A noticeable shift in focus has occurred in public discourse from What is our best course of action? to What are the true facts of the situation? At the center of these debates are questions on the proper use of evidence, Legal scholar Schauer offers clarity based on how legal systems grapple with these questions-and by drawing insights from psychology, philosophy, economics, history, and decision theory.

Rules are a central component of such diverse enterprises as law, morality, language, games, religion, etiquette, and family governance, but there is often confusion about what a rule is, and what rules do. Offering a comprehensive philosophical analysis of these questions, this book challenges much of the existing legal, jurisprudential, and philosophical literature, by seeing a significant role for rules, an equally significant role for their stricter operation, and making the case for rules as devices for the allocation of power (...) among decision-makers. (shrink)

David A. J. Richards, Sex, Drugs, Death and the Law: An Essay on Human Rights and Overcriminalization Totowa, N.J.: Rowman and Littlefield, 1982, xii + 316 pp.

Legal decisions and theories are frequently condemned as formalistic, yet little discussion has occurred regarding exactly what the term "'formalism" means. In this Article, Professor Schauer examines divergent uses of the term to elucidate its descriptive content. Conceptions offormalism, he argues, involve the notion that rules constrict the choice of the decisionmaker. Our aversion to formalism stems from denial that the language of rules either can or should constrict choice in this way. Yet Professor Schauer argues that this (...) aversion to formalism should be rethought: At times language both can and should restrict decisionmakers. Consequently, the term "'formalistic" should not be used as a blanket condemnation of a decisionmaking process; instead the debate regarding decision according to rules should be confronted on its own terms. (shrink)

In modern jurisprudence it is taken as axiomatic that John Austin's sanction-based account of law and legal obligation was demolished in H.L.A. Hart's The Concept of Law, but Hart's victory and the deficiencies of the Austinian account may not be so clear. Not only does the alleged linguistic distinction between being obliged and having an obligation fail to provide as much support for the idea of a sanction-independent legal obligation as is commonly thought, but the soundness of Hart's claims, as (...) well as the claims of many legal theorists who have followed him, depend on a contested view of the nature of legal theory. If the task of a theory of law, as Joseph Raz and others have influentially argued, is to identify the essential features of the concept of law, then the theoretical possibility, if not the empirical reality, of a sanction-free legal system is what is most important. But if the task of a theory of law is to provide philosophical and theoretical illumination of law as it exists and as it is experienced, then a theory of law that fails to give a central place to law's coercive reality may for that reason be deficient as a theory of law. The question of the soundness of the Austinian account, therefore, may be a function of the answer to the question of what a theory of law is designed to accomplish. (shrink)

Philosophical debates over statistical evidence have long been framed and dominated by L. Jonathan Cohen's Paradox of the Gatecrasher and a related hypothetical example commonly called Prison Yard. These examples, however, raise an issue not discussed in the large and growing literature on statistical evidence – the question of what statistical evidence is supposed to be evidence of. In actual practice, the legal system does not start with a defendant and then attempt to determine if that defendant has committed some (...) unspecified or under-specified act, as these examples appear to suppose. Rather, both criminal and civil litigation start with a sufficiently specified act and then attempt to determine if the defendant has committed it. And when we start with a more fully specified act, the statistics look very different, and these prominent examples no longer present the paradox they are claimed to support. Examining the issue of specification, however, does more than simply undercut the prominent examples in a long and extensive literature. The examination also raises normative issues challenging the legal system's traditional reluctance to base liability on the conjunction of probabilities. (shrink)

What is it for something to have a nature? And what is it for law to have a nature? Analysis of the concept of law has often been taken to be a search for the essential features of law, but it is not clear that the nature of a phenomenon or artifact is better explained by its essential features than by its common ones. And it is not clear that necessary truths have more explanatory value than typical truths. Especially -- (...) but not necessarily - if we recognize the possibility that law is a cluster concept, the value of explaining the widespread but not strictly necessary features of law in explaining law itself becomes more apparent. The jurisprudential project of differentiating law from other social phenomena is an important one, but the distinction may be a fuzzy one and not susceptible either to sharp demarcation or to specification of essential features of law that will assist in differentiation. But if we inquire into what typically or usually or almost always characterizes law rather than what necessarily characterizes it, we may make genuine progress in distinguishing law from the social phenomena to which it is adjacent but with which it is not congruent. (shrink)

Pierluigi Chiassoni’s Interpretation without Truth1 is a profoundly important book. And the book is important not only because of its deep, thorough, and impeccably fair analysis of numerous perspe...

The essays in this volume are all concerned with the arguments about law as a system of rule-based decision-making,particularly the ideas advanced by legal philosopher Frederick Schauer. Schauer's work has not only helped revive interest in legal formalism but has also helped relocate arguments about the relationship between posited rules and morality. The contributors to this volume, themselves distinguished theorists, have concentrated on three aspects of Schauer's work: the nature of jurisprudential description; his theory of presumptive positivism; (...) and the application of his theory of rule-based decision-making to other areas of legal and moral thought. Contributors: Larry Alexander, Brian Bix, Philip Bobbitt, Marianne Constable, Michael C. Dorf, Jeremy Elkins, Claire Oakes Finkelstein, Leo Katz, Jason Johnston, Dennis Patterson. (shrink)

For an academic, there is no greater reward than having one's scholarship taken seriously. The five distinguished scholars who have contributed to this symposium on The Force of Law have done just that, with varying degrees of agreement and disagreement, praise and criticism. But even critical commentary, and perhaps especially critical commentary, is evidence of serious engagement. More importantly, the commentaries contained here have advanced our understanding of law in valuable ways. I respond to each in this reply, but with (...) full acknowledgment that my responses cannot do justice to the full breadth of their contributions and challenges. My hope is not that I will persuade readers that I am correct and my critics mistaken, but rather that the reader who absorbs both the challenges and my response will come away with a greater understanding of the issues that The Force of Law seeks to place on the agenda of contemporary jurisprudence. (shrink)

Using the right to die and the United States Supreme Court case of Cruzan v. Director, Missouri Department of Health as exemplars, this article explores the notion of third-order decisionmaking. If first order decisionmaking is about what should happen, and second-order decisionmaking is about who should decide what should happen, then third-order decisionmaking is about who should decide who decides. This turns out to be an apt characterization of constitutionalism, which is centrally concerned with the allocation of responsibility for making (...) decisions about the allocation of responsibility. Deference to erroneous second-order decisions, as in the Cruzan case itself, may merely be an example of this central feature of constitutionalism. Keywords: constitutionalism, Cruzan case, right-to-die, rules CiteULike Connotea Del.icio.us What's this? (shrink)

Psychologists have recently begun to study the psychological dimensions of judging, but to date almost all of the research has been on lay experimental subjects. Implicit in the research, therefore, is that the judge's attributes as a human bring are more important than the judge's attribute's as lawyer and/or as judge in explaining judicial behavior. This may possibly be true, and it is relatively consistent with a Legal Realist understanding of judges and judging, but there remains a need for research (...) directed specifically to the question whether judges by virtue of legal training, self-selection to judging, or judicial experience think and reason and make decisions differently from lay people. More specifically, when judges engage in tasks typically reserved to judges - finding and interpreting the relevant law, most prominently - are their cognitive processes different from those of lay people engaged in analogous tasks, and from those of lay people engaged in different and more fact-focused tasks? Until we can answer these questions based on systematic research, we will not know whether there is a psychology of judging at all, as opposed simply to general psychology applied to some of the tasks in which judges, like all other decision makers, engage. (shrink)

A rash of very public scandals, of which the behavior of President Clinton and the activities of the late Princess Diana are merely the most famous examples, has raised the question of the appropriateness of the disclosure, or the newsworthiness, of the so-called “private” lives of so-called “public” figures or “public” officials. That is the question I address in this essay.

Ever since Jeremy Bentham wrote his scathing critique of the law of evidence, both philosophers and legal scholars have criticized the exclusionary rules of evidence, arguing that formal rules excluding entire classes of evidence for alleged unreliability violate basic epistemological maxims mandating that all relevant evidence be considered. Although particular pieces of evidence might be excluded as unreliable, they argue, it is a mistake to make such judgments for entire categories, as opposed to making them only in the context of (...) particular pieces of evidence offered for specific purposes. This paper challenges these claims, arguing that rule-based exclusions serve similar purposes to those served by rules in rule-consequentialist moral theories, and that, even more importantly, they are entirely consistent with the exclusionary nature of legal rules in general. Indeed, once we see the role that exclusionary rules might serve in legal epistemology, we can see that they might have a role to play in epistemic appraisal more generally. (shrink)

In the Principles of the Penal Code, Jeremy Bentham described offences that he labelled presumed or evidentiary. The conduct penalized under such offences is punished not because it is intrinsically wrong, but because it probabilistically indicates the presence of an intrinsic wrong. Bentham was sceptical of the need to create offences, but grudgingly accepted their value in light of deficiencies in procedure and the judiciary. These days the scepticism is even greater, with courts and commentators in the United States, Canada, (...) the United Kingdom and elsewhere believing that such offences deny a defendant the right to establish that he did not engage in the conduct that the presumed offence probabilistically but not necessarily indicates. On closer analysis, however, such scepticism appears unjustified. Almost all offences, and indeed almost all legal rules, are premised on a probabilistic relationship between the behaviour the rule encompasses and the behaviour that is the rule-maker's real concern. Presumed offences may make this relationship especially obvious, but it is a relationship that exists whenever the law operates by the use of rules. (shrink)

Brian Leiter’s Why Tolerate Religion? valuably clarifies the issues involved in granting religion-specific accommodations to laws and policies of general application. His arguments are careful, rigorous, and fair, and in rejecting the deontological arguments for religion-specific accommodations he seems to me largely correct. But when he turns to arguing against the utilitarian case for such accommodations, he employs a seemingly non-standard sense of utilitarianism in which demands of principled consistency constrain what would otherwise be utilitarian welfare-maximization. A more traditional and (...) stronger version of utilitarianism, however, has room for seemingly unprincipled or even irrational distinctions as long as employing those distinctions is utility- or welfare-maximizing. And thus although Leiter’s arguments against the deontological justifications for religion-specific accommodations are largely successful, his arguments against utilitarian justifications, by relying more heavily on the notion of “principle” than a utilitarian should accept, are open to challenge. (shrink)

In Simple Rules for a Complex World, Richard Epstein claims to be focusing on legal simplicity, and on the link between legal simplicity and a legal system less intrusive on individual liberty. It turns out, however, that Epstein's conception of simplicity is itself soaked with the substantive idea of individual liberty. The consequences of this are that the claim that legal simplicity brings individual liberty becomes true by definition, and that Epstein avoids taking on the important and interesting questions of (...) whether and when legal simplicity, more conventionally understood, produces less legal instrusiveness and thus, under Epstein's own conception, more liberty. (shrink)

Looked at from the perspective of an American constitutionalist, individualrights is a familiar phrase. In its reference to the idea that individuals have rights against the government and against the majority, 1 the phrase has a meaning that is now relatively well understood. In a different sense, however, the phrase might be taken to suggest that there is something necessarily or essentially individual, and thus particular, about the very idea of a right. Harking back to the Legal Realist positions that, (...) first, a right is nothing more than a statement that a particular individual has an enforceable claim against another particular individual (or entity), 2 and, second, that a right is simply the ex post statement of the outcome of a particular lawsuit, 3 the idea has spread that rights are particular, individual, and contextual. Indeed, a recent article entitled RightsAgainstRules:TheMoralStructureofAmericanConstitutionalLaw< 4 announced in its title a conception of rights suggesting that rights are in their nature particular, and are thus to be contrasted with, and counterpoised against, necessarily general rules. (shrink)

Freedom of thought is often explicitly protected in constitutions and human rights documents, and even more often employed as a rallying cry against state tyranny. It is not so clear, however, just what freedom of thought is, what it would be to threaten it, and how, if at all, it differs from basic liberty or freedom. This essay seeks to analyze the idea of freedom of thought, to pose some skeptical questions about its alleged independent existence, and to ask, again (...) with a skeptical mindset, what it is to protect it and why its protection should be so commonly valued. (shrink)

Robert Alexy has for many years been a prominent analyst of the role of principles in legal argumentation, and an equally prominent defender of the rationality of balancing and proportionality modes of legal decision-making. But although Alexy's defense of proportionality and balancing against charges by Jürgen Habermas and Justice Antonin Scalia that balancing is essentially an irrational process is sound, Alexy in the process is too quick to collapse the important differences between the process of balancing competing principles and the (...) process of interpreting a canonical written text. Although both can be and are frequently rational, rationality is not the same as external constraint, and the ability of canonical texts to provide a degree of external constraint on legal decision-making that cannot be provided by open-ended principles is a difference that should not be lost in the well-aimed efforts to demonstrate that both can be rational and both have important places in legal argumentation and decision-making. (shrink)

Many contemporary philosophers of law believe that one of the central problems of the field is that of explaining the normativity of law. But it is not clear that this is a problem at all, or at least that it is different from the problems that have been exhaustively addressed and analyzed for generations. Once we deconstruct the alleged problem of normativity into its component parts, we can appreciate that legal normativity is either conditional, or is instead but a small (...) variation on age-old questions about the moral obligation, if any, to obey the law simply because of its status as law. There are interesting modern versions of these positions, but in the final analysis David Enoch is correct in labeling the problem of legal normativity as a “pseudo-problem.”. (shrink)

Research on social learning has identified mechanisms that learners use to decide from whom to learn. Several of these mechanisms indicate that learners prefer to learn from more competent people over less competent people. This requires learners to measure the competence of other people. We use this article to analyze the incentives that this measure of competence creates. Learners measure the competence of models, people they would consider learning from, and share these judgments with other learners. This gives each model (...) a reputation for competence within a community. Each model has a biological incentive to increase the magnitude of that reputation; at the very least, increasing the magnitude should make the model more attractive to potential mates. In this article, we present logic that indicates that one way for the model to increase the magnitude of that reputation is for the model to help people who think the model is competent. This reveals a novel evolutionary incentive for humans to help other humans. (shrink)

This book explores the interrelation of facts and norms. How does law originate in the first place? What lies at the roots of this phenomenon? How is it preserved? And how does it come to an end? Questions like these led Georg Jellinek to speak of the “normative force of the factual” in the early 20th century, emphasizing the human tendency to infer rules from recurring events, and to perceive a certain practice not only as a fact but as a (...) norm; a norm which not only allows us to distinguish regularity from irregularity, but at the same time, to treat deviances as transgressions. Today, Jellinek’s concept still provides astonishing insights on the dichotomy of “is” and “ought to be”, the emergence of the normative, the efficacy and the defeasibility of norms, and the distinct character of what legal theorists refer to as “normativity”. It leads us back to early legal history, it connects anthropology and legal theory, and it demonstrates the interdependence of law and the social sciences. In short: it invites us to fundamentally reassess the interrelation of facts and norms from various perspectives. The contributing authors to this volume have accepted that invitation. (shrink)

The understanding of locomotion in neurological disorders requires technologies for quantitative gait analysis. Numerous modalities are available today to objectively capture spatiotemporal gait and postural control features. Nevertheless, many obstacles prevent the application of these technologies to their full potential in neurological research and especially clinical practice. These include the required expert knowledge, time for data collection, and missing standards for data analysis and reporting. Here, we provide a technological review of wearable and vision-based portable motion analysis tools that emerged (...) in the last decade with recent applications in neurological disorders such as Parkinson's disease and Multiple Sclerosis. The goal is to enable the reader to understand the available technologies with their individual strengths and limitations in order to make an informed decision for own investigations and clinical applications. We foresee that ongoing developments toward user-friendly automated devices will allow for closed-loop applications, long-term monitoring, and telemedical consulting in real-life environments. (shrink)

Recent critics of the Roberts Court chide it for its lack of regard for precedent. Fred Schauer faults these critics for erroneously assuming that a rule of stare decisis formerly played a significant role in the Supreme Court's decision-making. In fact, it has long played only a rare and weak role in the Court's work. Nonetheless, according to Schauer, the critics are to be thanked for invigorating a needed debate about the importance of "stability, consistency, settlement, reliance, notice, (...) and predictability" in the Court's decisions. This article argues that Schauer exaggerates the weakness of stare decisis in the Court's practices; and that his call for a public debate on the merits of the norm of stare decisis can only weaken it. (shrink)

In Simple Rules for a Complex World, I outlined a set of legal rules that facilitate just and efficient social interactions among individuals. Frederick Schauer's critique of my book ignores the specific implications of my system in favor of a general critique of simplicity that overlooks the dangers to liberty when complex rules confer vast discretion on public figures. He also does not refer to the nonlibertarian features of my system that allow for overcoming holdout positions. These “take and (...) pay” rules explain how a system broadly protective of private property responds to well‐known two‐person (Able‐Infirm) hypothetical of the sort advanced by G. A. Cohen, which are designed to show how claims of self‐ownership lend strong support to egalitarian outcomes. (shrink)

derick Schauer, Profiles, Probabilities, and Stereotypes Cambridge, MA: Belknap/Harvard University Press, 2003. xiii + 359 pp.

The paper describes at length and then discusses critically Frederick Schauer's analysis of rules in his recent book Playing By the RuZes. For most of the book Schauer discusses rules in general, and only at the end talks about legal rules in particular. The chief message of Schauer's analysis is that rules permit, and even constitute, a particular kind of decision‐making, one that quite deliberately insulates the decision‐taker from considerations of what would be in the circumstances the (...) best justified decision to take. Rules are thus for Schauer devices for the allocation of decision‐making power: The effect of A delegating to B the power to decide by a set of rules devised by A is that A retains much control over B 's decision‐making. Schauer canvasses the claims of what he calls “presumptive positivism” to be a theory of law which embodies such a view of legal rules. In his criticism, the author compares Schauer's view with Joseph Raz's notion of legal rules as exclusionary reasons. The author then compares “presumptive positivism” with some other recent versions of positivism and the idea of rules as devices for the allocation of power with theories of law in the Critical Legal Studies movement. (shrink)

This article provides a comment on The Force of Law, which is Schauer's new and illuminating contribution to the place of law in our societies and in our lives. It constitutes a strong defence of the importance of coercion in law. First, I consider cases where the law is not able to motivate human behaviour adequately, in order to show that legal coercion is not always justified. Second, I examine the Rawlsian distinction between the ideal and the nonideal theory (...) and its application to the theory of law. Third, I tentatively argue that coercion has no place in ideal theory, but a core place in nonideal theory. In this way, it may be plausible to reconstruct the motivation to accept the law, at least when the law is normatively justified. (shrink)

In his new book, The Force of Law, Frederick Schauer maintains that law has no necessary properties, and that therefore jurisprudents should not assume that an inquiry into the nature of law has to be a search for such properties. I argue, however, that Schauer's attempt to show that legal anti-essentialism is a defensible position fails, because his one main argument is either irrelevant or else incomplete, depending on how one understands it, and because the other main argument (...) is false. (shrink)

O presente texto tem por objetivo demonstrar como a aplicação do positivismo presumido de Frederick Schauer contribui para o desenvolvimento do Estado Democrático de Direito a partir manutenção da separação de poderes, ao impedir a realocação de Poder especificamente no bojo do judiciário, quando este interpreta as regras de competência constitucionais. Assim, busca responder à seguinte pergunta: em que medida o positivismo presumido pode contribuir para impedir que juízes “sedentos por poder” alcancem seus objetivos?

This book examines the success of Frederick Schauer’s efforts to reclaim force as a core element of a general concept of law by approaching the issue from different legal traditions and distinct perspectives. In discussing Schauer’s main arguments, it contributes to answering the question whether force, sanctions and coercion should be regarded as necessary elements of the concept of law, and whether legal philosophy should be concerned at all with necessary or essential properties. While it was long assumed (...) that legal norms are essentially defined by their force, it was H.L.A. Hart who raised doubts about whether law and coercion are necessarily connected, referring to the empowering, or more generally enabling, character exhibited by some legal norms. Prominent scholars following and refining Hart’s argument built an influential case for excluding force as a necessary element of the concept of law. Most recently, however, Frederick Schauer has made a strong case to reaffirm the force of law, shedding new light on this essential question. This book collects important commentaries, never before published, by prominent legal philosophers evaluating Schauer’s substantive arguments and his claims about jurisprudential methodology. (shrink)