. The book then applies its paradox-focused method as it undertakes a sustained investigation of Thomas Hobbe's political philosophy. Hobbes's theory of the advent and purpose of government turns out to reveal the impossibility of the very developments which it portrays as indispensable.
John Locke's labor theory of property is one of the seminal ideas of political philosophy and served to establish its author's reputation as one of the leading social and political thinkers of all time. Through it Locke addressed many of his most pressing concerns, and earned a reputation as an outstanding spokesman for political individualism - a reputation that lingers widely despite some partial challenges that have been raised in recent years. In this major new study Matthew Kramer offers an (...) extensive critique of the labor theory and investigates the consequences of its downfall. With incisive analyses of the merits and failings of many aspects of Locke's political thought, Kramer advances a powerful challenge to Locke's image as an individualist. Employing a rigorously philosophical methodology, but remaining aware of the insights generated by historical approaches to Locke, Kramer concludes that Locke's political vision was in fact profoundly communitarian. (shrink)