Successful accounts of analogy in law have two burdens to discharge. First, they must reflect the fact that the conclusion of an argument by analogy is a normative claim about how to decide a certain case. Second, they must not fail to accord relevance to the fact that the source case was authoritatively decided in a certain way. We argue in the first half of this paper that the common view of the structure of analogical arguments in law cannot overcome (...) these hurdles. In the second half we develop an original account that aims to succeed where others failed. (shrink)

Our paper has three parts. In Part 1, we discuss John Gardner’s thesis that the non-elliptical ascription of agency to law is a necessary and irreducible part of any adequate explanation of the activities of legal officials. We consider three explananda which might conceivably necessitate this ascription, and conclude that none in fact does so. In Part 2, we discuss two other theses of Gardner’s: that it makes no sense to ascribe to law the claim that there are legal obligations (...) , and that law’s claim is the claim that there are moral obligations . We take issue with Gardner’s arguments for , and suggest that is unwarranted in the absence of an argument that law makes any claims at all. In Part 3, we briefly argue that, insofar as it issues requirements, there are certain claims that law cannot but make. We conclude that if Gardner is right that law’s claims are those of certain of its officials, it is law-making and not law-applying officials who make law’s claim. (shrink)

Can there be a non-reductivist, source-based explanation of the use of normative language in statements describing the law and legal situations? This problem was formulated by Joseph Raz, who also claimed to have solved it. According to his well-known doctrine of ‘detached’ statements, normative legal statements can be informatively made by speakers who merely adopt, without necessarily sharing, the point of view of someone who accepts that legal norms are justified and ought to be followed. In this paper I defend (...) two theses. I argue, first, that the notion of a detached statement cannot be made to work, and that Raz’s problem is thus not thereby solved. But the problem itself, I also suggest, is a false one. (shrink)

: In this paper we examine two challenges to the orthodox understanding of the fallacy of denying the antecedent. One challenge is to say that passages thought to express the fallacy can usually be given an interpretation on which they express valid arguments, entitling us to query whether the fallacy is commonly, if ever, committed at all. We discuss this claim in Section 1. The second challenge comes from those who think that there are legitimate uses of denying the antecedent (...) that have traditionally been overlooked. In Section 2 we propose a general test for claims of this sort, and assess three versions of this view. (shrink)

In his essay “Pre-Conventions: A Fragment of the Background”, Bruno Celano seems to endorse three claims about what he calls ‘pre-conventions’: that such ‘entities’ exist; that they are neither rules nor de facto regularities; and that their ‘character’ is at once factual and normative: that pre-conventions are “literally, ‘normative facts’.” I suggest that and are not particularly striking claims, and that Celano’s case for is unpersuasive.

This short paper addresses a well‐known difficulty in the Pure Theory of Law: the definition of a legal wrong. Kelsen was unable to offer a suitable one, critics say. I agree. But the critics misdiagnosed the problem, and prescribed for it a fruitless solution. The reason for Kelsen’s failure, the critics say, was that he thought the law consists only of sanction‐stipulating norms addressed to officials, and does not comprise duty‐imposing norms addressed to citizens. But the critics are wrong, exegetically (...) as well as substantively. Kelsen did not—and indeed could not—deny that there are such duty‐imposing norms; and it is not the case, in any event, that the admission that there are such norms would enable us to explain the notion of a legal wrong. Kelsen failed to provide an adequate characterization of the notion of a legal wrong, yes, but for a different reason. (shrink)