In this reply, I raise some questions about the account of "normativity" given by Joseph Rouse. I discuss the historical form of disputes over normativity in such thinkers as Kelsen and show that the standard issue with these accounts is over the question of whether there is anything added to the normal stream of explanation by the problem of normativity. I suggest that Rouse’s attempt to avoid the issues that arise with substantive explanatory theories of practices of the kind criticized (...) in The Social Theory of Practices leads to a result that is uninformative, and the strategy raises the question of whether there is anything there to explain and thus whether there is any necessity to appeal to the kind of anomalous explanations the normativist offers. Key Words: Kelsen • normativity • Mauss • naturalism • practices. (shrink)

.The author summarizes the essential elements of a general theory he is developing which he calls “The Formal Character of Law.” He explains that law's formal character is a potentially major branch of legal theory that is still relatively unexplored. In his view, it is possible to identify formal attributes in legal rules, other basic legal constructs such as interpretive method, the principles of stare decisis, legal reasons, and legislative and adjudicative processes, and a legal system viewed as a whole. (...) For example, a legal rule has, in varying degrees, such formal attributes as generality, definiteness, and simplicity. Such attributes are formal in the sense that they apply to or accommodate highly variable content and do not prescribe or proscribe content. Of course, legal phenomena have other characteristics besides their formality. The author's main technique for developing his theory is to address a common set of questions to the varied formal attributes of , , and above. Among other things, the answers to these questions further explicate how law is formal, demonstrate that law is not merely a means of serving problem‐specific policy but also serves formal values , treats the relations between form and content—specially how good form begets good content and bad form bad content, explores the design and implementation of appropriate formality—its “anatomy and physiology,” and analyses the “pathology” of legal form including not only the “formalistic” , but also the “sub‐stantivistic,” and shows how the overall theory is important both jurisprudentially and in practical ways. (shrink)

The author explains that there is scope for a general theory about the nature and place of form in the fundamentals of law. Form organizes the institutions, rules and other varieties of law, and the system as a whole. All such constructs have non‐formal elements, too, but form unifies each construct and provides its criteria of identity. Appropriate form makes a system of law possible. It also tends to beget good content in the law. It is indispensable to the basic (...) needs of a legal system, and when such an end is organizational, as with democracy, liberty, and the rule of law, form is end as well as means. (shrink)

The practical failure to understand in conflicts, where participants routinely challenge each other’s attribution of meaning, undermines the key assumption of the Weberian interpretive project: that the subject acts meaningfully. This article revisits Weber’s concept of meaning as an object of understanding for a social scientist. Ascertaining the empirical fact of subjective attribution, as Weber advised, may not be sufficient when it comes to understanding action whose meaning is disputed. The article uses the example of E.P. Thompson’s interpretation of eighteenth-century (...) English food riots to show that the disputed empirical meaning is a product of rational understanding, which Weber would classify as dogmatic meaning. The social scientist fails to understand what the critic claims to: a failure to act meaningfully in cultural terms. Furthermore, because the subject acts meaningfully without fail, we close off the option of explaining conflict as a rational disagreement. (shrink)

The relationship between Legal Realism and Legal Positivism has been a recurrent source of debate. The question has been further complicated by the related difficulty of assessing the internal relationship between the two main original strands of Legal Realism: American and Scandinavian. This paper suggests considering American and Scandinavian Realism as instantiations of forward-looking and backward-looking rule skepticism respectively. This distinction brings into sharp relief not only the fundamentally different relationship between each of these two Realist schools and Legal Positivism (...) but also their equally different potentials as starting points for naturalizing jurisprudence. (shrink)

A full representation of all events in society is not possible. The Weber–Rickert solution to the establishing of transparent concept formation requires both theoretical and practical value relevance, that is, our fashions of today shape our selections from the past which, though, also have to be valid for the period studied. Max Weber’s tools for the selection of relevant information without risking uncontrolled value intrusion are influenced by Rickert’s historical relativism, which, however, is not free from lingering ‘objectivism’, transcendental metaphysics (...) in the form of normatively generally valid values, while Weber only claims general empirical validity for values serving as tools for abstraction in a process of double historicity. Today’s historical conceptualizations are not immune to conjectures and fashions; there is no permanence or resistance to the ‘teeth of time’. Weber manifests the post-Enlightenment predicament of anxiety and necessity of choice, which Rickert tries to escape by an ‘Indian rope-trick’ or Icarian flight. Weber’s solution anticipates Gunnar Myrdal’s explicit value premises anchored in significant social movements; a more radical anti-metaphysics. Weber’s ‘sociology’ grew out of history and its contemporary problems. His way of dealing with the value-incommensurability problem makes him part also of a long trend of secularization. (shrink)