Do grounding claims entail corresponding supervenience claims? The question matters, as a positive answer would help grounding theorists address worries that their hyperintensional primitive is obscure, and also increase the argumentative strategies that are available within ground-theoretic frameworks for metaphysical inquiry. Leuenberger (Erkenntnis 79:227–240, 2014a) argues for a negative response, by specifying some candidate principles of entailment and then claiming that each of them is subject to counterexamples. In this paper, I critically assess those principles and the objections he raises (...) against them, and advocate a novel entailment principle that overcomes all the problems suffered by those other principles. The principle I defend places a supervenience-based constraint on grounding claims, and secures a substantive connection between grounding and modality, weaker than necessitation. (shrink)

The goal of this paper is to provide an accurate grounding-based formulation of positivism in the philosophy of law. I start off by discussing some simple formulations, based on the ideas that social facts are always either full or partial grounds of legal facts. I then raise a number of objections against these definitions: the full grounding proposal rules out possibilities that are compatible with positivism; the partial grounding proposal fails, on its own, to vindicate the distinctive role that is (...) played by social facts within positivist accounts of law. Then, I present a more adequate and insightful formulation capable of solving their problems, which crucially relies on a robust notion of a social enabler. Finally, I model inclusive and exclusive positivism on the resulting template, and set out the advantages of the ground-enablers proposal. (shrink)

Law being a derivative feature of reality, it exists in virtue of more fundamental things, upon which it depends. This raises the question of what is the relation of dependence that holds between law and its more basic determinants. The primary aim of this paper is to argue that grounding is that relation. We first make a positive case for this claim, and then we defend it from the potential objection that the relevant relation is rather rational determination (Greenberg 2004, (...) 2006). Against this challenge, we argue that the apparent objection is really no objection, for on its best understanding, rational determination turns out to actually be grounding. Finally, we clarify the framework for theories on law-determination that results from embracing our view; by way of illustration, we offer a ground-theoretic interpretation of Hartian positivism, and show how it can defuse an influential challenge to simple positivist accounts of law. (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)

A new strategy in philosophy of law appeals to explanatory gap arguments to attack legal positivism. We argue that the strategy faces a dilemma, which derives from there being two available readings of the constraint it places on legal grounding. To this end, we elaborate the most promising ways of spelling out the epistemic constraints governing law-determination, and show that each of the arguments based on them has problems. Throughout the paper, we evaluate a number of explanatory requirements, ultimately with (...) a view to shedding light on the explanatory nature of both grounding in general, and legal grounding in particular. (shrink)

Scott Hershovitz’s Law is a Moral Practice develops a bold, novel, and comprehensive account of law: the moral practice picture. Its central thesis is that legal relations (rights, duties, powers, etc.) are moral. They are real, full-fledged normative relations, connected to genuine reasons for action, and endowed with robust normativity. Nothing less than ordinary moral relations. The account is compounded with a deflationary view of theories in general jurisprudence and of the debates about them. In this vein, Hershovitz recommends that (...) we move away from theorising about law (understood as a set of legal norms), and focus on the nature of legal relations instead. In this paper, I pursue two interrelated objectives. First, I address Hershovitz’s main arguments for the view that legal relations are moral. Second, I take issue with the asymmetry between the deflationary and inflationary stances he advocates for legal norms and relations, respectively, arguing that this different treatment is unwarranted, because the deflationary stance is, and because this very combination of attitudes is unstable. Properly understood, questions about the nature and determination of legal norms and relations can’t but be seen as complementary aspects of a unified legal metaphysics. (shrink)

This handbook offers a deep analysis of the main forms of legal reasoning and argumentation from both a logical-philosophical and legal perspective. These forms are covered in an exhaustive and critical fashion, and the handbook accordingly divides in three parts: the first one introduces and discusses the basic concepts of practical reasoning. The second one discusses the main general forms of reasoning and argumentation relevant for legal discourse. The third one looks at their application in law as well as at (...) the different areas of legal reasoning. The handbook’s division in three parts reflects its conceptual architecture, since legal reasoning and argumentation are considered in relation to the more general types of reasoning. (shrink)

Some philosophers have recently emphasized the similarities between lawmaking and the production of linguistic utterances in ordinary communication. Based on these similarities, they have defended a theory of legal interpretation that identifies the legal content of a lawmaking act with the communicative content of the authoritative “utterance”. While different versions of the theory differ with respect to which level of utterance content they regard as relevant, they agree that the theory’s scope is fully general in that it applies to all (...) legal systems. In this paper, we argue that this commitment of the theory is problematic. By examining the role of interpretative arguments in legal interpretation, we argue that there is a tension between this commitment and the doctrine of the rule of recognition. In light of this, we argue that Hartian positivism is only compatible with a weakened or “minimal” version of the theory. Insofar as both the communication theory and Hartian positivism provide true insights on how legal content is determined, this result gives us reason to accept only a minimal version of the theory. (shrink)