How do laws resemble rules of games, moral rules, personal rules, rules found in religious teachings, school rules, and so on? Are laws rules at all? Are they all made by human beings? And if so how should we go about interpreting them? How are they organized into systems, and what does it mean for these systems to have 'constitutions'? Should everyone want to live under a system of law? Is there a special kind of 'legal justice'? Does it consist (...) simply in applying the law of the system? And how does it relate to the ideal of 'the rule of law'?These and other classic questions in the philosophy of law form the subject-matter of Law as a Leap of Faith. In this book John Gardner collects, revisits, and supplements fifteen years of celebrated writings on general questions about law and legal systems - writings in which he attempts, without loss of philosophical finesse or insight, to cut through some of the technicalities with which the subject has become encrusted in the late twentieth century. Taking his agenda broadly from H.L.A. Hart's The Concept of Law, Gardner shows how the key ideas in that work live on, and how they have been and can still be improved in modest ways to meet important criticisms - in some cases by concession, in some cases by circumvention, and in some cases by restatement. In the process Gardner engages with key ideas of other modern giants of the subject including Kelsen, Holmes, Raz, and Dworkin. Most importantly he presents the main elements of his own unique and refreshingly direct way of thinking about law, brought together in one place for the first time. (shrink)

Law as a leap of faith -- Legal positivism : 5 1/2 myths -- Some types of law -- Can there be a written constitution? -- How law claims, what law claims -- Nearly natural law -- The legality of law -- The supposed formality of the rule of law -- Hart on legality, justice, and morality -- The virtue of justice and the character of law -- Law in general.

First published in 1952, professor Strawson's highly influential Introductionto Logical Theoryprovides a detailed examination of the relationship between the behaviour of words in common language and the behaviour of symbols in a logical ...

Philosophers have long suspected that thought and discourse about what we ought to do differ in some fundamental way from statements about what is. But the difference has proved elusive, in part because the two kinds of statement look alike. Focusing on judgments that express decisions--judgments about what is to be done, all things considered--Allan Gibbard offers a compelling argument for reconsidering, and reconfiguring, the distinctions between normative and descriptive discourse--between questions of "ought" and "is." Gibbard considers how our actions, (...) and our realities, emerge from the thousands of questions and decisions we form for ourselves. The result is a book that investigates the very nature of the questions we ask ourselves when we ask how we should live, and that clarifies the concept of "ought" by understanding the patterns of normative concepts involved in beliefs and decisions. An original and elegant work of metaethics, this book brings a new clarity and rigor to the discussion of these tangled issues, and will significantly alter the long-standing debate over "objectivity" and "factuality" in ethics. Table of Contents: I. Preliminaries 1. Introduction: A Possibility Proof 2. Intuitionism as Template: Emending Moore II. The Thing to Do 3. Planning and Ruling Out: The "Frege-Geach" Problem 4. Judgment, Disagreement, Negation 5. Supervenience and Constitution 6. Character and Import III. Normative Concepts 7. Ordinary Oughts: Meaning and Motivation 8. Normative Kinds: Patterns of Engagement 9. What to Say about the Thing to Do: The Expressivistic Turn and What it Gains Us IV. Knowing What to Do 10. Explaining with Plans 11. Knowing What to Do 12. Ideal Response Concepts 13. Deep Vindication and Practical Confidence 14. Impasse and Dissent References Index This is a remarkable book. It takes up a central and much-discussed problem - the difference between normative thought and "descriptive" thought. It develops a compelling response to that problem with ramifications for much else in philosophy. But perhaps most importantly, it brings new clarity and rigor to the discussion of these tangled issues. It will take some time to come to terms with the details of Gibbard's discussion. It is absolutely clear, however, that the book will reconfigure the debate over objectivity and "factuality" in ethics. --Gideon Rosen, Professor of Philosophy, Princeton University Gibbard,/author> writes elegantly, and the theory he develops is innovative, philosophically sophisticated, and challenging. Gibbard defends his theory vigorously and with admirable intellectual honesty. --David Copp, Professor of Philosophy, Bowling Green State University. (shrink)

Those aspects of language use that are crucial to an understanding of language as a system, and especially to an understanding of meaning, are the acknowledged concern of linguistic pragmatics. Yet until now much of the work in this field has not been easily accessible to the student, and was often written at an intimidating level of technicality. In this textbook, however, Dr Levinson has provided a lucid and integrative analysis of the central topics in pragmatics - deixis, implicature, presupposition, (...) speech acts, and conversational structure. A central concern of the book is the relation between pragmatics and semantics, and Dr Levinson shows clearly how a pragmatic approach can resolve some of the problems semantics have been confronting and simplifying semantic analyses. The complexity of these issues is not disguised, but the exposition is always clear and supported by helpful exemplification. The detailed analyses of selected topics give the student a clear view of the empirical rigour demanded by the study of linguistic pragmatics, but Dr Levinson never loses sight of the rich diversity of the subject. An introduction and conclusion relate pragmatics to other fields in linguistics and other disciplines concerned with language usage - psychology, philosophy, anthropology and literature. Many students in these disciplines, as well as students of linguistics, will find this a valuable textbook. (shrink)

In this paper, I defend H. L. A. Hart against two prevalent criticisms of his views on social rules and the obligations with which these rules are often associated. These criticisms, I argue, rely on misunderstandings ormischaracterizations of what Hart actually intended. These misunderstandings are plausibly explained by a failure on the part of his critics to appreciate fully two of the valuable lessons Hart sought to communicate in his inaugural lecture. First, words like ‘rule’ and ‘obligation’ should not be (...) removed from their various contexts of use and subjected to abstract philosophical definition and analysis. Second, when analyzing assertions in which such words figure in both legal practice and theory, it is crucial to bear in mind the different functions these assertions can be made to serve and the different purposes to which they can be putResumen:En este ensayo el autor defiende a H. L. A. Hart de dos críticas recurrentes a su teoría de las normas sociales y a las obligaciones que regularmente acompañan a estas normas. Ambas críticas, sostiene el autor, descansan sobre malos entendidos o caracterizaciones equivocadas de lo que Hart en realidad se propuso. Estos malentendidos son explicados plausiblemente a través de la falta de capacidad de los críticos de apreciar plenamente dos de las valiosas lecciones que Hart deseaba expresar en su lectura inaugural. En primer lugar, palabras como “norma” y “obligación” no deberían ser sacadas de sus distintos contextos de uso para someterlas a definiciones abstractas y al análisis filosófico. En segundo lugar, cuando se analizan enunciados en los cuales figuran tales palabras, tanto en la teoría como en la práctica del derecho, resulta primordial tener en mente las diversas funciones que esos enunciados puedan tener y los diferentes propósitos para los cuáles esos enunciados fueron proferidos. (shrink)

According to a widely held view, people's commitments to laws are dependent on the existence in their community of a conventional practice of complying with certain fundamental laws. This conventionalism has significantly hampered our attempts to explain the normative practice of law. Ronald Dworkin has argued against conventionalism by bringing up the phenomenon of persistent fundamental legal controversies, but neither Dworkin nor his legal positivist respondents have correctly understood the real significance of such controversies. This article argues that such controversies (...) pose a deep challenge to any conception of our legal practice as a genuinely normative, rule-mediated, practice. The article also argues that what is needed to deflect this challenge is a new understanding – different from the widely held conventionalist understanding – of how people's commitments to laws are predicated on their fellows’ like commitments. (shrink)

Lays out basics of planning theory of law. Roughly, characterizes the internal point of view as a complex planning intention rather than a response to a recurring coordination problem. We are not responding to such a problem per se, but rather to a cooperation problem - and thus the structure of the attitude or intention must be different. It is officials who have the relevant attitude. Does not reject conventionalism, but argues that the convention is of a different sort than (...) is typically thought. Considers the basic commitment of legal positivism to be a commitment law as social fact. (shrink)

By a `denoting phrase' I mean a phrase such as any one of the following: a man, some man, any man, every man, all men, the present King of England, the present King of France, the center of mass of the solar system at the first instant of the twentieth century, the revolution of the earth round the sun, the revolution of the sun round the earth. Thus a phrase is denoting solely in virtue of its form. We may distinguish (...) three cases: (1) A phrase may be denoting, and yet not denote anything; e.g., `the present King of France'. (2) A phrase may denote one definite object; e.g., `the present King of England' denotes a certain man. (3) A phrase may denote ambiguously; e.g. `a man' denotes not many men, but an ambiguous man. The interpretation of such phrases is a matter of considerably difficulty; indeed, it is very hard to frame any theory not susceptible of formal refutation. All the difficulties with which I am acquainted are met, so far as I can discover, by the theory which I am about to explain. (shrink)

By a `denoting phrase' I mean a phrase such as any one of the following: a man, some man, any man, every man, all men, the present King of England, the present King of France, the center of mass of the solar system at the first instant of the twentieth century, the revolution of the earth round the sun, the revolution of the sun round the earth. Thus a phrase is denoting solely in virtue of its form. We may distinguish (...) three cases: (1) A phrase may be denoting, and yet not denote anything; e.g., `the present King of France'. (2) A phrase may denote one definite object; e.g., `the present King of England' denotes a certain man. (3) A phrase may denote ambiguously; e.g. `a man' denotes not many men, but an ambiguous man. The interpretation of such phrases is a matter of considerably difficulty; indeed, it is very hard to frame any theory not susceptible of formal refutation. All the difficulties with which I am acquainted are met, so far as I can discover, by the theory which I am about to explain. (shrink)

This volume consists of the first of the John Dewey Lectures delivered under the auspices of Columbia University's Philosophy Department as well as other essays by the author. Intended to clarify the meaning of the philosophical doctrines propounded by Professor Quine in 'Word and Objects', the essays included herein both support and expand those doctrines.

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)

There are two questions I would like to address in this article. The first and main question is whether there are rules of recognition, along the lines suggested by H.L.A. Hart. The second question concerns the age-old issue of the autonomy of law. One of the main purposes of this article is to show how these two issues are closely related. The concept of a social convention is the thread holding these two points tightly knit in one coil. Basically, I (...) will argue that a novel account of social conventions can be employed to reestablish Hart's thesis about the rules of recognition, and that this same account shows why, and to what extent, law is partly an autonomous practice. (shrink)

In a recent paper, I launch an attack on a fundamental doctrine of legal positivism. I argue that nonnormative facts cannot themselves constitutively determine the content of the law. In a response published in this journal, Ram Neta defends the view that nonnormative social facts are sufficient to determine normative facts, including both moral and legal facts. Neta's paper provides a useful opportunity to address a spelled-out version of this view, which in various forms is widely held in philosophy of (...) law and other areas of philosophy. I begin by addressing Neta's attempts to show that descriptive facts can alone determine moral and legal facts. First, Neta's account of why it is wrong to break promises fails. In addition to other problems, it begs the question by taking for granted that a person's desires or other motivational states necessarily justify the actions that they motivate. Next, I turn to Neta's attempt to provide a counterexample to my view about law. In my original paper, I claim that the nature of the constitutive determination relation in the legal domain is what I call rationaldetermination. Roughly speaking, a full constitutive account of the legal facts must include reasons that explain the relation between the determining facts and the legal facts. The facts on which Neta's putative counterexample depends cannot be reasons of the required sort because they take for granted what they are supposed to explain—the way in which nonnormative social facts contribute to the content of the law. Finally, I address the larger issue of how far my argument applies to other domains. I consider and reject Neta's argument that purports to show that all normative domains have the relevant features of the legal domain. I then sketch a competing picture of some normative domains. (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)

What is a social rule? This paper first notes three important problems for H.L.A. Hart's famous answer in the Concept of Law. An alternative account that avoids the problems is then sketched. It is less individualistic than Hart's and related accounts. This alternative account can explain a phenomenon observed but downplayed by Hart: the parties to a social rule feel that they are in some sense 'bound' to conform to it.

What is a social rule? This paper first notes three important problems for H.L.A. Hart’s famous answer in the Concept of Law. An alternative account that avoids the problems is then sketched. It is less individualistic than Hart’s and related accounts. This alternative account can explain a phenomenon observed but downplayed by Hart: the parties to a social rule feel that they are in some sense ‘bound’ to conform to it.

An original and elegant work of metaethics, this book brings a new clarity and rigor to the discussion of these tangled issues, and will significantly alter the ...

Definite descriptions, I shall argue, have two possible functions. 1] They are used to refer to what a speaker wishes to talk about, but they are also used quite differently. Moreover, a definite description occurring in one and the same sentence may, on different occasions of its use, function in either way. The failure to deal with this duality of function obscures the genuine referring use of definite descriptions. The best known theories of definite descriptions, those of Russell and Strawson, (...) I shall suggest, are both guilty of this. Before discussing this distinction in use, I will mention some features of these theories to which it is especially relevant. (shrink)

First published in 2000. Routledge is an imprint of Taylor & Francis, an informa company.

What is law (and why should we care)? -- Crazy little thing called "law" -- Austin's sanction theory -- Hart and the rule of recognition -- How to do things with plans -- The making of a legal system -- What law is -- Legal reasoning and judicial decision making -- Hard cases -- Theoretical disagreements -- Dworkin and distrust -- The economy of trust -- The interpretation of plans -- The value of legality.

In this paper, I defend H. L. A. Hart against two prevalent criticisms of his views on social rules and the obligations with which these rules are often associated. These criticisms, I argue, rely on misunderstandings ormischaracterizations of what Hart actually intended. These misunderstandings are plausibly explained by a failure on the part of his critics to appreciate fully two of the valuable lessons Hart sought to communicate in his inaugural lecture. First, words like ‘rule’ and ‘obligation’ should not be (...) removed from their various contexts of use and subjected to abstract philosophical definition and analysis. Second, when analyzing assertions in which such words figure in both legal practice and theory, it is crucial to bear in mind the different functions these assertions can be made to serve and the different purposes to which they can be put. -/- . (shrink)

Shapiro has recently argued that Dworkin posed a new objection to legal positivism in Law's Empire, to which positivists, he says, have not adequately responded. Positivists, the objection goes, have no satisfactory account of what Dworkin calls “theoretical disagreement” about law, that is, disagreement about “the grounds of law” or what positivists would call the criteria of legal validity. I agree with Shapiro that the critique is new, and disagree that it has not been met. Positivism can not offer an (...) explanation that preserves the “face value” of theoretical disagreements, because the only intelligible dispute about the criteria of legal validity is an empirical or “head count” dispute, i.e., a dispute about what judges are doing, and how many of them are doing it. Positivism, however, has two other explanations for theoretical disagreement, which “explain away” rather than preserve the “face value” disagreement. According to positivists, either theoretical disagreements are disingenuous, in the sense that the parties, consciously or unconsciously, are really trying to change the law, that is, they are trying to say, as Dworkin puts it, “what it should be” not “what the law is”; or they are simply in error, that is, they honestly think there is a fact of the matter about what the grounds of law are, and thus what the law is, in the context of their disagreement, but they are mistaken, because, in truth, there is no fact of the matter about the grounds of law in this instance precisely because there is no convergent practice of behavior among officials constituting a Rule of Recognition on this point. The “Disingenuity” and “Error Theory” accounts of theoretical disagreement are explored, with attention to the theoretical desiderata at stake in choosing between competing explanatory theories. Particular attention is given to the best explanation for Riggs v. Palmer in light of the actual historical context of the decision and other opinions by the Riggs judges in contemporaneous cases. (shrink)

In this paper, I deploy an argument that I have developed in a number of recent papers in the service of three projects. First, I show that the most influential version of legal positivism – that associated with H.L.A. Hart – fails. The argument’s engine is a requirement that a constitutive account of legal facts must meet. According to this rational-relation requirement, it is not enough for a constitutive account of legal facts to specify non-legal facts that modally determine the (...) legal facts. The constitutive determinants of legal facts must provide reasons for the obtaining of the legal facts (in a sense of “reason” that I develop). I show that the Hartian account is unable to meet this requirement. That officials accept a rule of recognition does not by itself constitute a reason why the standards specified in that rule are part of the law of the community. I argue that it is false that understanding the explanatory significance of officials’ acceptance of a rule is part of our reflective understanding of the nature of law. The second project of the paper is to respond to a family of objections that challenge me to explain why normative facts and descriptive facts together are better placed to provide reasons for legal facts than descriptive facts alone. A unifying theme of the objections is that explanations have to stop somewhere; descriptive facts, it is suggested, are no worse a stopping place than normative facts. Third, the paper spells out a consequence of the rational-relation requirement: if an account of what, at the most basic level, determines legal facts is true in any possible legal system, it is true in all possible legal systems. For example, if a Hartian account of legal facts is true in any possible legal system, it is true in all possible legal systems. I use this all-or-nothing result in my critique of a Hartian account, but the result is of interest in its own right. (shrink)

[Stephen Yablo] The usual charge against Carnap's internal/external distinction is one of 'guilt by association with analytic/synthetic'. But it can be freed of this association, to become the distinction between statements made within make-believe games and those made outside them-or, rather, a special case of it with some claim to be called the metaphorical/literal distinction. Not even Quine considers figurative speech committal, so this turns the tables somewhat. To determine our ontological commitments, we have to ferret out all traces of (...) nonliterality in our assertions; if there is no sensible project of doing that, there is no sensible project of Quinean ontology. /// [Andre Gallois] I discuss Steve Yablo's defence of Carnap's distinction between internal and external questions. In the first section I set out what I take that distinction, as Carnap draws it, to be, and spell out a central motivation Carnap has for invoking it. In the second section I endorse, and augment, Yablo's response to Quine's arguments against Carnap. In the third section I say why Carnap's application of the distinction between internal and external questions runs into trouble. In the fourth section I spell out what I take to be Yablo's version of Carnap. In the last I say why that version is especially vulnerable to the objection raised in the second. (shrink)

[Stephen Yablo] The usual charge against Carnap's internal/external distinction is one of 'guilt by association with analytic/synthetic'. But it can be freed of this association, to become the distinction between statements made within make-believe games and those made outside them-or, rather, a special case of it with some claim to be called the metaphorical/literal distinction. Not even Quine considers figurative speech committal, so this turns the tables somewhat. To determine our ontological commitments, we have to ferret out all traces of (...) nonliterality in our assertions; if there is no sensible project of doing that, there is no sensible project of Quinean ontology. /// [Andre Gallois] I discuss Steve Yablo's defence of Carnap's distinction between internal and external questions. In the first section I set out what I take that distinction, as Carnap draws it, to be, and spell out a central motivation Carnap has for invoking it. In the second section I endorse, and augment, Yablo's response to Quine's arguments against Carnap. In the third section I say why Carnap's application of the distinction between internal and external questions runs into trouble. In the fourth section I spell out what I take to be Yablo's version of Carnap. In the last I say why that version is especially vulnerable to the objection raised in the second. (shrink)