Rules are a central component of such diverse enterprises as law, morality, language, games, religion, etiquette, and family governance, but there is often confusion about what a rule is, and what rules do. Offering a comprehensive philosophical analysis of these questions, this book challenges much of the existing legal, jurisprudential, and philosophical literature, by seeing a significant role for rules, an equally significant role for their stricter operation, and making the case for rules as devices for the allocation of power (...) among decision-makers. (shrink)

Ideal for undergraduate courses in philosophy of law, this comprehensive anthology examines such topics as the concept of law, the dispute between natural law theorists and legal positivists, the relations between law and morality, criminal responsibility and legal punishment, the rights of the individual against the state, justice and equality, and legal evidence as compared with scientific evidence. The readings have been selected from both philosophy and law journals and include classic texts, contemporary theoretical developments, and well-known recent court cases. (...) The text features extensive introductions that make even the most profound writings accessible to undergraduates. (shrink)

The essays in this volume are all concerned with the arguments about law as a system of rule-based decision-making,particularly the ideas advanced by legal philosopher Frederick Schauer. Schauer's work has not only helped revive interest in legal formalism but has also helped relocate arguments about the relationship between posited rules and morality. The contributors to this volume, themselves distinguished theorists, have concentrated on three aspects of Schauer's work: the nature of jurisprudential description; his theory of presumptive positivism; (...) and the application of his theory of rule-based decision-making to other areas of legal and moral thought. Contributors: Larry Alexander, Brian Bix, Philip Bobbitt, Marianne Constable, Michael C. Dorf, Jeremy Elkins, Claire Oakes Finkelstein, Leo Katz, Jason Johnston, Dennis Patterson. (shrink)

A noticeable shift in focus has occurred in public discourse from What is our best course of action? to What are the true facts of the situation? At the center of these debates are questions on the proper use of evidence, Legal scholar Schauer offers clarity based on how legal systems grapple with these questions-and by drawing insights from psychology, philosophy, economics, history, and decision theory.

David A. J. Richards, Sex, Drugs, Death and the Law: An Essay on Human Rights and Overcriminalization Totowa, N.J.: Rowman and Littlefield, 1982, xii + 316 pp.

Legal decisions and theories are frequently condemned as formalistic, yet little discussion has occurred regarding exactly what the term "'formalism" means. In this Article, Professor Schauer examines divergent uses of the term to elucidate its descriptive content. Conceptions offormalism, he argues, involve the notion that rules constrict the choice of the decisionmaker. Our aversion to formalism stems from denial that the language of rules either can or should constrict choice in this way. Yet Professor Schauer argues that this (...) aversion to formalism should be rethought: At times language both can and should restrict decisionmakers. Consequently, the term "'formalistic" should not be used as a blanket condemnation of a decisionmaking process; instead the debate regarding decision according to rules should be confronted on its own terms. (shrink)

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)

Philosophical debates over statistical evidence have long been framed and dominated by L. Jonathan Cohen's Paradox of the Gatecrasher and a related hypothetical example commonly called Prison Yard. These examples, however, raise an issue not discussed in the large and growing literature on statistical evidence – the question of what statistical evidence is supposed to be evidence of. In actual practice, the legal system does not start with a defendant and then attempt to determine if that defendant has committed some (...) unspecified or under-specified act, as these examples appear to suppose. Rather, both criminal and civil litigation start with a sufficiently specified act and then attempt to determine if the defendant has committed it. And when we start with a more fully specified act, the statistics look very different, and these prominent examples no longer present the paradox they are claimed to support. Examining the issue of specification, however, does more than simply undercut the prominent examples in a long and extensive literature. The examination also raises normative issues challenging the legal system's traditional reluctance to base liability on the conjunction of probabilities. (shrink)

In this paper I want to do the following things. First I want to show that in the part of the Theaetetus where the relationship between knowledge and perception is examined, the concept of knowledge that is in question is very clearly characterized. We are left in no doubt as to what is to count as knowing. Secondly I want to unravel in some detail the case that Socrates puts on Protagoras’ behalf where he draws on what Protagoras actually wrote (...) (151 E-152C); as opposed to what he may have taught secretly to his pupils (152C-160D). Thirdly I wish to argue that if we let the dialogue speak for itself, it is manifest that this case put up on Protagoras’ behalf at 151 E-152C is not overthrown; it is not even shaken. (shrink)

What is it for something to have a nature? And what is it for law to have a nature? Analysis of the concept of law has often been taken to be a search for the essential features of law, but it is not clear that the nature of a phenomenon or artifact is better explained by its essential features than by its common ones. And it is not clear that necessary truths have more explanatory value than typical truths. Especially -- (...) but not necessarily - if we recognize the possibility that law is a cluster concept, the value of explaining the widespread but not strictly necessary features of law in explaining law itself becomes more apparent. The jurisprudential project of differentiating law from other social phenomena is an important one, but the distinction may be a fuzzy one and not susceptible either to sharp demarcation or to specification of essential features of law that will assist in differentiation. But if we inquire into what typically or usually or almost always characterizes law rather than what necessarily characterizes it, we may make genuine progress in distinguishing law from the social phenomena to which it is adjacent but with which it is not congruent. (shrink)

Pierluigi Chiassoni’s Interpretation without Truth1 is a profoundly important book. And the book is important not only because of its deep, thorough, and impeccably fair analysis of numerous perspe...

In this paper I want to do the following things. First I want to show that in the part of the Theaetetus where the relationship between knowledge and perception is examined, the concept of knowledge that is in question is very clearly characterized. We are left in no doubt as to what is to count as knowing. Secondly I want to unravel in some detail the case that Socrates puts on Protagoras’ behalf where he draws on what Protagoras actually wrote (...) ; as opposed to what he may have taught secretly to his pupils. Thirdly I wish to argue that if we let the dialogue speak for itself, it is manifest that this case put up on Protagoras’ behalf at 151 E-152C is not overthrown; it is not even shaken.In that part of the dialogue where the question is under examination whether or not knowledge and perception are the same, Socrates uses an idealized concept of knowledge. That is, he restricts the use of the word by setting down what he will consider to be the essential characteristics of knowledge, the sufficient and necessary conditions of its being instantiated. An excellent piece of philosophical procedure. (shrink)

Using the right to die and the United States Supreme Court case of Cruzan v. Director, Missouri Department of Health as exemplars, this article explores the notion of third-order decisionmaking. If first order decisionmaking is about what should happen, and second-order decisionmaking is about who should decide what should happen, then third-order decisionmaking is about who should decide who decides. This turns out to be an apt characterization of constitutionalism, which is centrally concerned with the allocation of responsibility for making (...) decisions about the allocation of responsibility. Deference to erroneous second-order decisions, as in the Cruzan case itself, may merely be an example of this central feature of constitutionalism. Keywords: constitutionalism, Cruzan case, right-to-die, rules CiteULike Connotea Del.icio.us What's this? (shrink)

Because anticipated and retrospective regret play important roles in practical deliberation and motivation, better understanding them can illuminate the contours of human agency. However, the possibility of self-ignorance and the fact that we change over time can make regret—especially anticipatory regret—not only a poor predictor of where the agent will be in the future but also an unreliable indicator of where the agent stands. Granting these, this paper examines the way in which prospective and, particularly, retrospective regret can nevertheless yield (...) important insight into the sorts of creatures we are, both generally and individually. The experience of retrospective regret can show a person she values something in a way she did not know or that she is (or was) a different person than she had thought, insights which can factor into forward-looking, or prospective, deliberation. Such instances of revelatory regret reveal something to the agent about herself as agent. I examine two cases of agential self-ignorance. In the first, the experience of regret reveals what the agent values, not only to others but even to the agent himself. In the second, the agent anticipates experiencing regret for an action but does not experience the regret, suggesting that the agent did not value the rejected alternative in the way she thought. Anticipatory regret is forward-looking and can play an important role in practical deliberation. But insofar as anticipatory regret flows from one’s imperfect judgment and prospection about oneself, retrospective regret can be an important corrective in helping the agent understand her own standpoint. (shrink)

Ever since Jeremy Bentham wrote his scathing critique of the law of evidence, both philosophers and legal scholars have criticized the exclusionary rules of evidence, arguing that formal rules excluding entire classes of evidence for alleged unreliability violate basic epistemological maxims mandating that all relevant evidence be considered. Although particular pieces of evidence might be excluded as unreliable, they argue, it is a mistake to make such judgments for entire categories, as opposed to making them only in the context of (...) particular pieces of evidence offered for specific purposes. This paper challenges these claims, arguing that rule-based exclusions serve similar purposes to those served by rules in rule-consequentialist moral theories, and that, even more importantly, they are entirely consistent with the exclusionary nature of legal rules in general. Indeed, once we see the role that exclusionary rules might serve in legal epistemology, we can see that they might have a role to play in epistemic appraisal more generally. (shrink)

A rash of very public scandals, of which the behavior of President Clinton and the activities of the late Princess Diana are merely the most famous examples, has raised the question of the appropriateness of the disclosure, or the newsworthiness, of the so-called “private” lives of so-called “public” figures or “public” officials. That is the question I address in this essay.

Looked at from the perspective of an American constitutionalist, individualrights is a familiar phrase. In its reference to the idea that individuals have rights against the government and against the majority, 1 the phrase has a meaning that is now relatively well understood. In a different sense, however, the phrase might be taken to suggest that there is something necessarily or essentially individual, and thus particular, about the very idea of a right. Harking back to the Legal Realist positions that, (...) first, a right is nothing more than a statement that a particular individual has an enforceable claim against another particular individual (or entity), 2 and, second, that a right is simply the ex post statement of the outcome of a particular lawsuit, 3 the idea has spread that rights are particular, individual, and contextual. Indeed, a recent article entitled RightsAgainstRules:TheMoralStructureofAmericanConstitutionalLaw< 4 announced in its title a conception of rights suggesting that rights are in their nature particular, and are thus to be contrasted with, and counterpoised against, necessarily general rules. (shrink)

In his newly updated version of The Anatomy of a Constitutional Law Case, Alan F. Westin provides a documentary portrait of historically important constitutional law case, 'Youngstown Sheet & Tube Co. v. Sawyer, ' from its rise in a bargaining dispute in the steel industry during 1952 to the aftermath of its decision by the United States Supreme Court. Westin has added to his classic book additional materials and personal commentaries collected since the work was first published. The new information (...) covers what went on within the Truman administration, what went on within the Supreme Court when analyzing and resolving issues that come before it. Westin includes selections from transcripts, briefs and other official proceedings, adds notes describing each phase of the constitutional process, and a section of commentary and questions relating this case to others. (shrink)

In the Principles of the Penal Code, Jeremy Bentham described offences that he labelled presumed or evidentiary. The conduct penalized under such offences is punished not because it is intrinsically wrong, but because it probabilistically indicates the presence of an intrinsic wrong. Bentham was sceptical of the need to create offences, but grudgingly accepted their value in light of deficiencies in procedure and the judiciary. These days the scepticism is even greater, with courts and commentators in the United States, Canada, (...) the United Kingdom and elsewhere believing that such offences deny a defendant the right to establish that he did not engage in the conduct that the presumed offence probabilistically but not necessarily indicates. On closer analysis, however, such scepticism appears unjustified. Almost all offences, and indeed almost all legal rules, are premised on a probabilistic relationship between the behaviour the rule encompasses and the behaviour that is the rule-maker's real concern. Presumed offences may make this relationship especially obvious, but it is a relationship that exists whenever the law operates by the use of rules. (shrink)

For an academic, there is no greater reward than having one's scholarship taken seriously. The five distinguished scholars who have contributed to this symposium on The Force of Law have done just that, with varying degrees of agreement and disagreement, praise and criticism. But even critical commentary, and perhaps especially critical commentary, is evidence of serious engagement. More importantly, the commentaries contained here have advanced our understanding of law in valuable ways. I respond to each in this reply, but with (...) full acknowledgment that my responses cannot do justice to the full breadth of their contributions and challenges. My hope is not that I will persuade readers that I am correct and my critics mistaken, but rather that the reader who absorbs both the challenges and my response will come away with a greater understanding of the issues that The Force of Law seeks to place on the agenda of contemporary jurisprudence. (shrink)

Brian Leiter’s Why Tolerate Religion? valuably clarifies the issues involved in granting religion-specific accommodations to laws and policies of general application. His arguments are careful, rigorous, and fair, and in rejecting the deontological arguments for religion-specific accommodations he seems to me largely correct. But when he turns to arguing against the utilitarian case for such accommodations, he employs a seemingly non-standard sense of utilitarianism in which demands of principled consistency constrain what would otherwise be utilitarian welfare-maximization. A more traditional and (...) stronger version of utilitarianism, however, has room for seemingly unprincipled or even irrational distinctions as long as employing those distinctions is utility- or welfare-maximizing. And thus although Leiter’s arguments against the deontological justifications for religion-specific accommodations are largely successful, his arguments against utilitarian justifications, by relying more heavily on the notion of “principle” than a utilitarian should accept, are open to challenge. (shrink)

Psychologists have recently begun to study the psychological dimensions of judging, but to date almost all of the research has been on lay experimental subjects. Implicit in the research, therefore, is that the judge's attributes as a human bring are more important than the judge's attribute's as lawyer and/or as judge in explaining judicial behavior. This may possibly be true, and it is relatively consistent with a Legal Realist understanding of judges and judging, but there remains a need for research (...) directed specifically to the question whether judges by virtue of legal training, self-selection to judging, or judicial experience think and reason and make decisions differently from lay people. More specifically, when judges engage in tasks typically reserved to judges - finding and interpreting the relevant law, most prominently - are their cognitive processes different from those of lay people engaged in analogous tasks, and from those of lay people engaged in different and more fact-focused tasks? Until we can answer these questions based on systematic research, we will not know whether there is a psychology of judging at all, as opposed simply to general psychology applied to some of the tasks in which judges, like all other decision makers, engage. (shrink)