I propose a new formalist account of legal (/proximate) causation – one that holds legal causation to be a matter of amoral, descriptive fact. The account starts with a metaphysical relation, akin to but distinct from common-sense causation, and it argues that legal causation aligns exactly with that relation; it is unified and principled.

Paolo Sandro’s book is the latest volume in Hart Publishing’s excellent ‘Law and Practical Reason’ series. The book’s theoretical scope is wide, engaging with analytical legal philosophy (of both A...

Starting from a teleological understanding of the rule of law, this article argues that private power is a rule of law concern as much as public power. One way of applying the rule of law to private power would be to limit instances of ‘lawlessness’ and arbitrariness through formal requirements and procedural guarantees. However, we argue that private power is, to a significant extent, constituted by law in the first place – and that its lawful exercise is no less pernicious (...) than its unlawful exercise. Drawing on this constitutive function of law, we propose a normative core of the rule of law grounded on the moral equality of individuals. Attention to individuals’ needs, capabilities, and public autonomy points to requirements of distributive justice and democratic participation as part of the power-conferring function of law. Through a discussion of contestations of fossil fuel policy, the article shows the critical and empowering potential of a reconfigured rule of law. (shrink)

It has become a popular view in jurisprudence that the law exists to guide us. I argue in this article that it is plausible to think that the law does not necessarily exist to guide us. I do this while accepting that the law is necessarily normative. The upshot of the argument is significant. Viewing an attempt to provide guidance as a necessary feature of the law gives rise to a distinctive mode of operating that some think has inherently valuable (...) qualities. We get to say, for example, that the rule of law provides some necessary constraints on how laws should be designed. These valuable aims and constraints become external aims and constraints once guidance is jettisoned from the concept of law. It would not, for example, be true just in virtue of the very nature of law that it should not be secret or oppress people into conformity. (shrink)

The concept of legal pluralism has been used widely in legal scholarship to draw attention to the existence of multiple legal orders. Scholars have relied upon it to avoid the ideology of legal centralism, to counter colonialism, and to highlight the neglect of Indigenous laws. These are ameliorative approaches, which aim to expand the concept of law for particular purposes. But it is not clear that they help to explain what law is and does. In this article, I contrast these (...) normative and critical projects with analytic and descriptive approaches to the concept of law. Descriptive conceptual analysis, using empirical examples to enhance the insights of legal theorists, can better shed light on what is distinctive about law as a social form. The article illustrates this approach with a number of historical and anthropological examples. This leads us, I suggest, to form rather than function, that is, to the quality of legalism. The creation and use of general rules and abstract categories, that is, usefully distinguishes law, as a category that encompasses both state and non-state forms, from the wider class of norms encompassed by the expansive theories of the legal pluralists. (shrink)

According to long-established narratives, legal thinking in Germany, France and the U.S.A. was shaped by formalist legal cultures for the most part of the nineteenth century until the respective legal sciences embraced their social responsibility in the early twentieth century. Recently, legal historians have begun to question these narratives. In separate analyses, they have shown that the critics of ‘Legal Formalism’ exerted a lasting influence on historical research since the early twentieth century, thereby fostering a deeply charged understanding of nineteenth (...) century jurisprudence. What went largely unnoticed, however, was the transnational dimension of this false narrative. Due to the transnational ties of the critics of ‘Legal Formalism’, a powerful misrepresentation of nineteenth century Western legal thought emerged that still influences contemporary global legal history. Dismantling the prejudices surrounding the Western jurisprudence of the nineteenth century causes crucial challenges for conceptualising nineteenth century Western legal thought. (shrink)

I am supposed to give a lecture on campus this morning, but my teething, cranky toddler objects to day-care. I want to be there for my child when he feels unwell. But as I draft the email to cancel...

If the aim of this volume was to ‘produce a few slight concentric waves’1 ‘like a small pebble [thrown] into the pond of legal culture’,2 the goal has been amply achieved. Reviewed, presented, and...

What is property? Not so long ago, at least in the western legal tradition, answering this question might have been possible by adverting to a very small number of resources – perhaps as few as the...

The scholarship and legal products of the Global South, argued Daniel Bonilla Maldonado,1 occupy ‘a low level’. Their constitutions and attendant jurisprudential theories were seen as mere transpla...

The scholarship and legal products of the Global South, argued Daniel Bonilla Maldonado,1 occupy ‘a low level’. Their constitutions and attendant jurisprudential theories were seen as mere transpla...

Volume 13, Issue 4, December 2022, Page 668-688.

The phenomenon of democratic erosion has become a prominent topic in constitutional scholarship over the past years. It is this concern with a deep-seated crisis of democracy that also motivates Ro...

The phenomenon of democratic erosion has become a prominent topic in constitutional scholarship over the past years. It is this concern with a deep-seated crisis of democracy that also motivates Ro...

Rights proclamations are often alleged to be meaningless – ‘nonsense upon stilts’. But what makes a rights proclamation meaningful? In general, I argue, meaningful rights proclamations presuppose the existence of both a duty – directed from some party to another – and an interest whose protection is at least a non-redundant element in the justification of why the duty exists. Further conditions of meaningfulness apply for specifically moral rights proclamations. Here, the interest must be of such moral relevance to ground, (...) by itself, the duty and the duty must be demonstrably compatible with other mandatory components of morality. Neither of these conditions applies to rights proclamations in the legal realm. For a legal right proclamation to be meaningful, it is sufficient that there is or there ought to be, in the legal community at stake, a legal obligation whose justification includes, as a non-redundant element, the interest of some party. (shrink)

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)

Volume 13, Issue 4, December 2022, Page 626-635.

In A Liberal Theory of Property, Dagan combines a realist’s appreciation of the promise and perils of property with an analytical philosopher’s ambition to provide a systematic account of property...

My purpose in this paper is to enquire into whether law can forgive. This line of inquiry must be distinguished from other possible avenues of investigation into the relation between law and forgiv...

My purpose in this paper is to enquire into whether law can forgive. This line of inquiry must be distinguished from other possible avenues of investigation into the relation between law and forgiv...

A correct understanding of Hart’s idea of justice and a detailed assessment of the connection between justice and law contributes to a better understanding of his legal-philosophical project. Always consistent with his argument on the separability between law and morality, Hart endorses an account of formal intralegal justice that is intimately connected to law, but not necessarily dependent upon non-legal principles of substantive justice. Hart’s theoretical commitment to a composite concept of formal justice encompasses two elements: first, the imperative to (...) treat like cases alike and different cases differently, and second, the underlying legal criteria that specify the relevant measure of likeness and difference. These elements of Hart’s theory of justice can be traced back to their doctrinal precedents in the texts of Aristotle, Sidgwick, Perelman, Ross, and Del Vecchio. Commentators and critics of Hart’s account of justice seem to agree that this account ought to be expanded by exploring its full effects on the foundations of Hart’s concept of law. When this is achieved, a third element of Hart’s intralegal justice emerges, namely, its rights-allocating function, which is deeply embedded in his account of the rule of recognition, his concept of a legal system, and his idea of law. (shrink)

Property is a strange and eclectic institution. It is fundamental and reflects seemingly innate intuitions.1 And yet property law is focused on such obtuse concepts as ‘touch and concern’ in the la...

A regime of private property is, by nature, morally controversial. Property in physical, external, finite, non-shareable resources has one irreducible and undeniable consequence: if it is given to...

This paper defends what I call the ‘wellbeing conception of harm’, according to which the relevant criterion for determining whether one has suffered harm is whether they have been made worse off in terms of their wellbeing. Firstly, I explain why it is that one might find the wellbeing conception of harm appealing to begin with. Then, I respond to two sets of concerns that have been levied against the wellbeing conception of harm. The first set of concerns relate to (...) the implausible moral/political consequences that would allegedly follow from adopting the wellbeing conception of harm. The second set of concerns challenge the practical significance of adopting the wellbeing conception of harm. I conclude with some remarks on how the wellbeing conception of harm can help to answer, or at least navigate, some controversial issues related to harm. (shrink)

In this book, Veitch starts with the observation that our social, political, and legal worlds are filled with obligations, yet this has been overshadowed in modernity by a legal prioritisation of r...

In this book, Veitch starts with the observation that our social, political, and legal worlds are filled with obligations, yet this has been overshadowed in modernity by a legal prioritisation of r...

Justifying Injustice is very well-titled. The core aim of the monograph is to provide an account of the way in which German jurists and academics of the Nazi era attempted to justify the regime’s l...

Justifying Injustice is very well-titled. The core aim of the monograph is to provide an account of the way in which German jurists and academics of the Nazi era attempted to justify the regime’s l...

Chiara Cordelli’s The Privatized State1 offers an original perspective on an important, and indeed extremely topical issue, particularly in view of the way in which the role of the state and of its...

What makes public institutions normatively distinctive, if anything? Is there a sense in which the privatisation of the public function corrupts such distinctiveness? If such a sense is there, what...

In the last decades, a broad privatisation movement has swept many nations, leading to formerly public services being outsourced to a variety of private parties. While lawyers, economists and socia...

In the last decades, a broad privatisation movement has swept many nations, leading to formerly public services being outsourced to a variety of private parties. While lawyers, economists and socia...

I wish to thank the contributors to this symposium for the thoughtfulness and care with which they engaged with my book, The Privatized State. I wrote this book with two animating goals in mind. Th...

This paper aims to inquire whether an analysis of the concept of law is an exercise of analysis in its modest or immodest form. Our inquiry suggests that the Jacksonian distinction between modest and immodest conceptual analysis, so eagerly applied by many legal scholars, is inapplicable to analyzing a specific part of the concept of law. The crux of our argument lies in the relation between the folk theory of law and the content of the developed concept of law. As (...) an artifact concept, the concept of law must depend on the pre-existing content of the folk conception of law (which we term the ‘foundational folk theory’). This part of folk theory determines the collective intentionality necessary to bring an institutional artifact, such as law, into existence. A large part of the argument for this conclusion depends on the acceptance of a realist and functional, post-Searlean theory of artifactual types. (shrink)

Crisis can obscure and confuse. The past decade’s tribulations of the European Union and its structures of governance have left theorists grappling to comprehend the precise terms of Europe’s polit...

Crisis can obscure and confuse. The past decade’s tribulations of the European Union and its structures of governance have left theorists grappling to comprehend the precise terms of Europe’s polit...

In discussions of standards of proof, a familiar perspective often emerges. According to what we call specificationism, standards of proof are legal rules that specify the quantum of evidence required to determine that a litigant’s claim has been proven. In so doing, they allocate the risk of error among litigants (and potential litigants), minimizing the risk of certain types of error. Specificationism is meant as a description of the way the rules actually function. We argue, however, that its claims are (...) either mistaken or at a minimum deeply misleading, especially when it comes to standard of proof rules (SPRs) that contain indeterminate formulas, as is typical. As against specificationism, we argue that SPRs are best understood as rules that confer competence to decide whether a given standard has been met—according to whatever vague or inchoate interpretation (if any) of the rule in question triers of fact implicitly or explicitly employ. We call this the competence-norm approach. (shrink)

We explore an underappreciated tension at the heart of the debate over legal positivism. On the one hand, many legal philosophers aspire for the debate to tell us what law is, and the nature of law. But on the other hand, the positions in the debate are generally formulated such that they’re about something else: what law is necessarily connected to or dependent on. This is a genuine tension, because theses about what law is necessarily connected to or dependent on (...) do not by themselves state or automatically settle what law is or the nature of law. This tension prompts us to propose a new approach to formulating positivism and antipositivism as theses about the real definition of law. Our proposal is simple, but fruitful. We argue that it better insulates and unifies the debate: that is, it prevents orthogonal theses from trivially vindicating or falsifying positivism and antipositivism, and it explains how different threads of the existing debate contribute to a single topic. We close by briefly considering two recent arguments about exclusive positivism, to illustrate how our discussion bears on contemporary jurisprudential debates. (shrink)

The question of what makes a ‘law’ distinct from other kinds of rules and social norms – often called the project of ‘conceptual jurisprudence’ – gives rise to a classic debate in modern legal theory. The debate has historically centred on the competing Western views of (i) natural law theory and (ii) legal positivism. Meanwhile, the ancient Chinese school of thought known as ‘Legalism’ (法家) has remained an under-explored branch of Eastern philosophy, despite its many insights into the nature of (...) government and legal systems. This paper argues that Legalism, when interpreted as a system of conceptual jurisprudence, offers a genuine alternative to both of the dominant Western theories. It achieves this by invoking normative reasoning to conceptually distinguish ‘laws’ from other sorts of rules at the most fundamental level of analysis, but also by doing so without any necessary reference to notions of morality. This unique characteristic of Legalism is introduced in this paper as ‘form prudentialism’. (shrink)

Chiara Cordelli’s The Privatized State is a book that should be widely read for many reasons.1 In the first place, it engages with an important set of issues in governance and public administration...

What happens when adjudication signals its own artifice? Or when jurisprudence is animated by what Maksymilian Del Mar calls ‘legal artifacts’ that invite us to suspend certain of our prevailing no...

In his new book Origins of Order: Project and System in the American Legal Imagination, Paul Kahn uses a conceptual array that consists of two concepts: system and project. These two concepts are c...

‘No trace anywhere of life’, Samuel Beckett says, ‘pah, no difficulty there, imagination not dead yet, yes, dead, good, imagination dead imagine’.1 Imagination oscillates in Beckett’s dense text be...

David Brink’s new book, Fair Opportunity and Responsibility delivers an important and erudite contribution to the under theorised notion of ‘fair opportunity’ in our culpability determinations. Bri...

Maks Del Mar’s book, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication, proposes a rich and generative conception of judicial imagination. This essay reflects upon and then deplo...

The dominant theme across the three comments from Elizabeth Anker, Jonathan Crowe, and Ben Golder, is a plea for more engagement with the ethics and politics of adjudication. The commentators argue...

Recent interest in the epistemic condition on moral responsibility has raised a new challenge to the view that persons are directly responsible for negligent conduct. According to an influential ar...

In his essay ‘Ethical Consistency’, Bernard Williams famously introduced the concept of a moral remainder, which points to the phenomenon of an in itself defensible decision that may nonetheless re...

Pierluigi Chiassoni’s wonderful book, Interpretation without Truth,1 is an important and welcome addition to the ongoing conversations about interpretation, legal realism, and legal truth. Chiasson...

Interpretation without Truth is the result of thirty years of research that Pierluigi Chiassoni has devoted to legal interpretation and legal reasoning. More generally, the book represents one of t...

Brian Bix, Damiano Canale, Timothy Endicott, Alessio Sardo, Frederick Schauer, and Giovanni Tuzet did me the honour of reading and critically commenting Interpretation without Truth (in the followi...

To be realistic –to face up to the unvarnished facts– a philosophy of human affairs needs the idea of misinterpretation in its tool kit. Sometimes there is conclusive reason to adopt one interpreta...

In his tightly argued, thought-provoking volume Interpretation without Truth, Pierluigi Chiassoni offers a groundbreaking, reductionist account of judicial fictions.1 Under Chiassoni’s view, judici...

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...