Normativity of Law

Legal philosophers distinguish between a static and a dynamic interpretation of law. The former assumes that the meaning of the words used in a legal text is set at the moment of its enactment and does not change with time. The latter allows the interpreters to update the meaning and apply a contemporary understanding to the text. The dispute between these competing theories has significant ramifications for social and political life. To take an example, depending on the approach, the term (...) “cruel punishment” used in the US Constitution will be given an 18th century meaning or a contemporary one. -/- The philosophy of language seems to provide greater support to the static approach to legal interpretation. Within this approach the lawmaker is perceived as a speaker and legal texts are interpreted as utterances. As a consequence, interpretation is a quest for the speaker/lawmaker’s intention or the public meaning that prevailed at the time of enactment. Neither the intention nor the public meaning are considered to have changed in time. -/- In this paper I argue that the philosophy of language provides the dynamic approach with an equally robust support as the static one. This support comes from an externalist perspective in semantics, rooted in philosophical pragmatism and supported by Ruth Millikan’s concept of meaning as proper function. Grounding the dynamic approach in a well-founded linguistic philosophy rises to the challenge presented by the originalists’ declaration that “it takes a theory to beat a theory”. (shrink)

W artykule analizowane jest zagadnienie wiarygodności decyzji intuicyjnych w procesie stosowania prawa. Analizy prowadzone są z perspektywy psychologii poznawczej, ze szczególnym uwzględnieniem prac nad intuicją ekspercką. Celem prowadzonych analiz jest odpowiedź na pytanie, czy można mówić o wiarygodnych prawniczych decyzjach intuicyjnych. Zestawione zostają badania amerykańskich realistów prawniczych i psychologów poznawczych w celu ich konfrotancji i ustalenia warunków wpływających na proces podejmowania decyzji i wydawania ocen intuicyjnych. Artykuł kończy się przedstawieniem modelu podejmowania decyzji intuicyjnych w naukach psychologicznych i naukach prawnych. -/- (...) In the paper the issue of credibility of legal intuitive decisions is discussed. Analysis is conducted form a perspective of cognitive psychology, especially with emphasis on works on expertise intuition. The goal of the paper is to answer a question whether can we speak about credible intuitive decision making in legal sciences. We confront research conducted in legal theory and cognitive psychology in order to set conditions relevant for a decision making process. The paper ends with a presentation of a decision making model that can be found both in legal sciences and in cognitive psychology. (shrink)

It is well known that experts’ opinion and testimony take on a decisive weight in judicial fact-finding, raising issues and perplexities that have long been under scholarly scrutiny. In this paper I argue that expert’s opinions have a much wider impact on legal decision-making. In particular, they may generate a problem that I will call ‘the opacity of law’. A legal text, such as a statute or regulation, becomes opaque if a legal authority is not able to grasp its full (...) linguistic content but is nevertheless in a position to use it, thanks to an expert’ opinion, in legal decision-making. When this occurs, not only do experts contribute to fact-finding but also to determining the content of the law. In the paper I analyse the linguistic and cognitive sources of this phenomenon, its characteristics and troublesome consequences, and the different kinds of opacity that may affect legal decision-making. (shrink)

This chapter begins with an empirical analysis of attitudes towards the law, which, in turn, inspires a philosophical re-examination of the moral status of the rule of law. In Section 2, we empirically analyse relevant survey data from the US. Although the survey, and the completion of our study, preceded the recent anti-police brutality protests sparked by the killing of George Floyd, the relevance of our observations extends to this recent development and its likely reverberations. Consistently with prior studies, we (...) find that people’s ascriptions of legitimacy to the legal system are predicted strongly by their perceptions of the procedural justice and lawfulness of police and court officials’ action. Two factors emerge as significant predictors of people’s compliance with the law: (i) their belief that they have a (content-independent, moral) duty to obey the law (which is one element of legitimacy, as defined here); and (ii) their moral assessment of the content of specific legal requirements (‘perceived moral content of laws’). We also observe an interactive relationship between these two factors. At higher levels of perceived moral content of laws, felt duty to obey is a better predictor of compliance. And, similarly, perceived moral content of laws is a better predictor of compliance at higher levels of felt duty to obey. This suggests that the moral content incorporated in specific laws interacts with the normative force people ascribe to legal authorities by virtue of other qualities, specifically here procedural justice and lawfulness. In Section 3, the focus shifts to a philosophical analysis, whereby we identify a parallel (similarly interactive) modality in the way that form and content mutually affect the value of the rule of law. We advocate a distinctive alternative to two rival approaches in jurisprudential discourse, the first of which claims that Lon Fuller’s eight precepts of legality embody moral qualities not contingent on the law’s content, while the second denies any independent moral value in these eight precepts, viewing them as entirely subservient to the law’s substantive goals. In contrast, on the view put forward here, Fuller’s principles possess (inter alia) an expressive moral quality, but their expressive effect does not materialise in isolation from other, contextual factors. In particular, the extent to which it materialises is partly sensitive to the moral quality of the law’s content. (shrink)

A prevailing understanding of realism, chiefly among its critics, casts realists as those who seek a ‘distinctively political normativity’, where this is interpreted as meaning nonmoral in kind. Moralists, on this account, are those who reject this and believe that political normativity remains moral. Critics have then focused much of their attention on demonstrating that the search for a nonmoral political normativity is doomed to fail which, if right, would then seem to fatally undermine the realist endeavour. This paper makes (...) the case that casting the difference between realism and moralism in these terms is a mistake, one which overlooks the substantial body of realist work which is clear that it has no such aspirations to develop a nonmoral political normativity. The hope is that in drawing attention to this mistake a line can be drawn under these unhelpful debates, and we can move on to more fruitful constructive and critical discussions between realists and their critics. (shrink)

Punishment is a topic of increasing importance for citizens and policymakers. Why should we punish criminals? Which theory of punishment is most compelling? Is the death penalty ever justified? These questions and many more are examined in this highly engaging and accessible guide. Punishment (2nd edition) is a critical introduction to the philosophy of punishment, offering a new and refreshing approach that will benefit readers of all backgrounds and interests. The first comprehensive critical guide to examine all leading contemporary theories (...) of punishments, this book explores – among others – retribution, the communicative theory of punishment, restorative justice and the unified theory of punishment. Thom Brooks applies these theories to several case studies in detail, including capital punishment, juvenile offending and domestic violence. Punishment highlights the problems and prospects of different approaches in order to argue for a more pluralistic and compelling perspective that is novel and ground-breaking. This second edition has extensive revisions and updates to all chapters, including an all-new chapter on the unified theory substantively redrafted and new chapters on cyber-crimes and social media as well as corporate crimes. Punishment is essential reading for undergraduate and graduate students in philosophy, criminal justice, criminology, justice studies, law, political science and sociology. "Lucid, fair-minded, and well-informed, Thom Brooks’ Punishment offers a superb introduction to a complex and contentious subject. Many a perplexed student will find illumination in his patient discussion of each of the leading theories. The way Brooks shows their interconnectedness and application in practice – to capital punishment, juvenile offenders, domestic violence, and the like – will interest not only students but scholars as well." ―Stuart P. Green, Distinguished Professor of Law and Nathan L. Jacobs Scholar, Rutgers School of Law "As a topic in moral and political philosophy, punishment has been jolted back to life. In the last quarter century, retribution has returned with a vengeance, both in the theoretical literature and (with a very different emphasis) in public policy. The rise of the victim as a player in the criminal justice system has also fuelled a counter-trend, placing an emphasis on redress. Human rights, privatization, globalization, the rise of the therapist, the lobbyist, the terrorist: all have affected our ways of punishing and of thinking about punishment. A new survey of the terrain is overdue. And who better to conduct it than Thom Brooks, whose grasp of the literature and feel for the issues is second to none? From the noble ideals of ‘communicative’ theory to the grim realities of children in prison: in Punishment Brooks covers it all with insight, rigour, and energy." ―John Gardner, Professor of Jurisprudence, University of Oxford "Thom Brooks has produced a valuable introduction to, and critical survey of, current theoretical approaches to punishment together with an analysis of their implications for practice. In addition, he has provided a spirited defence of a new, unified theory inspired by the British Idealists and encompassing retributive, consequentialist, and restorative elements. Written in a lucid and engaging style, the book will interest a wide range of readers – students, theorists of punishment, as well as those engaged in criminal justice policy." ―Alan Brudner, Albert Abel Professor Emeritus, Faculty of Law, University of Toronto. (shrink)

The concept of human dignity has been criticized as either too thick or too thin. However, according to the non-positivistic standpoint, the legal normativity of human dignity can be justified and thus strengthened by means of its moral correctness. From the individual perspective, Mencius’ understanding of human dignity as an intrinsic value and Kant’s formula of ‘man as an end in itself’ can be adequately understood based on the differentiation of, as well as the connection between, principium diiudicationis and principium (...) executionis, between will and choice, and between homo phaenomenon and homo noumenon (that is, ‘humanity in the personality’). From the social perspective, since the dual dimensions of the individual and the social person are both fictive constructions, even Radbruch, once as a supporter of social law, has not replaced the concept of ‘legal person’ and, in the post-War period, acknowledges individualistic human dignity as the criterion for applying the famous ‘disavowal formula’. On the one hand, human dignity shows at least a weak normative character, which requires, firstly, balancing between the exercise of state powers and the constitutional review under the guidance of the dual dimensions of man and, secondly, optimization of the principle of human dignity in individual cases. On the other hand, through the necessary connection between the concept of dignity and that of personality, human dignity can exhibit a strong normative character, which unavoidably requires a metaphysical justification. (shrink)

Neuroscience can relate to ethics and normative issues via the brain’s cognitive control network. This network accomplishes several executive processes, such as planning, task-switching, monitoring, and inhibiting. These processes allow us to increase the accuracy of our perceptions and our memory recall. They also allow us to plan much farther into the future, and with much more detail than any of our fellow mammals. These abilities also make us fitting subjects for responsibility claims. Their activity, or lack thereof, is at (...) the heart of culpability. For instance, planning to kill someone is strong evidence of what the law calls men rea—a guilty mind. Claims about norms, or ethical “should” claims, express two-level propositions, directed at the behaving person at one level, and at that person’s mind and cognitive control network at another level. Thus, “People should stop themselves from hurting others,” is a claim about how people should behave and also a claim about how their cognitive control networks should behave—i.e., they should inhibit harmful behavior, or the intentions leading up to it. Planning is both an ability of the full person, and of that person’s mind. Neuroscience affirms the common notion, seen both in law and folk psychology, that what makes us guilty or culpable are certain events and states that exist in our minds. Overt behavior, including speech, is fallible evidence of these states and processes. Cases of negligence still involve the executive processes, but “negatively,” in that negligence results when certain types of executive activity fail to take place. (shrink)

: The article explores Dworkin’s suggestion that law and morality comprise a unified normative domain, considering similar suggestions by Greenberg and Hershovitz. It defends an interpretative approach to law, akin to Dworkin’s, against the view that the law’s content is determined by direct appeal to political morality at large, subject only to the effect of action by law-making institutions. Legal practice and political principle are in important ways interdependent, each capable of illuminating and clarifying the other. As an approximation of (...) justice, grounded in practice, the law consists fundamentally in the moral principles that, in the final analysis, constitute the political community. The law’s content is an interpretative question, dependent on a grasp of practice that gives determinate shape to abstract concepts of equality and justice. (shrink)

The chapter explores the ways in which philosophical thinking about public reason and public justification can shed light on some deep issues regarding the legitimacy or purpose of law, as well as shallower yet no less important questions of constitutional engineering and institutional desing.

Domestic and international jurisprudence exist and develop as two ‘pocket universes’ in a sense that they belong to the same fabric of reality, but at the same time many concepts shift their meaning when moved from one pocket to another. This is of a paramount importance for the idea of the rule of law, which in domestic setting was forged in the flame of civil wars and struggles against the rulers. This history and such struggles are something international law has (...) never known, and thus any direct transplantation of the domestic images of the rule of law to international realm are doomed to fail. This entails a need in deconstructing the rule of law. Its core meaning (‘laws must be obeyed’), brings a normative claim relevant to any legal order. The idea of the (international) rule of law appears to be linked to the idea of authority of (international) law. There are differences of the structures of authority in domestic and international law as authority can be mediated or unmediated. Mediation of authority, typical for domestic law, presupposes the existence of officials that are functionally and institutionally differentiated from the subjects of law. Authority of international law is by and large unmediated because of its horizontal nature. Such reconstruction allows to reframe the central concern of the international rule of law enquiries. Instead of trying to fit it to the procrustean bed of domestic theories, international legal scholarship must focus on defining conditions under which international law’s claim to authority is realisable. (shrink)

Argues that reasons internalism, suitably understood, explains categorical reasons for us to cooperate with each other. The norms we then cooperate to satisfy can lie at the heart of legal systems, yielding unexpected implications in the philosophy of law.

This volume contains the proceedings of the Social Ontology, Normativity, and Philosophy of Law conference, which took place on May 30–31, 2019 at the University of Glasgow. At the invitation of the Social Ontology Research Group, a panel of prominent scholars shed light on a range of key topics within social ontology, normativity, and philosophy of law from an interdisciplinary perspective.

This paper explores the possibility that Hobbesian jurisprudence is best understood as a ‘third way’ in legal theory, irreducible to classical natural law or legal positivism. I sketch two potential ‘third theories’ of law -- legal pragmatism and legal dualism -- and argue that, when considered in its broadest sense, Leviathan is best viewed as an example of legal pragmatism. I consider whether this legal pragmatist interpretation can be sustained in the examination of Leviathan’s treatment of civil law, and argue (...) that the pragmatic interpretation can only be successful if we can resolve two textual issues in that chapter. First, while Hobbes argues that law entails the existence of public (sharable) reasons, he does not adequately defend the view that the sovereign is the unique authority over such reasons in all cases, especially as far as they concern known collective emergencies. Second, Hobbes both affirms and denies that a sovereign can fail to do justice, which is paradoxical. Both problems are best resolved by legal pragmatism, though the second problem resists a fully satisfying resolution. The upshot is that, although Leviathan ought to be regarded as an episode of legal pragmatism, there are trade-offs on every reading. (shrink)

In this response to eight commentaries on my article “Kelsen, Hart, and legal normativity” I clarify some points in my original analysis and agree with some comments regarding work that still needs to be done. In particular, I attempt to distinguish my position from both Berkeleyan idealism and mere subjective perception. I agree with the commentators who urge that more must be done to analyze the nature of normativity in general, and legal normativity in particular.

This paper investigates whether different philosophers’ claims about “normativity” are about the same subject or (as recently argued by Derek Parfit) theorists who appear to disagree are really using the term with different meanings, in order to cast disambiguating light on the debates over at least the nature, existence, extension, and analyzability of normativity. While I suggest the term may be multiply ambiguous, I also find reasons for optimism about a common subject-matter for metanormative theory. This is supported partly by (...) sketching a special kind of hybrid view of normative judgment, perspectivism, that occupies a position between cognitivism and noncognitivism, naturalism and nonnaturalism, objectivism and subjectivism, making it more plausible that radically different metanormative theories could be about the same thing. I explore three main fissures: between (i) the “normativity” of language/thought versus that of facts and properties, (ii) abstract versus substantive senses, and (iii) formal versus robust senses. (shrink)

This chapter considers whether legal requirements can constitute reasons for action independently of the merits of the requirement at hand. While jurisprudential opinion on this question is far from uniform, sceptical views are becoming increasingly dominant. Such views typically contend that, while the law can be indicative of pre-existing reasons, or can trigger pre-existing reasons into operation, it cannot constitute new reasons. This chapter offers support to a somewhat less sceptical position, according to which the fact that a legal requirement (...) has been issued can be a reason for action, yet one that is underpinned by bedrock values which law is apt to serve. Notions discussed here include a value-based conception of reasons as facts ; a distinction between complete and incomplete reasons ; and David Enoch’s idea of triggering reason-giving. Following a discussion of criticism against the view adopted here, the chapter concludes by considering some more ‘robust’ conceptions of law’s reason-giving capacity. (shrink)

In his _Natural Law and the Nature of Law_, Jonathan Crowe has written an important and interesting book, one that should be read by people interested in jurisprudence, ethics, and political philosophy. Its distinctive strength is in the way Crowe shows how much can be done within a natural law framework that does not assume a theological background. A distinctive feature of Crowe's approach to natural law, one that distinguishes it from other well-known approaches, is its argument that only a (...) minimal state, if any state at all, is required by or even compatible with natural law. It is this claim that I focus on in this paper. I show that these anti-state arguments do not work, and that a much more robust, largely state-like, type of political society is necessary if the requirements of natural law that Crowe accepts are to be met. In doing this, I also draw some related conclusions about the proper understanding and reach of the common good. In arguing for this conclusion I do not attack Crowe's general approach, but rather make what I hope to be an internal critique of the argument. If I am successful in this, then there will be reason for people who are sympathetic to the overall project to reject some of Crowe’s sub-conclusions, even if they wish to remain working in the natural law tradition overall. And, there will be reason to accept that something like the modern state will be necessary - at least for some time and for people like us - if we are to live good lives. (shrink)

In society, power and responsibility are often linked, supporting the idea that with great power comes great responsibility. I assert that this link between power and responsibility is a form of the Act–Omission Distinction, a principle in ethics that there is a morally relevant distinction between doing something and omitting to do something, e.g. a difference between killing someone and letting someone be killed. As such, using trolleys, elected spider-men, and real-life cases such as R v Stone & Dobinson, I (...) contest this casual relationship between power and responsibility and argue the relationship to be correlative as both power and responsibility are often simultaneously caused by consent.Export citation. (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)

This article focuses on issues relating to legal normativity, emphasizing the way these matters have been elaborated in the works of Kelsen and Hart and later commentators on their theories. First, in Section 2, the author offers a view regarding the nature of law and legal normativity focusing on Kelsen's work (at least one reasonable reading of it). The argument is that the Basic Norm is presupposed when a citizen chooses to read the actions of legal officials in a normative (...) way. In this Kelsenian approach, all normative systems are structurally and logically similar, but each normative system is independent of every other system – thus, law is, in this sense, conceptually separate from morality. Second, in Section 3, the author turns to Hart's theory, analyzing the extent to which his approach views legal normativity as sui generis. This approach raises questions regarding what has become a consensus view in contemporary jurisprudence: that law makes moral claims. The author shows how a more deflationary (and less morally-flavored) understanding of the nature of law is tenable, and may, in fact, work better than current conventional (morality-focused) understandings. (shrink)

Speech and thought about what the law is commonly function in practical ways, to guide or assess behavior. These functions have often been seen as problematic for legal positivism in the tradition of H.L.A. Hart. One recent response is to advance an expressivist analysis of legal statements (Toh), which faces its own, familiar problems. This paper advances a rival, positivist-friendly account of legal statements which we call “quasi-expressivist”, explicitly modeled after Finlay’s metaethical theory of moral statements. This consists in a (...) descriptivist, “rule-relational” semantics combined with a pragmatic account of the expressive and practical functions of legal discourse. We argue that this approach is at least as well-equipped as expressivism to explain the motivational and prescriptive features of “internal” legal statements, as well as a fundamental kind of legal disagreement, while being better positioned to account for various “external” uses of the same language. We develop this theory in a Hartian framework, and in the final part of the paper argue (particularly against Toh’s expressivist interpretation) that Hart’s own views in The Concept of Law are best reconstructed along such quasi-expressivist lines. (shrink)

This book investigates law's interaction with practical reasons. What difference can legal requirements—e.g. traffic rules, tax laws, or work safety regulations—make to normative reasons relevant to our action? Do they give reasons for action that should be weighed among all other reasons? Or can they, instead, exclude and take the place of some other reasons? The book critically examines some of the existing answers and puts forward an alternative understanding of law's interaction with practical reasons. -/- At the outset, two (...) competing positions are pitted against each other: Joseph Raz's view that (legitimate) legal authorities have pre-emptive force, namely that they give reasons for action that exclude some other reasons; and an antithesis, according to which law-making institutions (even those that meet prerequisites of legitimacy) can at most provide us with reasons that compete in weight with opposing reasons for action. These two positions are examined from several perspectives, such as justified disobedience cases, law's conduct-guiding function in contexts of bounded rationality, and the phenomenology associated with authority. -/- It is found that, although each of the above positions offers insight into the conundrum at hand, both suffer from significant flaws. These observations form the basis on which an alternative position is put forward and defended. According to this position, the existence of a reasonably just and well-functioning legal system constitutes a reason that fits neither into a model of ordinary reasons for action nor into a pre-emptive paradigm—it constitutes a reason to adopt an (overridable) disposition that inclines its possessor towards compliance with the system's requirements. (shrink)

Recension de la traduction française de l'ouvrage de F. Schauer, Penser en Juriste, Dalloz, 2018.

This is a short introduction to a book symposium on Paul Gowder's recent book, _The Rule of Law in thee Real World_ (Cambridge University Press, 2016). The book symposium will appear in the St. Luis University Law Journal, 62 St. Louis U. L.J., -- (2018), with commentaries on Gowder's book by colleen Murphy, Robin West, Chad Flanders, and Matthew Lister, along with replies by Paul Gowder.

Discussions of political obligation and political authority have long focused on the idea that the commands of genuine authorities constitute content-independent reasons. Despite its centrality in these debates, the notion of content-independence is unclear and controversial, with some claiming that it is incoherent, useless, or increasingly irrelevant. I clarify content-independence by focusing on how reasons can depend on features of their source or container. I then solve the long-standing puzzle of whether the fact that laws can constitute content-independent reasons is (...) consistent with the fact that some laws must fail to bind due to their egregiously unjust content. Finally I defend my understanding of content-independence against challenges and show why it retains a place of special importance for questions about the law and political obligation. Content-independence highlights that it is some feature of the law or law-making process in general that is supposed to generate moral obligations for citizens, not the merits of particular laws. (shrink)

This essay is an examination of the relationship between phenomenology and analytic method in the philosophy of law. It proceeds by way of a case study, the requirement of compliance in Raz’s theory of mandatory norms. Proceeding in this way provides a degree of specificity that is otherwise neglected in the relevant literature on method. Drawing on insights from the philosophy of art and cognitive neuroscience, it is argued that the requirement of compliance is beset by a range of epistemological (...) difficulties. The implications of these difficulties are then reviewed for method and normativity in practical reason. A topology of normativity emerges nearer the end of the paper, followed by a brief examination of how certain normative categories must satisfy distinct burdens of proof. (shrink)

In this article, I argue that with regard to the President, the Emoluments Clause is not law. I argue for this on the basis of two premises. First, if something is a law, then it has a legal remedy. Second, EC does not have a legal remedy. This premise rests on one or more of the following assumptions: EC does not apply to the President; if EC were to apply to the President, it does not provide a remedy; or, if (...) EC were to apply to the President and have a remedy, it is not law because it is vague. The conclusion that EC does not apply to the President has a practical upshot. As a practical matter, President Trump’s worldwide business tentacles and his refusal to put his business assets into a blind trust does not violate EC and, arguably, does not violate federal conflict-of-interest law. (shrink)

The nature of legislative intent remains a subject of vigorous debate. Its many participants perceive the intent in different ways. In this paper, I identify the reason for such diverse perceptions: three intentions are involved in lawmaking, not one. The three intentions correspond to the three aspects of a speech act: locutionary, illocutionary and perlocutionary. The dominant approach in legal theory holds that legislative intent is a semantic one. A closer examination shows that it is, in fact, an illocutionary one. (...) In the paper, I draw the consequences for legal interpretation of this more theorized model of legislative intent. (shrink)

Methodological and metaphilosophical disputes in the contemporary philosophy of law are very vivid. Basic issues remain controversial. The purpose of the book is to confront approaches of Anglo-Saxon and continental philosophy of law to the following topics: the purpose of legal philosophy, the role of disagreement in legal philosophy, methodology of legal philosophy (conceptual analysis) and normativity of law. We see those areas of legal metaphilosophy as drawing recently more and more attention in the literature. The authors of particular chapters (...) are internationally recognised scholars rooted in various traditions: Anglo-Saxon (Gerald Postema, Dennis Patterson, Kenneth Ehrenberg, Veronica Rodriguez-Blanco); Southern-European (Riccardo Guastini, Manuel Atienza); Nordic (Torben Spaak); German (Ralf Poscher); and Central-European (Jan Wolenski, Tomasz Gizbert-Studnicki, Adam Dyrda). They represent different approaches and different backgrounds. The purpose of the volume is to contribute to the cross-cultural discussions of fundamental issues of philosophy of law. (shrink)

Confrontée à l’exigence de neutralité axiologique, comprise comme le rejet de tout jugement de valeur, la doctrine environnementaliste ne fait pas preuve d’une particulière originalité. Elle porte peu d’intérêt à cette exigence, son discours est inéluctablement affecté par les mêmes biais que ceux qui touchent les autres catégories de doctrine et elle y apporte aussi des réponses comparables. Elle met d’une part en place des processus d’objectivation dont la portée est limitée en raison de l’étroitesse de la communauté scientifique du (...) droit de l’environnement. D’autre part, elle expose peu ses méthodes et sa posture théorique alors même que ces deux éléments seraient de nature à améliorer sa réflexivité. Mais là encore, on ne peut déceler aucune véritable spécificité de la doctrine environnementaliste par rapport aux autres. Elle apparaît donc ni plus ni moins critiquable que les autres au regard de l’exigence de neutralité axiologique. Au-delà, une première phase de la doctrine environnementaliste s’achève probablement, phase qui ressemble d’ailleurs à ce qu’ont connu d’autres catégories de doctrine, entre défense de son objet et recherche de légitimité. Il s’agit désormais d’ouvrir une nouvelle phase que nous souhaiterions à la fois plus théorique et plus méthodique. (shrink)

Scott Shapiro’s theory that law is a social plan is helpful in seeing law essentially as a tool of human creation and as such is sympathetic to understanding law in terms of the social functions it performs, a method I argue for elsewhere. I focus here on two problems with the theory as presented. The planning theory does not adequately explain the persistence of law beyond the utility of those who implement it. Generally, plans can cease to exist as soon (...) as those engaged in them have no more use for them. Laws however, must usually be declared invalid or otherwise nullified for them to have no further effect. Shapiro’s use of self-certification to explain how law is differentiated from other forms of social planning is ad hoc and threatens circularity when he admits it to be a matter of degree. Both of these issues can be better solved by seeing law as an institutionalised abstract artefact, with a greater emphasis upon the nature of institutions doing much of the work done by the idea of planning. (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)

In The Rule of Law in the Real World, Paul Gowder defends a new conception of the rule of law as the coordinated control of power and demonstrates that the rule of law, thus understood, creates and preserves social equality in a state. In a highly engaging, interdisciplinary text that moves seamlessly from theory to reality, using examples ranging from Ancient Greece through the present, Gowder sheds light on how societies have achieved the rule of law, how they have sustained (...) it in the face of political upheaval, and how it may be measured and developed in the future. The Rule of Law in the Real World is an essential work for scholars, students, policymakers, and anyone else who believes the rule of law is critical to the proper functioning of society. (shrink)

In this book, it is shown that moral integrity is necessary for psychological integrity and, therefore, that it is not possible to live well without living ethically. In the process of establishing this profound truth, Dr. Kuczynski explains what right and wrong are and how we know the difference between the two.

A commitment to the rule of law is a commitment to the governance of a society through the use of general or generalisable rules which are binding on both the subjects and the rulers. By giving due notice of the rules and of any changes to them, those who are subject to the law are protected from violence and enabled to act as agents. This is the essential contribution the rule of law makes to important human goods including freedom. Such (...) an understanding of the rule of law illuminates why the law-like character of God and the revelation of God’s law make human free will meaningful and a relationship of love between God and human beings possible. A commitment to the rule of law also means that those exercising power have to offer justifications to explain why the rules are binding, which opens up space for debate about whether the rules are just. (shrink)

Introduction to the Law and Coercion Symposium.

A dominant belief in political philosophy is that states must be entitled to authorize the use of coercion in order to justifiably coerce its subjects. Call this view the entitlement view. On this view, for a state to justifiably coerce its subjects, a necessary condition is that it is entitled to authorize the use of coercion. Sceptics hold the entitlement view. However, they deny that states are entitled to authorize the use of coercion. This denial informs their views regarding the (...) permissible use of political power. Skeptics believe that nearly all uses of political power is impermissible. In this paper, I present a challenge to the skeptical view that nearly all uses of political power is impermissible. I also present a view on the justification of certain uses of political power that is an alternate to the entitlement view. My alternate view allows me to demonstrate that a state can engage in permissible uses of political power over a broad range of domains without possessing any entitlements. (shrink)

Ronald Dworkin once identified the basic question of jurisprudence as: ‘What, in general, is a good reason for a decision by a court of law?’ I argue that, over the course of his career, Dworkin gave an essentially sound answer to this question. In fact, he gave a correct answer to a broader question: ‘What is a good reason for a legal decision, generally?’ For judges, officials of executive and administrative agencies, lawyers, non-governmental organizations, and ordinary subjects acting in the (...) variety of legal contexts, Dworkin identified the proper basis for a legal decision, and its implications for the form of well-conducted legal reasoning. Dworkin's stance on the above questions can be characterised by two theses. I defend his view by substantiating each. The result is agnostic about the viability of other aspects of Dworkin's legal theory, as it focuses on the grounds of proper legal decision-making. Whatever the fate of his other philosophical views, Dworkin's jurisprudence includes a clear-heade... (shrink)

In an age of constitutional revolutions and reforms, theory and practice are moving in opposite directions. As a matter of constitutional practice, human dignity has emerged in jurisdictions around the world as the organizing idea of a groundbreaking paradigm. By reconfiguring constitutional norms, institutional structures and legal doctrines, this paradigm transforms human dignity from a mere moral claim into a legal norm that persons have standing to vindicate. As a matter of constitutional theory, however, human dignity remains an enigmatic idea. (...) Some explicate its meaning in abstraction from constitutional practice, while others confine themselves to less exalted ideas. The result is a chasm that separates constitutional practice from a theory capable of justifying its innovations and guiding its operation. By expounding the connection between human dignity and the constitutional practices that justify themselves in its light, Jacob Weinrib brings the theory and practice of constitutional law back together. (shrink)

I argue that law is best understood as an institutionalized abstract artifact. Using the ideas of John Searle on institutions and Amie Thomasson on artifacts, I show how the law is capable of generating new reasons for action, arguing against recent work by David Enoch who holds that legal reason-giving is ultimately a form of triggering conditional reasons.

Several European and North American states encourage or even require, via good Samaritan and duty to rescue laws, that persons assist others in distress. This paper offers a utilitarian and contractualist defense of this view as applied to corporations. It is argued that just as we should sometimes frown on bad Samaritans who fail to aid persons in distress, we should also frown on bad corporate Samaritans who neglect to use their considerable multinational power to undertake disaster relief or to (...) confront widespread social ills such as those currently befalling public health (obesity) and the environment (climate change). As such, the corporate duty to assist approach provides a novel justification for sustainable business practices in such cases. The paper concludes by arguing that traditional stakeholder approaches have not articulated this duty of assistance obligation, though a new utilitarian stakeholder theory by Thomas Jones and Will Felps may be coextensive. (shrink)