After proposing an alternative definition of what “law” (jurisprudential concept) is, this article demonstrates the impossibility of identifying “the law” (what law-makers announce, relative to a particular jurisdiction) as something that is in a particular way. Rather, the law is a more or less abstract range of options. Drawing upon this conclusion, the article calls for a reassessment of how we view the role of law-makers. We need to remove the mystery that surrounds the law so as to provide for (...) greater transparency. This transparency can be gained by requiring law-makers to declare their inescapable biases where they influence their lawmaking. (shrink)

A frequently discussed question in recent jurisprudential debates concerns the extent to which conversational implicatures can be conveyed reliably in legal language. Roughly, an implicature is a piece of information that a speaker communicates indirectly, that is without making the conveyed information explicit. According to the classical analysis of implicatures, their successful communication depends on a shared expectation of interlocutors to be cooperative in conversation. However, recently some legal theorists have claimed that in legal language implicatures tend to be unreliable (...) because – according to them – communicative cooperation cannot be presumed in legal discourse to the same extent as in ordinary conversations. In this article, I will focus on implicatures in a particular kind of legal discourse, namely judicial opinions, and I will discuss to what extent we should also be sceptical about implicatures in this type of legal discourse. My aim is to suggest that scepticism about the reliability of implicatures in judicial opinions appears implausible once we take evidence into account, i.e. examples of implicatures from judicial opinions. I will argue that the evidence that sceptics provide is not only scarce but inconclusive and present a wealth of implicatures from judicial opinions that are not unreliable. I will conclude that an evidence-based approach casts the sceptical view into doubt and suggest that communicative cooperation is presumed in judicial opinions, as well. (shrink)

This entry surveys issues at the intersection of art and morality. Particular emphasis is placed on whether, and in what way, the moral character of a work of art influences its artistic value. Other topics include the educational function of art and artistic censorship.

¿Cómo justificar la validez jurídica de aquellas normas cuya creación no puede ser evaluada como regular o irregular por apelación a ninguna otra norma jurídica? Entre las respuestas más ilustres a este problema se cuentan la norma fundante kelseniana y la regla de reconocimiento de Hart, pero cada una de esas ideas ha sido objeto de serias críticas. Eugenio Bulygin ha efectuado aportes decisivos en esta discusión: ha advertido que cuando se examina el fundamento último de la validez de las (...) normas jurídicas es preciso discriminar un sentido prescriptivo y uno descriptivo de validez, y que la norma fundante de Kelsen no es sino el producto de una confusión entre ambos; ha resaltado que la regla de reconocimiento debe interpretarse como una regla conceptual que especifica los criterios de identificación de las normas jurídicas, y ha señalado que las normas de competencia no pueden reconstruirse como normas de conducta. Si bien con tales aportes ha sentado las bases para ofrecer una solución, su reconstrucción requiere de ciertas precisiones para poder ser considerada una respuesta enteramente satisfactoria a la pregunta respecto del fundamento último de la validez jurídica. How is it possible to ground the legal validity of those rules whose creation cannot be assessed as regular or irregular by reference to any other legal rule? Kelsen's basic norm and Hart's rule of recognition are among the most famous answers to this question, but both ideas have been seriously challenged. Eugenio Bulygin has made decisive contributions to this discussion. He has shown that in the analysis of the ultimate ground of validity of legal rules, two different senses of validity should be distinguished: a prescriptive and a descriptive sense, and that the Kelsenian basic norm is nothing but the product of confusion between these two different senses. He has also claimed that the rule of recognition has to be understood as a conceptual rule specifying the criteria of identification of legal rules, and those power-conferring rules cannot be interpreted as prescriptive norms of conduct. Although these contributions have provided a basic framework for a possible solution, Bulygin's ideas need a refinement in order to be considered as a satisfactory answer to the question concerning the ultimate ground of legal validity. (shrink)

In this article I propose a new interpretation of David Hume’s position on social contract theory. First, and acknowledging Hume’s critical stance on contractualism, I reject the reasons usually adduced to explain his position: empiricist methodology and utilitarianism. Instead, I argue that to fully understand Hume’s position on contractualism, one must take into account both a psychological methodology and a normative outlook. Second, I highlight Hume’s constructive proposals on the origin and foundation of government and justice, as well as the (...) philosophical approach that he suggested when discussing politics, i.e., mediating between parties. As I argue in this article, these latter aspects of Hume’s political philosophy, often disregarded when examining his reasons against contractualism, are nevertheless essential to understand his views on social contract theory. (shrink)

The aim of the paper is to establish a relation between the cooperative principle formulated by H.P. Grice in pragmatics and the principle of sincere cooperation laid down in the founding Treaties on the European Union and interpretated by the Court of Justice of the European Union, intimately linked to the ethical imperative of cooperation, in a cultural framework shared by the Member States. The key concepts are ratio and value and the case-law analysed is provided by the recent cases (...) of the Romanian magistrates. The principle of cooperation reasserted also as the Cooperation and Verification Mechanism is the main obligation and it implies compliance with agreements and action to obtain certain effects. (shrink)

In this paper, we investigate the ‘ought implies can’ thesis, focusing on explanations and interpretations of OIC, with a view to clarifying its uses and relevance to legal philosophy. We first review various issues concerning the semantics and pragmatics of OIC; then we consider how OIC may be incorporated in Hartian and Kelsenian theories of the law. Along the way we also propose a taxonomy of OIC-related claims.

Courts purport to abandon ordinary meaning only when words in a statute accommodate more than one meaning; to look to surrounding words, legislative history, and then public policy considerations, only if those previous efforts fail. The canon of statutory construction, “a word is known by its associates,” generally means nearest associates, or near as possible. An analogous language philosophy principle counsels increasing search radius only as needed. Dimensional extension advances the sequence to broader domains of information. Such incrementalist restrictions should (...) require consistent justification of each broadening step by the inadequacy of preceding steps. But courts don’t do this, and shouldn’t. This essay references the legal debate between “textualists” and non-textualists and its philosophical parallel between minimalists and pragmatists. It illustrates court departures from the incrementalist model, and concludes that when judges choose broad evidentiary contexts in seeking statutory meaning, they need no more justification than when they choose narrower ones. (shrink)

One issue of contention amongst scholars of the Republic is whether Thrasymachus initially espouses a conventionalist account of justice, according to which just actions are merely those which are lawful; required, or at least allowed, by the laws passed by the ruler of the state. A further question is then whether his initial conceptions of rulers and laws are positivist ones, such that to be a ruler or law of a state is simply determined by the state’s constitution. At 340c (...) Thrasymachus effectively rejects such positivism by placing a condition on being a ruler that one should be exercising the art of ruling and on being a law that it should work to the ruler’s interest. Some have maintained that this works to clarify his initial account and so shows that he was never a positivist about rulers and laws. In this paper I argue against such an understanding of Thrasymachus’ argument and explore the problems which beset the position he is, on my reading, forced into by Socrates’ objection to his opening claim that justice is what is in the interest of the stronger and the argument he first gives to support it. (shrink)

A critical analysis of Kelsen’s theory leads to a broad concept of custom, which covers diverse types of customary norms, where the always required conviction of legal bindingness depends on different types of factual and normative reasons. In it we should include a strict concept of custom or legal usage, derogating custom, custom of general international law, custom that establishes an unwritten constitution, custom that establishes a new written constitution, judicial custom which creates a rule of precedent and custom newly (...) expressed in the judicial application of customary rules. The basic norm could be formulated as a constitutive norm: ‘If the norms created through the first historical constitution are effective, then the first historical constitution are valid.’ It is thus a customary constitutive rule that recognizes the first historical constitution as valid law. Norms which establish sources of law are constitutive rules, they can be customary norms or legislated norms, but if they are legislated, they have their validity recognized by, directly or indirectly, a constitutive customary norm. By using a broad concept of custom as a conventional practice, Hart implies that general recognition of a customary rule, together with the practice that accompanies it, are sufficient conditions of validity. A doctrine of recognition that is arrived at by means of criticism and a rational reconstruction of the doctrines of Kelsen and Hart regains the essential theses of the traditional recognition theory of Bierling and Engisch. (shrink)

This paper applies a very traditional position within Natural Law Theory to Cyberspace. I shall first justify a Natural Law approach to Cyberspace by exploring the difficulties raised by the Internet to traditional principles of jurisprudence and the difficulties this presents for a Positive Law Theory account of legislation of Cyberspace. This will focus on issues relating to geography. I shall then explicate the paradigm of Natural Law accounts, the Treatise on Law, by Thomas Aquinas. From this account will emerge (...) the structure of law and the metaphysics of justice. I shall explore those aspects of Cyberspace which cause geography to be problematic for Positive Law Theory and show how these are essential, unavoidable and beneficial. I will then apply Aquinas’s structure of law and metaphysics of justice to these characteristics. From this will emerge an alternative approach to cyberlaw which has no problem with the nature of Cyberspace as it is but treats it as a positive foundation for new legal developments. (shrink)

Hume’s Law that one cannot derive an “ought” from an “is” has often been deemed to bear a significance that extends far beyond logic. Repeatedly, it has been invoked as posing a serious threat to views about normativity: naturalism in metaethics and positivism in jurisprudence. Yet in recent years, a puzzling asymmetry has emerged: while the view that Hume’s Law threatens naturalism has largely been abandoned (due mostly to Pigden’s work, see e.g. Pigden 1989), the thought that Hume’s Law is (...) a serious challenge to positivism has only grown in prominence. Our main aim is to establish that Hume’s Law is not a threat to positivism or naturalism. First, we connect extensive, but unfortunately siloed, discussions of this issue. Second, we show that Hume’s Law is not a serious threat to naturalism or positivism, for the gap between logic and such theses is very hard to bridge in a way that would make Hume’s Law able to bear this significance. Finally, we emphasize an implication of our discussion: it undermines one of the main “dialectical tributaries” in jurisprudence (Toh 2018). (shrink)

Eugenio Bulygin mantiene la tesis según la cual la objetividad del derecho depende de la objetividad del conocimiento del derecho. Esta tesis depende de la distinción entre las normas y las proposiciones normativas. las proposiciones normativas son las que tienen que expresar ese conocimiento, en cuanto son aptas para ser verdaderas o falsas, a la inversa de las normas. Así, esa objetividad es una función de las condiciones de verdad de esas proposiciones. Como, además, según Bulygin, solo existen hechos en (...) la dimensión empírica, esas condiciones solo pueden referirse a esa clase de circunstancias. Sin embargo, se sostiene en este artículo, la distinción kelseniana entre sentidos subjetivos y objetivos y la idea correlativa de "validez normativa" plantean un problema a esa manera de entender las proposiciones normativas, a la hora de explicar la objetividad del derecho. Eugenio Bulygin supports the thesis according to which the objectivity of law depends on the objectivity of the knowledge of law. This thesis depends on the distinction between norms and normative propositions. Normative propositions are those that must express this knowledge, insofar as they are apt to be true or false, contrary to norms. Thus, this objectivity is a function of the truth conditions of these propositions. Also, as facts only exist in the empirical dimension according to Bulygin, these conditions can only refer to this class of circumstances. However, the Kelsenian distinction between subjective and objective senses and the idea of "normative validity", this article claims, poses a problem for this way of understanding normative propositions when it comes to explaining the objectivity of law. (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 paper responds to material from Scott Soames’s wide ranging book The World Philosophy Made, material which I am actually tempted to overlook. Soames adds a detail to a criticism H.L.A. Hart makes of John Rawls, but I argue that Soames cannot consistently endorse this criticism, given his acceptance of trickle-down economics and his aspiration to cohere with a dominant strand of right-wing American philosophy.