The most influential account of authority – Joseph Raz's service conception – is an account of the role of authority, in that it is an account of its point or function. However, authority does not have a characteristic role to play, and even if it did, the ability to play a role is not, by itself, sufficient to establish authority. The aim of this essay is to shift our focus from roles that authority plays to roles that people play – (...) which we can also call roles of authority – such as chef, teacher, and parent. To justify authority, we need to justify the practices in which roles of authority play a part. (shrink)
Exploring Law's Empire is a collection of essays by leading legal theorists and philosophers who have been invited to develop, defend, or critique Ronald Dworkin's controversial and exciting jurisprudence. The volume explores Dworkin's critique of legal positivism, his theory of law as integrity, and his writings on constitutional jurisprudence. Each essay is a cutting-edge contribution to its field of inquiry, the highlights of which include an introduction by Justice Stephen Breyer of the United States Supreme Court, and a concluding essay (...) by Dworkin himself. This final chapter responds to the preceding essays and lays out Dworkin's own vision for the future of jurisprdence over the coming years. (shrink)
In Legality, Scott Shapiro builds his case for legal positivism on a simple premise: laws are plans. Recognition of that fact leads to legal positivism, Shapiro says, because the content of a plan is fixed by social facts. In this essay, I argue that Shapiro’s case for legal positivism fails. Moreover, I argue that we can learn important lessons about the prospects for positivism by attending to the ways in the argument fails. As I show, the flaws in Shapiro’s argument (...) reveal structural problems with a family of prominent positivist views, including the one defended by Joseph Raz. (shrink)
Ludwig Wittgenstein's work on rules has been put to a variety of uses by legal theorists. One wave of theorists employs Wittgenstein in an effort to show that law is radically indeterminate. They base their arguments on Saul Kripke's influential reading of Wittgenstein's Philosophical Investigations. This essay begins with a consideration of Kripke's view and its implications for law. Like many before, I conclude that Kripke's view is defective, and as such teaches us little about law. But it is important (...) to explore the view in detail nonetheless, because only by doing so can we understand the mistakes of the second wave of theorists who employ Wittgenstein's remarks on rules in jurisprudential argument. The second wave includes Brian Bix and Andrei Marmor, who turn to Wittgenstein's remarks on rules to explain how it is that law can be determinate and also to show that law can often be understood without interpretation. I argue that both Bix and Marmor fail, and more importantly, that Wittgenstein's remarks on rules have little to offer legal theory. Nothing much can be learned about legal rules or legal interpretation by attending to Wittgenstein's remarks, because they were aimed at wholly different phenomena. (shrink)
What is law, and why does it matter? Scott Hershovitz says that law is a moral practice-a tool for adjusting our moral relations. This claim is simple on its face, but it has stark implications for the rule of law. At once erudite and entertaining, Hershovitz's argument engages with the most important legal and political controversies of our time.
From a Michigan professor of law and philosophy, a thought-provoking investigation into life's biggest questions with the help of great philosophers old and new-including his two young children. Like any new parent, Scott Hershovitz closely observed his two young sons, Rex and Hank, from their early days. From the time they could talk, he noticed that they raised philosophical questions and were determined to answer them. Children find the world a puzzling place, so they try to puzzle it out. Often, (...) that leads to profound insight. Sometimes, they recreated ancient arguments. Sometimes, they advanced novel views. Kids are natural philosophers, Hershovitz realized. Indeed, they are some of the best around. With great humor and storytelling, Hershovitz follows an agenda set by Rex and Hank, canvassing pressing questions about rights, revenge, authority, sex, gender, race, knowledge, truth, and other daunting mysteries most grown-ups mostly ignore. Through the lens of his sons' curiosity, Hershovitz takes us on an engaging tour through contemporary and classic philosophy. We all want our children to think deeply about themselves, the world around them, and their place within it. Hershovitz calls on us to support our kids' philosophical adventures. But more than that, he challenges us to join up to them, so that we can become better, more discerning thinkers and recapture some of the wonder kids have at the world. (shrink)