This new edition includes a substantial postscript by the author, in which he responds to thirty years of discussion, criticism and further work in the field to ...

Natural Law and Natural Rights is widely recognised as a seminal contribution to the philosophy of law, and an essential reference point for all students of the subject. This new edition includes a substantial postscript by the author responding to thirty years of comment, criticism, and further work in the field.

This paper is a survey of the supervenience challenge to non-naturalist moral realism. I formulate a version of the challenge, consider the most promising non-naturalist replies to it, and suggest that no fully effective reply has yet been given.

This chapter discusses the prospects for logical, semantic, metaphysical, and epistemic characterisations of the autonomy of ethics.

Recently, some philosophers have suggested that a form of robust realism about ethics, or normativity more generally, does not face a significant explanatory burden in metaphysics. I call this view metaphysically quietist normative realism . This paper argues that while this view can appear to constitute an attractive alternative to more traditional forms of normative realism, it cannot deliver on this promise. I examine Scanlon’s attempt to defend such a quietist realism, and argue that rather than silencing metaphysical questions about (...) normative reasons, his defense at best succeeds only in shifting the focus of metaphysical enquiry. I then set aside the details of Scanlon’s view, and argue on general grounds that that the quietist realist cannot finesse a crucial metanormative task: to explain the contrast between the correct normative system and alternative putatively normative standards. (shrink)

Discussion of the relevance of grounding to substantiveness, theory-choice, and “location problems” in metaphysics.

Kelsen's 'Pure theory of law' was first presented in his fundamental work Hauptprobleme des Staatsrechtlehre (1911) and continued in both editions of Reine Rechtslehre (1934, 1958). Historically, it has a certain relation to John Austin's 'analytical jurisprudence', although Kelsen became acquainted with Austin's work for the first time in 1940. The 'pure theory of law' is a formal-logical analysis of law, considered as a system of norms, based philosophically on the strict distinction between 'is' and 'ought'. It is a normative (...) and positive doctrine, opposed both to positivism, showing the limitations of the positivistic approach, the whole legal order. His positivism is a formal analysis of the legal norm, of its elements and of the architecture of the legal order. Kelsen's concentration on the form of law recognizes the legitimacy of sociological investigations and the study of values in reference both to the contents and the making of law. Equally, his philosophical relativism of values is entirely compatible with his strong stand for democracy and the ideals of western culture. German text. (shrink)

When the logical positivists espoused emotivism as a theory of moral discourse, they assumed that their general theories of meaning could be straightforwardly applied to the subject of metaethics. The philosophical research program of expressivism, emotivism's contemporary heir, has called this assumption into question. In this volume Mark Schroeder argues that the only plausible ways of developing expressivism or similar views require us to re-think what we may have thought that we knew about propositions, truth, and the nature of attitudes (...) like belief and desire. Informed by detailed scrutiny of the structural problems about understanding complex thoughts, he develops a range of alternative expressivist frameworks in detail as illustrations of general lessons, and applies them not just to metaethics, but to epistemic expressions and even to truth itself. Expressing Our Attitudes pulls together over a decade of work by one of the leading figures in contemporary metaethics. Two new and seven previously published papers weave treatments of propositions, truth, and the attitudes together with detailed development of competing alternative expressivist frameworks and discussion of their relative advantages. A substantial new introduction both offers new arguments of its own, and provides a map to reading these essays as a unified argument. Along with its sister volume, Explaining the Reasons We Share, this volume advances the theme that metaethical inquiry is continuous with other areas of philosophy. (shrink)

Schurz draws on modern alethic- deontic predicate logic to address the venerable yet enduring problem of whether what ought to be can be derived from what is. After two extensive introductory chapters supplying the background in philosophy and logic to readers unfamiliar with it, he examines such dimensions as the logical explication of Hume's thesis, the special Hume thesis, weakened versions of it, generalizations, some applications to ethical arguments, problems of identity and existence, whether there are analytic bridge principles, and (...) whether they are scientifically justifiable. The inquiry is expanded from Part II of his 1989 Relevant Deduction in Science and Ethics with a Case Study of the Is-Ought Problem. No index. Annotation copyrighted by Book News, Inc., Portland, OR. (shrink)

It is regrettably common for theorists to attempt to characterize the Humean dictum that one can’t get an ‘ought’ from an ‘is’ just in broadly logical terms. We here address an important new class of such approaches which appeal to model-theoretic machinery. Our complaint about these recent attempts is that they interfere with substantive debates about the nature of the ethical. This problem, developed in detail for Daniel Singer’s and Gillian Russell and Greg Restall’s accounts of Hume’s dictum, is of (...) a general type arising for the use of model-theoretic structures in cashing out substantive philosophical claims: the question of whether an abstract model-theoretic structure successfully interprets something often involves taking a stand on non-trivial issues surrounding the thing. In the particular case of Hume’s dictum, given reasonable conceptual or metaphysical claims about the ethical, Singer’s and Russell and Restall’s accounts treat obviously ethical claims as descriptive and vice versa. Consequently, their model-theoretic characterizations of Hume’s dictum are not metaethically neutral. This encourages skepticism about whether model-theoretic machinery suffices to provide an illuminating distinction between the ethical and the descriptive. (shrink)

What do normative terms like “obligation” mean in legal contexts? On one view, which H.L.A. Hart may have endorsed, “obligation” is ambiguous in moral and legal contexts. On another, which is dominant in jurisprudence, “obligation” has a distinctively moralized meaning in legal contexts. On a third view, which is often endorsed in philosophy of language, “obligation” has a generic meaning in moral and legal con- texts. After making the nature of and disagreements between these views precise, I show how linguistic (...) data militates against both rivals to the generic meaning view, and argue that this has significant implications for jurisprudence. (shrink)

Argument that full grounds modally entail what they ground.

One aspiration of an analytic jurisprudential theory is to provide an account of how legal obligations arise, including the legal obligation of judges to apply only legally valid norms when adjudicating cases. Also, any fully adequate theory should enable a solution to a ‘chicken-egg’ puzzle regarding legal authority: legal authority can exist only in virtue of rules that authorize it, but such rules require a legal authority as their source. Which came first? This article argues that it is difficult to (...) see how a particular type of positivist theory (featuring a fundamental norm that plays certain roles) can solve the puzzle and also account for the aforementioned adjudicative duty. The challenge can be framed in terms of the need to be able to derive a legal ‘ought’ (applying to courts) from only ‘is’-statements expressing social facts, where the requisite derivation cannot rely on what John Searle has called ‘institutional facts’. (shrink)

Can there be grounding without necessitation? Can a fact obtain wholly in virtue of metaphysically more fundamental facts, even though there are possible worlds at which the latter facts obtain but not the former? It is an orthodoxy in recent literature about the nature of grounding, and in first-order philosophical disputes about what grounds what, that the answer is no. I will argue that the correct answer is yes. I present two novel arguments against grounding necessitarianism, and show that grounding (...) contingentism is fully compatible with the various explanatory roles that grounding is widely thought to play. (shrink)

The is-ought gap is Hume’s claim that we can’t get an ‘ought’ from just ‘is’s. Prior (“The Autonomy of Ethics,” 1960) showed that its most straightforward formulation, a staple of introductory philosophy classes, fails. Many authors attempt to resurrect the claim by restricting its domain syntactically or by reformulating it in terms of models of deontic logic. Those attempts prove to be complex, incomplete, or incorrect. I provide a simple reformulation of the is-ought gap that closely fits Hume’s description of (...) it. My formulation of the gap avoids the proposed counterexamples from Prior and offers a natural explanation of why they seem compelling. Moreover, I show that my formulation of the gap is guaranteed by standard theories of the semantics of normative terms, and that provides a more general reason to accept it. (shrink)

Grounding is often glossed as metaphysical causation, yet no current theory of grounding looks remotely like a plausible treatment of causation. I propose to take the analogy between grounding and causation seriously, by providing an account of grounding in the image of causation, on the template of structural equation models for causation.

In response to comments on my book, Being Realistic about Reasons, by Justin Clarke-Doane, David Enoch and Tristram McPherson, and Gideon Rosen, I try to clarify my domain-based view of ontology, my understanding of the epistemology of normative judgments, and my interpretation of the phenomenon of supervenience.

This paper deals with the adequacy of the model-theoretic definition of logical consequence. Logical consequence is commonly described as a necessary relation that can be determined by the form of the sentences involved. In this paper, necessity is assumed to be a metaphysical notion, and formality is viewed as a means to avoid dealing with complex metaphysical questions in logical investigations. Logical terms are an essential part of the form of sentences and thus have a crucial role in determining logical (...) consequence. Gila Sher and Stewart Shapiro each propose a formal criterion for logical terms within a model-theoretic framework, based on the idea of invariance under isomorphism. The two criteria are formally equivalent, and thus we have a common ground for evaluating and comparing Sher and Shapiro philosophical justification of their criteria. It is argued that Shapiro's blended approach, by which models represent possible worlds under interpretations of the language, is preferable to Sher’s formal-structural view, according to which models represent formal structures. The advantages and disadvantages of both views’ reliance on isomorphism are discussed. (shrink)

In this essay, I focus on what appear to be Shapiro’s views about the normativity of law, as well as with his surprising claim that law necessarily has a moral aim. I argue that even if Shapiro offers a more compelling reply to the problem of the normativity of law than Hart offers in The Concept of Law, the moves that he makes appear to be equally available to a defender of Hart’s theory, and so in this respect, the planning (...) theory has no particular advantage over the practice theory. As for the Moral Aim Thesis, it appears to be in tension with Shapiro’s positivism. If he is right that law has a moral aim and law claims moral legitimacy, then he should embrace a richer account of the nature and normativity of law than the one that he has offered. (shrink)

According to many, that the normative supervenes on the non-normative is a truism of normative discourse. This chapter argues that those committed to more specific moral, aesthetic, and epistemic supervenience theses should also hold : As a matter of conceptual necessity, whenever something has a normative property, it has a base property or collection of base properties that metaphysically necessitates the normative one. The main aim in this chapter is to show that none of the available arguments establish, or indeed (...) the relevant epistemic, aesthetic, and moral supervenience theses. is not a conceptual truth. This has considerable dialectical importance. One interesting upshot is that it affords non-reductivists and non-naturalists a novel way of resisting certain prominent supervenience-based objections to their views, including objections that formulate supervenience as a purely metaphysical thesis. (shrink)

Practical Reason and Norms focuses on three problems: In what way are rules normative, and how do they differ from ordinary reasons? What makes normative systems systematic? What distinguishes legal systems, and in what consists their normativity? All three questions are answered by taking reasons as the basic normative concept, and showing the distinctive role reasons have in every case, thus paving the way to a unified account of normativity. Rules are a structure of reasons to perform the required act (...) and an exclusionary reason not to follow some competing reasons. Exclusionary reasons are explained, and used to unlock the secrets of orders, promises, and decisions as well as rules. Games are used to exemplify normative systems. Inevitably, the analysis extends to some aspects of normative discourse, which is truth-apt, but with a diminished assertoric force. (shrink)

In this article, we propose a novel account of general jurisprudence by situating it within the broader project of metanormative inquiry. We begin by showing how general jurisprudence is parallel to another well-known part of that project, namely, metaethics. We then argue that these projects all center on the same task: explaining how a certain part of thought, talk, and reality fits into reality overall. Metalegal inquiry aims to explain how legal thought, talk, and reality fit into reality. General jurisprudence (...) is the part of metalegal inquiry that focuses on universal legal thought, talk, and reality. (shrink)

In “How Facts Make Law” and other recent work, Mark Greenberg argues that legal positivists cannot develop a viable constitutive account of law that meets what he calls the “the rational-relation requirement.” He argues that this gives us reason to reject positivism in favor of antipositivism. In this paper, I argue that Greenberg is wrong: positivists can in fact develop a viable constitutive account of law that meets the rational-relation requirement. I make this argument in two stages. First, I offer (...) an account of the rational-relation requirement. Second, I put forward a viable positivist account of law that I argue meets this requirement. The account that I propose is a version of Scott Shapiro’s Planning Theory of Law. The version of Shapiro’s account that I propose combines (1) the account of concepts and conceptual analysis put forward by David Chalmers and Frank Jackson with (2) the account of the concept LEGAL INSTITUTION (and its conceptual connections to the concept LEGAL NORM) that we get from a certain reading of Shapiro’s Planning Theory. In addition to providing a compelling response to Greenberg’s argument in “How Facts Make Law,” I argue that the explanation for why my response to Greenberg works underscores one of the central problems facing legal antipositivism: namely, its lack of a convincing account of the nature of legal institutions. (shrink)

My first paper on the Is/Ought issue. The young Arthur Prior endorsed the Autonomy of Ethics, in the form of Hume’s No-Ought-From-Is (NOFI) but the later Prior developed a seemingly devastating counter-argument. I defend Prior's earlier logical thesis (albeit in a modified form) against his later self. However it is important to distinguish between three versions of the Autonomy of Ethics: Ontological, Semantic and Ontological. Ontological Autonomy is the thesis that moral judgments, to be true, must answer to a realm (...) of sui generis non-natural PROPERTIES. Semantic autonomy insists on a realm of sui generis non-natural PREDICATES which do not mean the same as any natural counterparts. Logical Autonomy maintains that moral conclusions cannot be derived from non-moral premises.-moral premises with the aid of logic alone. Logical Autonomy does not entail Semantic Autonomy and Semantic Autonomy does not entail Ontological Autonomy. But, given some plausible assumptions Ontological Autonomy entails Semantic Autonomy and given the conservativeness of logic – the idea that in a valid argument you don’t get out what you haven’t put in – Semantic Autonomy entails Logical Autonomy. So if Logical Autonomy is false – as Prior appears to prove – then Semantic and Ontological Autonomy would appear to be false too! I develop a version of Logical Autonomy (or NOFI) and vindicate it against Prior’s counterexamples, which are also counterexamples to the conservativeness of logic as traditionally conceived. The key concept here is an idea derived in part from Quine - that of INFERENCE-RELATIVE VACUITY. I prove that you cannot derive conclusions in which the moral terms appear non-vacuously from premises from which they are absent. But this is because you cannot derive conclusions in which ANY (non-logical) terms appear non-vacuously from premises from which they are absent Thus NOFI or Logical Autonomy comes out as an instance of the conservativeness of logic. This means that the reverse entailment that I have suggested turns out to be a mistake. The falsehood of Logical Autonomy would not entail either the falsehood Semantic Autonomy or the falsehood of Ontological Autonomy, since Semantic Autonomy only entails Logical Autonomy with the aid of the conservativeness of logic of which Logical Autonomy is simply an instance. Thus NOFI or Logical Autonomy is vindicated, but it turns out to be a less world-shattering thesis than some have supposed. It provides no support for either non-cognitivism or non-naturalism. (shrink)

The paper investigates the propriety of applying the form versus matter distinction to arguments and to logic in general. Its main point is that many of the currently pervasive views on form and matter with respect to logic rest on several substantive and even contentious assumptions which are nevertheless uncritically accepted. Indeed, many of the issues raised by the application of this distinction to arguments seem to be related to a questionable combination of different presuppositions and expectations; this holds in (...) particular of the vexed issue of demarcating the class of logical constants. I begin with a characterization of currently widespread views on form and matter in logic, which I refer to as 'logical hylomorphism as we know it'—LHAWKI, for short—and argue that the hylomorphism underlying LHAWKI is mereological. Next, I sketch an overview of the historical developments leading from Aristotelian, non-mereological metaphysical hylomorphism to mereological logical hylomorphism (LHAWKI). I conclude with a reassessment of the prospects for the combination of hylomorphism and logic, arguing in particular that LHAWKI is not the only and certainly not the most suitable version of logical hylomorphism. In particular, this implies that the project of demarcating the class of logical constants as a means to define the scope and nature of logic rests on highly problematic assumptions. (shrink)

Social conventions are those arbitrary rules and norms governing the countless behaviors all of us engage in every day without necessarily thinking about them, from shaking hands when greeting someone to driving on the right side of the road. In this book, Andrei Marmor offers a pathbreaking and comprehensive philosophical analysis of conventions and the roles they play in social life and practical reason, and in doing so challenges the dominant view of social conventions first laid out by David Lewis. (...) Marmor begins by giving a general account of the nature of conventions, explaining the differences between coordinative and constitutive conventions and between deep and surface conventions. He then applies this analysis to explain how conventions work in language, morality, and law. Marmor clearly demonstrates that many important semantic and pragmatic aspects of language assumed by many theorists to be conventional are in fact not, and that the role of conventions in the moral domain is surprisingly complex, playing mostly an auxiliary and supportive role. Importantly, he casts new light on the conventional foundations of law, arguing that the distinction between deep and surface conventions can be used to answer the prevalent objections to legal conventionalism. Social Conventions is a much-needed reappraisal of the nature of the rules that regulate virtually every aspect of human conduct. (shrink)

In Philosophy of Law, Andrei Marmor provides a comprehensive analysis of contemporary debates about the fundamental nature of law—an issue that has been at the heart of legal philosophy for centuries. What the law is seems to be a matter of fact, but this fact has normative significance: it tells people what they ought to do. Marmor argues that the myriad questions raised by the factual and normative features of law actually depend on the possibility of reduction—whether the legal domain (...) can be explained in terms of something else, more foundational in nature. In addition to exploring the major issues in contemporary legal thought, Philosophy of Law provides a critical analysis of the people and ideas that have dominated the field in past centuries. It will be essential reading for anyone curious about the nature of law. (shrink)

Subjectivism about welfare is the view that something is basically good for you if and only if, and to the extent that, you have the right kind of favorable attitude toward it under the right conditions. I make a presumptive case for the falsity of subjectivism by arguing against nearly every extant version of the view. My arguments share a common theme: theories of welfare should be tested for what they imply about newborn infants. Even if a theory is intended (...) to apply only to adults, the fact that it is false of newborns may give us sufficient reason to reject it. (shrink)

The elucidations and regimentations of grounding offered in the literature standardly take it to be a necessary connection. In particular, authors often assert, or at least assume, that if some facts ground another fact, then the obtaining of the former necessitates the latter; and moreover, that grounding is an internal relation, in the sense of being necessitated by the existence of the relata. In this article, I challenge the necessitarian orthodoxy about grounding by offering two prima facie counterexamples. First, some (...) physical facts may ground a certain phenomenal fact without necessitating it; and they may co-exist with the latter without grounding it. Second, some instantiations of categorical properties may ground the instantiation of a dispositional one without necessitating it; and they may co-exist without grounding it. After arguing that these may be genuine counterexamples, I ask whether there are modal constraints on grounding that are not threatened by them. I propose two: that grounding supervenes on what facts there are, and that every grounded fact supervenes on what grounds there are. Finally, I attempt to provide a rigorous formulation of the latter supervenience claim and discuss some technical questions that arise if we allow descending grounding chains of transfinite length. (shrink)

This chapter argues that the best way for a non-naturalist to explain why the normative supervenes on the natural is to claim that, while there are some sui generis normative properties whose essences cannot be fully specified in non-normative terms and do not specify any non-normative sufficient conditions for their instantiation, there are certain hybrid normative properties whose essences specify both naturalistic sufficient conditions for their own instantiation and sufficient conditions for the instantiation of certain sui generis normative properties. This (...) is the only metaphysical explanation for supervenience on offer, the chapter argues, that can both clearly maintain the pre-theoretical commitments of non-naturalism, and provide a metaphysical explanation not just for supervenience, but for all metaphysical necessities involving natural and normative properties. (shrink)

The result model of precedent holds that a legal precedent controls a fortiori cases—those cases, that is, that are at least as strong for the winning side of the precedent as the precedent case itself. This paper defends the result model against some objections by Larry Alexander, drawing on ideas from the field of Artificial Intelligence and Law in order to define an appropriate strength ordering for cases.

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)

Virtually everyone takes the moral supervenience thesis to be a basic conceptual truth about morality. As a result, if a metaethical theory has difficulties respecting or adequately explaining the supervenience relationship it is deemed to be in big trouble. However, the moral supervenience thesis is a not a conceptual truth (though it may be true) and as such it is not a problem if a metaethical theory cannot respect or explain it.

In the first section, I consider what several logicians say informally about the notion of logical consequence. There is significant variation among these accounts, they are sometimes poorly explained, and some of them are clearly at odds with the usual technical definition. In the second section, I first argue that a certain kind of informal account—one that includes elements of necessity, generality, and apriority—is approximately correct. Next I refine this account and consider several important questions about it, including the appropriate (...) characterization of necessity, the criterion for selecting logical constants, and the exact role of apriority. I argue, among other things, that there is no need to recognize a special logical sense of necessity and that the selection of terms to serve as logical constants is ultimately a pragmatic matter. In the third section, I consider whether the informal account I have presented and defended is adequately represented by the usual technical definition. I show that it is, and provably so, for certain limited ways of selecting logical constants. In the general case, however, there seems to be no way to be sure that the technical and informal accounts coincide. (shrink)

I offer a new argument against the legal positivist view that non-normative social facts can themselves determine the content of the law. I argue that the nature of the determination relation in law is rational determination: the contribution of law-determining practices to the content of the law must be based on reasons. That is why it must be possible in principle to explain what makes the law have the content that it does. It follows, I argue, that non-normative facts about (...) statutes, judicial decisions, and other practices cannot themselves determine the content of the law. A full account must appeal to considerations independent of the practices that determine the relevance of the practices to the content of the law. Normative facts are the best candidates. (shrink)