A recent trend in futures studies has called for strengthening the inclusion of future generations in constitutional law. This is problematic from a practical and a normative viewpoint. This paper introduces a future-oriented theory of democratic constitutionalism that overcomes originalism (which privileges the past) and living constitutionalism (which privileges the present) without resorting to the explicit constitutional protection of the yet unborn. It is divided into five sections. The first challenges the notion that the constitutional entrenchment of the non-overlapping future (...) is the best means of implementing long time horizons in democratic legal systems. The second maintains that constitutions are substantive normative expressions of the ultimate justification of authority. The third demonstrates that the substantive dimension of constitutions is cross-temporal and includes what I call ‘the objective interests in the future’ of all members of the people. The fourth connects such objective interests with rights to political participation. The final section focuses on the cross-temporal role of constitutional adjudication. Because rights to political participation include objective interests in the future and necessarily hold the status of constitutional rights in any legitimate democratic constitution, constitutional adjudication must guarantee their enforcement over government action. (shrink)

The book ‘The Methodology of Constitutional Theory’, edited by Kyritsis and Lakin, is a welcome contribution to the field of public law and legal theory. It is a rich and varied collection of essay...

On the 7th of December 2022, the UK government announced its approval of the country’s first new coal mine in 30 years,2 to be operated for profit by the privately owned West Cumbria Mining Company...

On the 7th of December 2022, the UK government announced its approval of the country’s first new coal mine in 30 years,2 to be operated for profit by the privately owned West Cumbria Mining Company...

This essay is concerned with Brian Leiter’s so-called replacement naturalism, according to which the traditional methodology of conceptual jurisprudence ‘should be replaced by reliance on the best social scientific explanations of legal phenomena.’ I argue that, although the methodology of experimental jurisprudence is the only plausible replacement for the traditional methodology, it cannot can replace the philosophical methods traditionally used to address conceptual issues and, further, that experimental jurisprudence needs a theoretical foundation that properly locates its role relative to that (...) of conceptual theorising and clarifies its methodology. To this end, I discuss three recent studies that attempt to ascertain the intuitions of competent speakers on three longstanding conceptual disputes about law: two attempt to show our folk concept of law is antipositivist, whereas the other attempts to show our folk concept of law is consistent with the existence of sanction-less legal systems. I argue that all three studies suffer from defects indicating the empirical methodology of experimental jurisprudence can supplement, but cannot replace, the traditional philosophical methodology for addressing conceptual questions. I argue, finally and far more worrisomely, that the last study calls into question its usefulness even in supplementing the traditional philosophical methodology. (shrink)

In his 1930 article ‘Changes in the Structure of Political Compromise’ Otto Kirchheimer wrote: “The relationship that persisted between the financial community and the government up to the last cri...

In his 1930 article ‘Changes in the Structure of Political Compromise’ Otto Kirchheimer wrote: “The relationship that persisted between the financial community and the government up to the last cri...

Croce & Salvatore have previously enriched the state of the art on Carl Schmitt’s legal thought, appealing to an ‘institutional turn’ in his thinking between 1928 and 1934,1 through which Schmitt d...

Croce & Salvatore have previously enriched the state of the art on Carl Schmitt’s legal thought, appealing to an ‘institutional turn’ in his thinking between 1928 and 1934,1 through which Schmitt d...

A review of The Cambridge Companion to Legal Positivism (CUP, 2021).

Some companions journey with us; others await our return home. The Cambridge Companion to Legal Positivism1 is, at 800 pages, one of the latter. It is a companion worth returning to, however, as it...

The reversal of Roe v. Wade raises the prospect that other due process guarantees upon which individuals have organised their lives, including the constitutional rights to same-sex intimacy and marriage, will be overturned. These potential upheavals in the hard-won legal infrastructure of basic social status call for a careful look at reliance arguments for sustaining constitutional precedent. When does reliance on a judicial decision provide reason for a court to sustain a precedent in the face of substantial doubts or convictions (...) that the original decision was importantly mistaken?Our commitments to democratic law pose distinctive challenges for reliance arguments in the public law domain that do not burden reliance arguments in the private law domain. A persuasive reliance argument in the public law context must offer a merits-independent rationale identifying limited circumstances in which reliance would justify honouring a prior (mistaken) decision and honouring it prospectively, into the future. I detail the challenges and offer a democratic account to identify when overturning a mistaken decision would impose an unfair and inequitable hardship. On this account, abortion, contraception, and same-sex intimacy rights warrant continued affirmation given reliance behaviours, but not other rights, including rights to gun ownership and freedom of contract. (shrink)

New Constitutional Horizons is a solid and innovative contribution to a debate that has acquired a central position for decades in political and legal theory, but that nonetheless has left many uns...

Jakob Huber's Kant's Grounded Cosmopolitanism: Original Common Possession and the Right to Visit sets out a rich and novel project of Kant interpretation and defence. Huber does well to wed argumen...

Why, then, has Anglo-American jurisprudence remained staunchly indifferent to history? How has it been able to maintain its confident assumption that the analytical and the historical can be neatly...

In Justifying Injustice Justifying Injustice: Legal Theory in Nazi Germany, Herlinde Pauer-Studer analyses the legal theory that Nazi jurists developed to justify the horrifying practices of the to...

In 1985, Swiss legal philosopher Walter Ott visited Herbert Hart in Oxford and made this record of their meeting, which casts novel light on some of Hart’s ideas. Ott engaged Hart in a fresh encounter with the legal philosophy of Gustav Radbruch, particularly Hart’s and Radbruch’s reasons for a minimum content of justice in law. They also discussed the grudge informer, state responsibility under laws of an earlier régime, and questions of the definition and falsifiability of legal theories. Hart surprisingly (...) reported Hans Kelsen as stating, when they had met at Berkeley in 1961, that Hume (and not Kant, and certainly not Wittgenstein) was the greatest philosopher who had ever lived. The translation is accompanied with annotations explaining references, assumptions and contexts. (shrink)

In his seminal work The Concept of Law, H. L. A. Hart observed that the ‘law of every modern state shows at a thousand points the influence of both the accepted social morality and wider moral idea...

New Constitutional Horizons is a solid and innovative contribution to a debate that has acquired a central position for decades in political and legal theory, but that nonetheless has left many uns...

Gustav Radbruch’s famous article Statutory Lawlessness and Supra-Statutory Law1 puts forward two key theses. The first of these, which will not concern me here, is a claim about the nature of law....

Legal theorists tend to focus on disagreement over the law, and yet a theory of law should also explain why lawyers and judges agree on the law as often as they do. To that end, this article first pins down a precise sense in which there can be pervasive agreement on the law. It then argues that such agreement obtains in the United States and likely in many other jurisdictions as well. Finally, it contends that Hartian Positivism offers a straightforward (...) explanation of this phenomenon and, indeed, a better explanation than rival theories, like Ronald Dworkin’s Law as Integrity or Scott Shapiro’s Planning Theory. Given the ubiquity of legal agreement, Hartian Positivism’s explanatory superiority in this regard is a strong, albeit still not dispositive, consideration in its favour. The broader lesson is that theories of law should give greater priority to explaining legal agreement than many theories now do. (shrink)

Kaarlo Tuori’s latest book aims to provide an examination of modern law’s main properties – as he puts it, a ‘legal-theoretical recapitulation’. Three properties in particular characterise modern l...

Appeals to metaphysics have lately come to ascendancy in analytic legal philosophy. Over the last 20 years or so, a new discourse framework has emerged in analytic legal metaphysics that focusses on the explanatory question of how law is made. By any measure the most influential refinement of this question is to be found in Mark Greenberg's seminal 2004 article How Facts Make Law. This essay tries to exert some pressure on this familiar question by posing the categorial question of (...) what type of entities different theories of law take up as ontologically basic for their inquiry. The essay singles out four exemplary avenues for answering the categorial question. Introducing a categorial instead of explanatory lens is an overdue step in the process of updating the metaphysical toolbox of contemporary analytic theories of law. The categorial question of what kind of entity law is ismeant to complement the explanatory question of how law is made in a way that makes disagreements about the metaphysical-explanatory demands of theories of law more tractable or amenable to principled adjudication. (shrink)