Descriptive Jurisprudence

This is part of a proposed monograph on the Law, and jurisprudence and is to be used for understanding punishment through wergild to the early Modern and to even the post-modern. The paper is just a draft and in the future will be published as a monograph.

Several scholars advance the ‘LR-LP thesis’: the claim that American Legal Realism presupposes Legal Positivism. Brian Leiter and Frederick Schauer, prominent scholars of Realism, delimit that thesis to a Razian version of Exclusive Legal Positivism (‘ELP’). This article nevertheless argues that Leiter and Schauer’s respective accounts of Legal Realism are difficult to square with Razian ELP. Indeed, the Realist hypotheses about alternative drivers of official decision, concerning ‘working’ rules, ‘real’ rules, and ‘situation-types’, if correct, actually threaten Razian ELP. -/- Problems (...) arise for the LR-LP thesis (as delimited to Razian ELP) irrespective of whether those three Realist alternative drivers are classified as legal or non-legal norms. If they are non-legal, merits-based norms, then (a) those alternative drivers do much more work within official decision than ELP suggests is the case for those sorts of norms, and (b), Inclusive Legal Positivism may better, and might even be required, to explain them. Alternatively, if those Realist alternative drivers are better understood as source-based legal norms, then they cannot fulfil (or even be claimed by the law to fulfil) certain core functions that ELP attributes to legal norms. (shrink)

Critical review of "The Philosophy of Legal Change," edited by Maciej Chmieliński and Michał Rupniewski, the first volume on its subject matter, with some general remarks on the philosophical methodology of conceptualising legal change.

Alex Sarch’s recent book, Criminally Ignorant: Why the Law Pretends We Know What We Don’t is a wonderfully rich work.1 Sarch provides and defends an explanatorily powerful theory of criminal culpab...

Legal philosophers make a number of bold, contentious claims about the nature of law. For instance, some claim that law necessarily involves coercion, while others disagree. Some claim that all law enjoys presumptive moral validity, while others disagree. We can see these claims in at least three, mutually exclusive ways: (1) We can see them as descriptions of law’s nature (descriptivism), (2) we can see them as expressing non-descriptive attitudes of the legal philosophers in question (expressivism), or (3) we can (...) see them as practical claims about how we should view law or order our society (pragmatism). This paper argues that we should understand these claims in the pragmatist way, as claims about how we should view law or order society. (shrink)

A persistent worry concerning conventionalist accounts of law is that such accounts are ill equipped to account for law’s special normativity. I offer a particular kind of conventionalist account that is based on the practice-dependent account of conventional norms I have offered elsewhere and consider whether it is vulnerable to the Normativity Objection. I argue that it isn’t. It can account for all the ways in which law can justly claim to be normative. While there are ways of being normative (...) that it cannot account for, it is an error to suppose that law is normative in any of those ways. (shrink)

I have argued that law is a genre of institutionalized abstract artifact, meaning that laws are purposive products of human creation designed to signal norms of behavior with respect to them. Its institutional nature is seen in the fact that it is a system of artificial statuses that convey deontic powers to status holders understood in their institutional roles. Following Searle in explaining institutions, however, is also to see the institution as the 'continuing possibility of a practice.' Hence there is (...) no tension in seeing law as both a practice and a genre of artifact. (shrink)

We explain three phenomena in legal discourse in terms of MacFarlane’s assessment-sensitive semantics: incompatible applications of law, assessments of statements about what is legally the case, and retrospective overruling. The claim is that assessment sensitivity fits in with the view, shared by many legal theorists at least with respect to hard cases, that the final adjudicator’s interpretation of legal sources is constitutive of the applied norm. We argue that there are strong analogies between certain kinds of statements in legal discourse (...) as understood in light of that view and discourse about matters of taste and future contingents. Thus, if assessment-sensitive semantics provides a compelling account of discourse about matters of taste and future contingents, then it likewise provides a compelling account of those statements in legal discourse. (shrink)

A textbook written mainly for final year law students taking Jurisprudence at an African university, but that would also be of use to those in a political philosophy course. It includes primary sources from both the Western and African philosophical traditions, and addresses these central questions: what is the nature of law?; how should judges interpret the law?; is it possible for judges to be objective when they adjudicate?; how could the law justly allocate liberty and property?; who is owed (...) duties of justice or moral treatment more generally?; who is obligated to advance justice, say, by aiding others?; how should wrongful harm be compensated?; why and when should lawbreakers be punished? (shrink)

This article surveys methodological matters that shape, drive, and plague analytic legal philosophy. Section 2 briefly explicates conceptual analysis, analytic definitions, and family resemblance concepts. It also argues that central cases are used in more than one way. Section 3 presents criticisms of those concepts and methods, and suggests that some of these difficulties are due to the lack of a shared paradigm regarding a counterexample’s impact. Section 4 explains “meta- theoretical” desiderata. It contends that, to date, legal philosophical appeals (...) to such norms have not been as helpful as some suggest. Section 5 returns to the issue of concept selection by addressing whether legal theorising is an invariably “normative” enterprise. It argues that certain “normativist” methodologies, such as Dworkin’s constructive interpretation and Finnis’ appeal to the central case of the internal point of view, are unnecessary. (shrink)

What is the nature of law and what is the best way to discover it? This book argues that law is best understood in terms of the social functions it performs wherever it is found in human society. In order to support this claim, law is explained as a kind of institution and as a kind of artefact. To say that it is an institution is to say that it is designed for creating and conferring special statuses to people so (...) as to alter their rights and responsibilities toward each other. To say that it is an artefact is to say that it is a tool of human creation that is designed to signal its usability to people who interact with it. This picture of law's nature is marshalled to critique theories of law that see it mainly as a product of reason or morality, understanding those theories via their conceptions of law's function. It is also used to argue against those legal positivists who see law's functions as relatively minor aspects of its nature. -/- This method of conceptualizing law's nature helps us to explain how the law, understood as social facts, can make normative demands upon us. It also recommends a methodology for understanding law that combines elements of conceptual analysis with empirical research for uncovering the purposes to which diverse peoples put their legal activities. (shrink)

Law and Authority Under the Guise of the Good, by Rodriguez-BlancoVeronica. Oxford : Hart Publishing, 2014. Pp. 215.

This book offers an advanced introduction to central questions in legal philosophy. What factors determine the content of the law in force? What makes a normative system a legal system? How does law beyond the state differ from domestic law? What kind of moral force does law have? The most important existing views are introduced, but the aim is not to survey the existing literature. Rather, this book introduces the subject by stepping back from the fray to sketch the big (...) picture, to show just what is at stake in these old debates. Legal philosophy has become somewhat arid and inward looking. In part this is because the disagreement between the main camps on the important questions is apparently intractable. The main aim of the book is to suggest both a diagnosis and a proper practical response to this situation of intractable disagreement about questions that do matter. (shrink)

The literature, as are the intuitions of many, is sceptical as to the coherence of ‘legal rights to do legal wrong’. A right to do wrong is a right against interference with wrongdoing. A legal right to do legal wrong is, therefore, a right against legal enforcement of legal duty. It is, in other words, a right that shields the right holder’s legal wrongdoing. The sceptics notwithstanding, the category of ‘legal right to do legal wrong’ coheres with the concepts of (...) ‘right’ and ‘legality’. In fact, once the parameters and features of the category of ‘legal right to do legal wrong’ are clarified, it becomes apparent that positive law contains actual doctrines that have the structure of a right to do wrong. One example is the doctrine of diplomatic immunity. This, and other examples of normatively sound legal doctrines that constitute legal rights to do legal wrong, demonstrate that such rights are not only conceptually coherent, but at times are normatively valuable. Moreover, looking to the law helps detect a category of rights to do wrong that has thus far gone wholly undetected in the literature, which is immunity from liability for violation of duty. (shrink)

Robert Alexy defines law as including a claim to moral correctness and demonstrating social efficacy. This paper argues that law's social efficacy is not merely an observable fact but is undergirded by moral commitments by rulers that it is possible for their subjects to follow the rules, that the rulers and others will also follow the rules, that subjects will be protected from violence if they act in accordance with the rules, and that subjects will be entitled to legal redress (...) if others act violently towards them otherwise than in accordance with the rules. Alexy is correct in his conclusion that a system of norms that is not by and large socially efficacious is not a valid legal system, but wrong insofar as he follows legal positivism in distinguishing this aspect of law's validity from law's claim to moral correctness. (shrink)

I examine the impact of the presence of anarchists among key legal officials upon the legal positivist theories of H.L.A. Hart and Joseph Raz. For purposes of this paper, an anarchist is one who believes that the law cannot successfully obligate or create reasons for action beyond prudential reasons, such as avoiding sanction. I show that both versions of positivism require key legal officials to endorse the law in some way, and that if a legal system can continue to exist (...) and function when its key officials reject the reason-giving character of law, then we have a reason to re-examine and amend legal positivism. (shrink)

Uses erotetic logic to model the courtroom objection "Asked and Answered!".

Even though it offers a compelling account of the responsibility-component in the negligence standard—arguably the Holy Grail of negligence theory—Professor John Gardner is mistaken in conceptualizing the duty of care in negligence as a duty to try to avert harm. My goal here is to explain why and to point to an alternative account of the responsibility component in negligence. The flaws in conceiving of the duty of care as a duty to try are: failing to comport with the legal (...) doctrine of negligence and failing as a revisionary account for the law; overly burdening autonomy and restricting the liberty of thought; adversely affecting the prevention of negligent harm—the essence of the negligence standard—; and, raising severe probative difficulties. Moreover, the duty of care also does not give rise to what I call a de facto duty to try. The duty of care is better construed to require only certain conduct and not trying. Returning to the primary appeal and motivation for exploring the validity of equating the duty of care with a duty to try—searching for the responsibility-component in the negligence standard—I argue that the responsibility-component in negligence does not take the form of an obligation to try but rather has a conditional form, manifested in the conditions of applicability of the negligence standard. In other words, the negligence standard comprises a conduct-based as opposed to a combined action-/intent-based duty (such as a duty to try) as its duty of care, a duty that only applies to actors who possess the capacity to intentionally or knowingly comply with it, or, put differently, possess the capacity to try. (shrink)

In the space of two decades, social rights have emerged from the shadows and margins of human rights jurisprudence. The authors in this book provide a critical analysis of almost two thousand judgments and decisions from twenty-nine national and international jurisdictions. The breadth of the decisions is vast, from the resettlement of evictees to the regulation of private medical plans to the development of state programs to address poverty and illiteracy. The jurisprudence not only implicates our understanding of economic, social, (...) and cultural rights, but also challenges the philosophical debates that question whether these rights can and should be justiciable. (shrink)

Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity (...) conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond the state. This article aims to use legal positivism to conceptualize a transnational commercial law order. Prevailing positivist accounts at least implicitly condition legal order on state sovereignty. The article offers a cosmopolitan conception of legal positivism, in which the state is no longer an enabling condition for law. The cosmopolitan conception provides the means by which to adequately describe a transnational commercial law order. There are limits to the conceptual analysis this article provides, one of which is that it does not purport to evaluate the justice or morality of transnational legal order. But the cosmopolitan conception of legal positivism elucidated in this article stands on its own as a way of understanding a number of transnational legal orders other than commercial law. The attractiveness of the account is that it describes law as a human social practice even when it is not solely the product of the state, so that we do not have to rely on natural law theories to understand legal rules that states do not maintain. (shrink)

I argue that there is methodological space for a functional explanation of the nature of law that does not commit the theorist to a view about the value of that function for society, nor whether law is the best means of accomplishing it. A functional explanation will nonetheless provide a conceptual framework for a better understanding of the nature of law. First I examine the proper role for function in a theory of law and then argue for the possibility of (...) a neutral functional theory, addressing issues raised by Leslie Green, Stephen Perry, Michael Moore and John Finnis. (shrink)

It has become increasingly popular to argue that legal positivism is actually a normative theory, and that it cannot be purely descriptive and morally neutral as H.L.A. Hart has suggested. This article purports to disprove this line of thought. It argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law. The article distinguishes between five possible views about the relations between normative claims and legal positivism, arguing that some of them are not (...) at odds with Hart’s thesis about the nature of jurisprudence, while the others are wrong, both as expositions of legal positivism or as critiques of it. Legal positivism does not necessarily purport to justify any aspect of its subject matter, nor is it committed to any particular moral or political evaluations. (shrink)

Uses erotetic logic to model the courtroom objection "Improper Cross!". -/- Readers downloading the article should also please download the erratum et corrigendum, which is locally available.

The essay briefly review the intellectual bonds between Alchourrón and Bulygin and Italian legal thought. Alchourrón and Bulygin’s seminal work is widely read in Italy; and by now is considered essential groundwork by a growing generation of young legal scholars.

Il volume raccoglie gli Atti del 1° convegno italo-spagnolo di teoria analitica del diritto, svoltosi a Imperia nei giorni 27-29 aprile del 1995. Con un approccio analitico alla teoria del diritto, sono stati trattati, tra gli altri, i temi seguenti: efficacia e applicabilità delle norme; identificazione del diritto; lacune; metanorme; fonti del diritto; consuetudine; esistenza di norme e sistemi normativi;norme supreme.

A representation methodology for knowledge allowing multiple interpretations is described. It is based on the following conception of legal knowledge and its open texture. Since indeterminate, legal knowledge must be adapted to fit the circumstances of the cases to which it is applied. Whether a certain adaptation is lawful or not is measured by metaknowledge. But as this too is indeterminate, its adaptation to the case must be measured by metametaknowledge, etc. This hierarchical model of law is quite well-established and (...) may serve well as a basis for a legal knowledge system. To account for the indeterminacy of law such a system should support the construction of different arguments for and against various interpretations of legal sources. However, automatizing this reasoning fully is unsound since it would imply a restriction to arguments defending interpretations anticipated at programming time. Therefore, the system must be interactive and the user''s knowledge be furnished in a principled way. Contrary to the widespread opinion that classical logic is inadequate for representing open-textured knowledge, the framework outlined herein is given a formalization in first order logic. (shrink)

Much work on legal knowledge systems treats legal reasoning as arguments that lead from a description of the law and the facts of a case, to the legal conclusion for the case. The reasoning steps of the inference engine parallel the logical steps by means of which the legal conclusion is derived from the factual and legal premises. In short, the relation between the input and the output of a legal inference engine is a logical one. The truth of the (...) conclusion only depends on the premises, and is independent of the argument that leads to the conclusion.This paper opposes the logical approach, and defends a procedural approach to legal reasoning. Legal conclusions are not true or false independent of the reasoning process that ended in these conclusions. In critical cases this reasoning process consists of an adversarial procedure in which several parties are involved. The course of the argument determines whether the conclusion is true or false. The phenomenon of hard cases is used to demonstrate this essential procedural nature of legal reasoning. (shrink)

Note: The author holds the copyright, and there was no agreement, express or implied, not to use a facsimile PDF. -/- Using erotetic logic, the paper defines the "the whole truth" in a manner consistent with U.S. Supreme Court precedent. It cannot mean "the whole story," as witnesses in an adversary system are permitted /only/ to answer the questions put to them, nor are they permitted to speculate, add irrelevant material, etc. Nor can it mean not to add an admixture (...) of falsity, as that is already included in "nothing but the truth," and, strictly speaking, in "the truth," as any such as admixture renders the whole thing false (given bivalence is presupposed) by &-introduction. (shrink)

...Witherspoon's Course in Political Theory, as Taken by James Madison Dennis F. Thompson Princeton University [523...Witherspoon's Course in Political Theory, as Taken by James Madison. James Madison was an unusually wen-prepared student when, at eighteen...