I argue that disputes within constitutional theory about whether recent supreme court decisions exceed the scope of legitimate judicial review and disputes within legal theory about the nature and determinacy of law are best seen and assessed as disputes over the nature of legal interpretation. I criticize the interpretive assumptions on which these disputes generally depend and defend a theory of interpretation which tends to vindicate the determinacy of law even in hard cases and the (...) style of recent court decisions which many critics find troublesome. (shrink)

The Legal Theory Lexicon series usually explicates some concept in legal theory, jurisprudence, or philosophy of law. But what are those fields and how do they relate to each other? Is "jurisprudence" a synonym for "philosophy of law" or are these two overlapping but distinct fields? Is "legal theory" broader or narrower than jurisprudence? And why should we care about this terminology? As always, this entry in the Legal Theory Lexicon series is (...) aimed at law students, especially first-year law students with an interest in legal theory. (shrink)

Introduction -- Defamation Criteria: Fact or Value? -- The Elusive Distinction between Fact and Opinion -- Defamation and Freedom of Expression -- Conclusion -- 10 Conclusion: A Unifying Prescription -- Introduction -- Socialist Positivism -- Critical Legal Positivism -- Feminist Positivism -- Alternative Dispute Resolution -- Conclusion -- Bibliography -- Index.

Critical Legal Theory and the Challenge of Feminism provides both a thorough overview and a refinement of the ideas that underlie critical legal theory. Arguing with the rigor of analytic philosophy and the alertness to paradoxes characteristic of deconstructive philosophy, Matthew Kramer begins by exploring the tangled relations between metaphysics and politics. He then attempts to transform the discourses of the critical legal studies movement by laying out a framework of five general themes: contradictions, contingency, (...) patterning, perspective, and ideology. Kramer calls for a more sophisticated awareness of their paradoxes, explaining why the paradoxes are by no means disabling or demobilizing. Finally, Kramer explores some of feminist theory's major controversies and problems, and argues that feminist theory can profit greatly by giving due attention to inescapable paradoxes. The book is an important contribution to political philosophy, jurisprudence, feminist philosophy and metaphysics, with powerful implications for epistemology and literary theory. (shrink)

This book of readings was designed for an introductory course in the theory of modern, Western law. The materials mine the depths of history, philosophy, politics, & ethics to bring to view a certain story of the present, past & future condition of modern Western legal theory, namely that "modern" legal theory is reaching its end with the new millennium.

The bumpy road to institutionalism : Schmitt's way-out of decisionism -- Exploring Schmitt's institutionalism : institutions and normality -- Institutionalist decisionism : law as the shelter of society -- Institution and identity : reassessing Schmitt's political theory -- Schmitt vs. Kelsen : the social ontology of legal life -- Schmitt vs. Hauriou : the politicization of institutionalism -- Schmitt vs. Romano : institutionalism without pluralism? -- Schmitt vs. Mortati : the concretization of the concrete order -- The impossibility (...) of legal indeterminacy -- The inconceivability of legal pluralism. (shrink)

Critical Legal Theory has conventionally been traced to the social, political, and philosophical movements of the 1960s and, before that, to the early-twentieth-century ‘realist’ critique of modern jurisprudence. In truth, however, its origins go back to classical and pre-modern thought, and to their acknowledgement of the centrality of law in attempts to conceive of the good life, or the just polity—a centrality that is, moreover, also discernible in the recent gravitation of a number of contemporary philosophers and theorists (...) towards law. Against the ‘restricted’ and ‘conservative’ character of modern jurisprudence, Critical Legal Theory constitutes a return to this more general interest in law and legality. Exceeding the limits of jurisprudence, it has, moreover, drawn upon the most ancient and most contemporary traditions of critical thought in order to pursue new ways of understanding, living, and imagining the law. Critical Legal Theory is now an established—if heterogeneous and controversial—field of study, represented by numerous international journals, regional organizations, and global conferences. As the field continues to flourish as never before, this new title in Routledge’s Major Works series, Critical Concepts in Law, meets the need for an authoritative reference work to make sense of a rapidly growing and ever more complex corpus of literature. Indeed, it is a landmark collection of Critical Legal Theory’s principal sources, orientations, movements, and themes. The first volume in the collection illuminates the foundations of Critical Legal Theory in contemporary continental thought, as well as providing an account of its institutional history. Volume II, meanwhile, examines the ways in which Critical Legal Theory has addressed and problematized conventional jurisprudential ideas about law, drawing upon the insights of philosophy, as well as other disciplines. Volume III assembles the best and most influential research to provide an overview of the movements that characterize the field. The scholarship assembled in the final volume brings together the key work to explore a range of substantial themes with which Critical Legal Theorists have engaged. Supplemented with a full index and comprehensive introductions, newly written by the editors, which situate the collected material in the context of more general theoretical traditions, as well as in critical relation to jurisprudence, _Critical Legal Theory_ is destined to be valued by scholars, students, and researchers as a vital resource. (shrink)

The authors investigate MacCormick and Weinberger's claim that the Institutional Theory of Law provides a conceptual framework for the study of legal phenomena from a socio-legal point of view. They evaluate this claim by confronting both the Institutional Theory of Law and Weinberger's theory of action with two approaches in socio-legal theory, i.e. the instrumentalist and the constitutive approach. The conclusion is that the Institutional Theory of Law lends itself to empirical research (...) from an instrumentalist perspective, for both place the concept institution in the context of law. Weinberger's theory of action may provide a basis for empirical research from a constitutive perspective. The authors make some suggestions for refinement of Weinberger's theory of action in order that the relation between institutions and action can be labeled dynamic. (shrink)

This chapter contains section titled: Historical Background An Overview The Indeterminacy Thesis Critical Legal Theory and Social Theory The Critique of the Public/Private Distinction Policy “Implications” The Critique of Rights Critical Feminist Theory and Critical Race Theory The Legacy References.

This new book argues that at the core of legal philosophy’s principal debates there is essentially one issue judicial impartiality. Keeping this issue to the forefront,Raban’s approach sheds much light on many difficult and seemingly perplexing jurisprudential debates. Modern Legal Theory and Judicial Impartiality.

brings together some of the most important essays in the area of the philosophy of law written by leading, international scholars and offering significant contributions to how we understand law and legal theory to help shape future debates.

This article aims to contribute to the question of how to conceptualise the relationship between theory and practice in feminist scholarship in law. It looks in detail at the implications of different issues raised in a recent debate between Anne Bottomley and Ngaire Naffine on the existence of a “legal feminist orthodoxy”. I critique the dominance of ethics over politics and join Bottomley in her attack upon “the ethics of respect for the other”, albeit from a different position. (...) I then look at the ways in which the problem of “essentialism” is being rethought from a feminist perspective. (shrink)

This article aims at linking empirical research to legal theories, in a way that could enhance the benefits of this synergy. Jurisprudence, until recently the usual term for theoretical approaches to law, is now often replaced by the term legal theory. Difference between legal theory and empirical research is reflected in their consideration of subject matters, aims, and methods of research. However, there also exist commonalities between the two, i.e. both aim at comprehending law and (...) legal systems. While legal theory uses philosophical tools, its subject matter still remains a social phenomenon, for social ends. And since empirical research is a means to gather information about law, it could act as a prime source of information for legal theory. While empirical research has its own end to follow, what is missing is, attention to some legal theory, not just general legal theory, but which can also critique philosophical discourses to legality. (shrink)

Later reprinted by Deborah Charles Publications (and not available from Amazon), this book expounds and comments on the application of Greimasian semiotics to a legal text, as found in the article by Greimas and Landowski in Greimas, Sémiotique et Sciences Sociales (1976), compares this with the semiotic presuppositions of Hart, Dworkin, MacCormick and Kelsen, and offers my own analysis of the implications of such semiotic analysis for legal theory, including some more recent radical non-positivist accounts.

The aim of the paper is that of putting intoquestion the dichotomy between fact-judgments andvalue judgments in the legal domain, with its epistemologicalpresuppositions (descriptivist image of knowledge) andits methodological implications for legal knowledge (valuefreedom principle and neutrality thesis). The basicquestion that I will try to answer is whether and on whatconditions strong ethical value-judgments belong withinlegal knowledge.I criticize the traditional positivist positionsthat have fully accepted the value-freedom principle andvalue-neutrality thesis, but I also submit to critical scrutinythe new post-positivist (...) views, that, even if they showinteresting conceptual developments on the matter, end up,nevertheless, by presupposing the same epistemologicalimage, while I call descriptivism. I stress that only by giving updescriptivism and accepting constructivism as a generalimage of knowledge is it possible to see the problem ofvalue-ladenness of legal knowledge in a new light.On the basis of the constructivist image, I present two theses:firstly, at a much broader epistemological level, I advance theminimalist thesis on value-judgments, which simply removes thegeneral ban on treating values as present withinknowledge; secondly, I advance the strong thesis on legalvalue-judgments, which consists in arguing for thenecessary presence of ethical value-judgments in legal knowledge.I draw, in the end, some important implications from acceptanceof the strong thesis. One of these implications isa new distinction that replaces the traditional distinctionbetween fact-judgments and value judgments, namely, thedistinction between value-judgments exhibiting a cognitivefunction and value-judgments exhibiting a creativefunction. (shrink)

The authors investigate MacCormick and Weinberger's claim that the Institutional Theory of Law provides a conceptual framework for the study of legal phenomena from a socio-legal point of view. They evaluate this claim by confronting both the Institutional Theory of Law and Weinberger's theory of action with two approaches in socio-legal theory, i.e. the instrumentalist and the constitutive approach. The conclusion is that the Institutional Theory of Law lends itself to empirical research (...) from an instrumentalist perspective, for both place the concept `institution' in the context of law. Weinberger's theory of action may provide a basis for empirical research from a constitutive perspective. The authors make some suggestions for refinement of Weinberger's theory of action in order that the relation between institutions and action can be labeled dynamic. (shrink)

Contains an integration of methods to be used for teaching and learning of legal theory. The text examines the uses of theory in the Australian legal environment by demonstrating how certain theories are explicitly or implicitly used by the courts to frame judgements.

The aim of the paper is that of putting into question the dichotomy between fact-judgments and value judgments in the legal domain, with its epistemological presuppositions (descriptivist image of knowledge) and its methodological implications for legal knowledge (value freedom principle and neutrality thesis). The basic question that I will try to answer is whether and on what conditions strong ethical value-judgments belong within legal knowledge. I criticize the traditional positivist positions that have fully accepted the value-freedom principle (...) and value-neutrality thesis, but I also submit to critical scrutiny the new post-positivist views, that, even if they show interesting conceptual developments on the matter, end up, nevertheless, by presupposing the same epistemological image, while I call descriptivism. I stress that only by giving up descriptivism and accepting constructivism as a general image of knowledge is it possible to see the problem of value-ladenness of legal knowledge in a new light. On the basis of the constructivist image, I present two theses: firstly, at a much broader epistemological level, I advance the minimalist thesis on value-judgments, which simply removes the general ban on treating values as present within knowledge; secondly, I advance the strong thesis on legal value-judgments, which consists in arguing for the necessary presence of ethical value-judgments in legal knowledge. I draw, in the end, some important implications from acceptance of the strong thesis. One of these implications is a new distinction that replaces the traditional distinction between fact-judgments and value judgments, namely, the distinction between value-judgments exhibiting a cognitive function and value-judgments exhibiting a creative function. (shrink)

How might the social sciences best be employed in the study of law, especially in light of today's legal climate of anti-foundationalism? Realistic Socio-Legal Theory addresses this question thoroughly and precisely. Drawing upon philosophical pragmatism to construct an epistemological and methodological foundation, this book formulates a framework for a realistic approach to socio-legal theory. Brian Z. Tamanaha contrasts the strengths of his realistic approach with those of the major schools of socio-legal theory through (...) application to many key issues in the field. He explores the problematic state of socio-legal studies, the relationship between behavior and meaning, the notion of legal ideology, the nature of the concept of law, the problem of indeterminacy in rule following and application, and the structure of judicial decision making. Tamanaha's discussion is always clear and concise as he articulates a social theory of law that draws equally from legal theory and socio-legal studies. His book has much to offer those interested in the gathering and organization of knowledge about law and legal phenomena. (shrink)

Chapter 1: An Introduction: The ‘Semantic Sting’ Argument Describes Dworkin’s theory as concerning the conditions of legal validity. “A legal system is a system of norms. Validity is a logical property of norms in a way akin to that in which truth is a logical property of propositions. A statement about the law is true if and only if the norm it purports to describe is a valid legal norm…It follows that there must be certain conditions (...) which render certain norms, but not others, legally valid. Hence it also follows that there can be two types of disagreement over the truth or falsehood of propositions about the law. People can disagree over the question ‘What are the conditions of legal validity?’, in which case their disagreement is a theoretical one. Or they can agree on the conditions of validity, and disagree as to whether or not those conditions actually obtain in a given case or not.” Argues that the best way to interpret Dworkin’s ‘semantic-sting argument’ is as a general argument against conventionalism in legal positivism. Summarizes the outcome of Dworkin’s argument as follows: “[I]f Dworkin is right about the legal reasoning of lawyers and judges, conventionalism would be self-defeating: if lawyers and judges recognize as legally binding not only those norms which are uncontroversially identifiable under the Rule of Recognition, that is, if what they recognize as binding is not only source-based law, then conventionalism turns out to be false on its own terms. In other words, either law is not what lawyers and judges think that it is, in which case law is not a matter of conventions, or – if it is what lawyers and judges think – conventionalism is false, as they do not see the law as purely a matter of conventions.” Dworkin’s theory, then, is a new conception of jurisprudence aiming to present itself as a rival to conventionalism. The book will be concerned with re-examining positivism in light of the interpretative challenge. Chapter 2: Meaning and Interpretation “[R]oughly, interpretation can be defined as an understanding or explanation of the meaning of an object.” Interpretation in this narrow sense is distinct from a less formal and broader use of interpretation that makes it equivalent to explanation. “Hence also, only those objects which are capable of bearing some meaning qualify as objects of interpretation.” [Why shouldn’t we think of interpretation as object-identification? This seems to be closer to what Dworkin has in mind.] Thus, a consideration of the philosophical work on meaning is appropriate. First, a consideration of Davidson on interpretation. The thesis is that Davidson’s “radical interpretation” can only account for sentence meaning and not for linguistic interpretation in general. Davidson cannot account for the non-rule-governed aspects of communication. “Semantics, as opposed to interpretation, concerns those aspects of communication which are rule or convention governed…but such rules are normally unavailable as reasons or justifications for an interpretation. On the contrary, interpretation is usually required because the issue is not determined by rules or conventions.” Interpretation, rather, is parasitic with understanding the meaning of an expression and not equivalent with it. As Dummett notes, any reflection on the meanings of words assumes prior knowledge of ordinary meanings. “This leads to the conclusion that understanding or explaining the meaning of an expression and interpreting it, are two conceptually separate things. It also indicates that seman ics can only be employed, if at all, to elucidate the concept of interpretation by way of contrast: interpretation concerns those aspects of communication which are under-determined by semantic rules or conventions.” Pragmatics, the study of problems posed by discrepancies between utterer’s meaning and sentence meaning, would seem to be closer to inquiry into interpretation. Both are concerned with understanding how meaning is possible where conventional rules leave off. Contemporary pragmatics, moreover, recognizes the logically indeterminate character of communicative inferences beyond conventional meaning and that the contextual conditions that account for the possibility cannot be realized in the semantic structure of the sentence. However, different criteria of success may be at work in pragmatics than interpretation. Pragmatics is concerned with how communication is achieved and thus the criteria of success would be grasping a speaker’s intentions. Many think, however, that communication is unimportant in certain spheres of communication, e.g. artistic interpretation, and that in these cases the aim of interpretation is not to uncover the actual artist’s intentions. What kind of meaning is interpretation aimed at then? It cannot be the meaning the object has for the interpreter. “Interpretation purports to be a statement about the object interpreted, not about the subject who offers the interpretation…it is crucial to remember that not everything we say about a work of art, or any other text, amounts to an interpretation of it. Only those aspects of a text which can shed light on its meaning form part of the text’s interpretation. What the text means for someone rarely entails anything about what the text means.” [This is puzzling to some extent for it remains somewhat ambiguous what it means to talk of subject-independent meaning.] Interpretive meaning attribution is, rather, counterfactual. “In general, I will suggest that the answer to this question consists in the fact that meaning is assigned by a counterfactual statement. Given that x is the meaning attributed to, for instance a text T, and x is not the literal meaning of T, nor is it the meaning of T intended by its author, then the attribution of meaning x to T can only be understood as the contention that on the basis of certain assumptions a certain fictitious or stipulated speaker would have meant x by expressing T.” Thus, on this account, interpretation, when it does not concern an actual speaker, turns out to be a kind of counterfactual intention attribution. Twofold point: “First, that interpretation is essentially a matter of attributing intentions, that is, in the pragmatics sense of ‘meaning’, namely, meaning that such-and-such by an act or expression. At the same time, interpretations need not be based on the intentions of actual authors; the meaning of an act or expression is understandable in terms of counterfactual intentions.” [Are we really restricted to understanding the coherence and integrity of meaning in such a way? Presumably the author is a kind of device for organizing meaning, much like Dworkin’s integrity, but need it take that format?] The logic of interpretation is typically reducible to intention attribution. [What role does the counterfactual author play in structuring meaning?] The criteria of interpretive success will depend upon the object, whether it is the real author or the counterfactual author. If the former, success will depend upon the retrieval of the author’s actual intentions. “Likewise, if the author is characterized in terms of some ideal representative of a certain genre, for instance, the presumptions which are taken to determine this c aracterization would provide the criteria of success for the particular interpretation offered.” [The criteria of success would seem, then, to be the principles, ideals, etc. that we attribute to the counterfactual author. These attributed qualities would be doing all the work – is the attribution of intention to the hypothetical author, then, really necessary at all?] [Does this account presuppose a weird dichotomy between what an object is and what it means? This dichotomy is different, if present at all, in Dworkin.] Chapter 3: Dworkin’s Theory of Interpretation and the Nature of Jurisprudence Three main insights of Dworkin’s theory of interpretation: “First, that interpretation strives to present its object in its best possible light. Second, that interpretation is essentially genre-dependent. And third, that there are certain constraints that determine the limits of possible interpretations of a given object.” Why the best light? Dworkin doesn’t really address this question in depth but claims that otherwise we are left with no way of justifying and choosing an interpretation or we are left with the author’s intention model, which we should reject. [Marmor doesn’t seem clear on what precisely it means to present something in its best light – seems to conflate it with most appealing light which, I take it, is different than what Dworkin has in mind.] “Dworkin is quite right to maintain that without having some views about the values inherent in the genre to which the text is taken to belong, no interpretation can take off the ground. The values we associate with the genre partly, but crucially, determine what would make sense to say about the text, what are the kinds of meaning we could ascribe to it.” There is no necessity for an interpretation to present an object in its best light with regards to the genre it is taken to be part of. Interpretations “could simply strive to present it in a certain light, perhaps better than some, worse than others, but in a way which highlights an aspect of the meaning of the text which may be worth paying attention to for some reason or another.” [What kind of reasons would count in choosing to present it in one light rather than another?] There is simply zero grounds for Dworkin’s assertion that we have no reason to pay attention to an interpretation that does not present it in its best light. Take a psychoanalytic interpretation of Hamlet, for example – not the best light, but a legitimate one. [This seems related to the next criticism – clearly Dworkin would have to loosen his insistence on the best, though not to detriment.] Moreover, especially with regards to art, it doesn’t appear possible to make an all things considered judgment about the best interpretation given the incommensurability of different values that are taken to inhere in a given genre. [Dworkin can respond here that we may have different available interpretations that could be justified with respect to the relevant value. Moreover, a lack of common denominator does not prevent any comparison whatsoever.] Constructive interpretation concerns social practices constituted by norms – it imposes a purpose or value rendering intelligible the normative character of the practice. There is a separate aspect of constructive interpretation that maintains that elements of the practice are sensitive to the point of the practice. It is important to note that different social practices will institutionalize themselves in different ways – thus, different practices will establish varying conditions on how the practice can be altered. The position of the positivists is that evaluative judgments concerning what the law should be are insufficient for determining what the law is given the nature of law’s institutionalization.&nb p; [This would seem to reside on a certain conception of law, i.e. an interpretation about where the value of law lies.] “[T]his being one of the main points of dispute between Dworkin and his positivist opponents, Dworkin cannot at this initial state presume law to be sensitive to its value in the manner that other, non-institutional practices might be, without incurring the charge of having assumed the very point at issue.” The upshot for Dworkin is that any explanation of a social practice such as law requires the same kind of reasoning as participation in that practice. This will be called the hermeneutic thesis. We can try to reconstruct a justification for this view based on the necessity of shared background assumptions – but this will not do since Dworkin’s claim is stronger: it contends that participants’ and theorists’ must “adopt one and the same normative point of view.” [The sense of normative here is unclear. It is true, though, that shared background assumptions do not imply viewing the law as valuable in any particular way, or at least it does not imply this in any strong sense.] Dworkin makes two distinct points with the hermeneutic thesis: “First, that the explanation of a social practice, like law or the arts, is essentially interpretative, and as such, necessarily value laden. Second, that the interpretation of such social practices, which Dworkin calls ‘argumentative’, is unique in the sense that the practice itself is an evaluative enterprise, and that therefore the interpreter of such a practice must form an evaluative judgment of her own about those values which are inherent in the practice that she purports to interpret.” [As stated, the first thesis is terribly ambiguous – for Dworkin, it clear implies a commitment to constructive interpretation. For Marmor, who accepts it, it is totally unclear what commitment he intends to make. He seems to mean simply that we have criteria for success concerning what counts as a successful explanation.] Mamor denies the second thesis. “What Dworkin seems to ignore here is that there is a crucial difference between forming a view about the values which are manifest in a social practice, like law, and actually having evaluative judgments about them.” [The problem, however, it that it is a contentious matter what values are part of the law – a theorist’s account of what values are constitutive of a particular legal system must rely on the kind of arguments which participants rely on. Of course, a theorist might simply note a debate about values and attempt to remain agnostic, but this will fail to be a full theoretical account of what law is!] Dworkin’s thesis seems to depend exclusively on his account of constructive interpretation. [This seems exactly right.] Chapter 4: Coherence, Holism, and Interpretation: The Epistemic Foundation of Dworkin’s Legal Theory Begins with discussion of Rawls’ reflective equilibrium. Sums up dual criticism as follows: “[T]he assumption that intuitions are independently true and the converse one, that their truth depends on fitting a coherent scheme, both seem to yield paradoxical results.” Dworkin, in his article “The Original Position”, claims that Rawls cannot commit himself to ethical realism. “[T]he natural model presupposes some form of ethical realism, while the constructive model does not. One important difficulty arising from an attempt to apply the natural model to Rawls is, that under the natural model, any theory which dopes not account for an intuition, at least for one which is held firmly, cannot be wholly satisfactory, just as scientific theory which does not account for certain observational data it is supposed to cover, would not be satisfactory in a familiar way.” Rawls, rather, is committed to a constructivist view of morality. Moreover, the reason we value coherence epistemically in moral theory is that it itself is a value of political morality – fairness requires consistency and publicity in the application of moral standards. Marmor notes the following problem with such a view: “[I]f coherence is justified, as it is here, with reference to certain moral values, that is, a specific conception of fairness, then we face the following problem: the presupposed values of fairness must themselves be based upon intuitive convictions, in which case the question of their truth cannot be ignored. If they are taken to be true…we are driven back to the perplexities of the natural model.” Discusses, helpfully, the Fish/Dworkin debate. The upshot is that Dworkin’s interpretive model is best off if it commits itself to a Quineian holism. However, this undermines his distinction between internal and external skepticism since holism must deny that moral judgments constitute a closed system. [This analysis seems exactly right.] Endorses Simmonds view that Dworkin’s theory does not meet the requirements of complexity he identifies as necessary to avoid vicious circularity in interpretive judgments of fit and identity. Coherence is doing the work through and through and therefore the interpretive theory of law is circular. [Will require further investigation, though it is unclear how coherence is doing any work in the pre-interpretive stage. At this stage, the judgments, if interpretive, seem to be derived from different sources. In any case, using coherence as a value seems to be highly suspect.] Why doesn’t Dworkin just reject Fish’s assumptions: because of his jurisprudence. “If legal texts can have a meaning that is not entirely dependent on a process of interpretation, then it is at least sometimes the case that the law can simply be understood, and applied, without the mediation of interpretation. And if that is the case, then the argument from interpretation against legal positivism collapses. It is no longer the case that every conclusion about what the law is, depends on evaluative considerations about what it ought to be.” Chapter 5: Semantics, Realism, and Natural Law Assessment of Michael Moore’s legal realism and its implications. [The final criticisms of Moore are not decisive.] Chapter 6: Constructive Identification and Razian Authority A consideration of Dworkin’s denial that the communication model of interpretation is appropriate for legal interpretation. Marmor argues that intentions do play a crucial role in the identification of legal norms in a way that is incompatible with Dworkin’s “coherence thesis”. Marmor takes Dworkin to be committed to the constructive identification thesis: that the identification of something as part of the legal, artistic, etc. genre can be done sufficiently by evaluative considerations. “Here, one must maintain that evaluative considerations are sufficient to determine whether something is a legal norm or a work of art”. [Fit, however, constrains possible evaluative considerations – thus evaluative considerations are not sufficient in themselves.] “Now the crucial point here is this: if you maintain the possibility of constructive identification in art, you must assume that works of art can be identified as such on the basis of certain features they happen to possess, features which contain no reference to any particular intention to create a work of art…unless we take intentions into account, how can we discriminate between the concept of an aesthetic artifact and the con ept of a work of art?” [It is unclear, and I think false, that constructive interpretation of anything requires identifying something irrespective of an artificers intentions. Those intentions may be relevant, dependent upon the genre under which we are trying to classify the object. Nothing, seemingly, about constructive interpretation in general excludes this possibility.] Marmor’s point is that it turns out to be impossible to identify art as art without reference to an artist’s intentions – especially given the state of contemporary art. [It is notable that Marmor’s response to counterexample implicitly depends upon a fully developed theory of aesthetics. His cursory comments on the matter of identifying art seem insufficient to say the least.] The rest of the chapter considers the incompatibility of Raz’s account of authority with constructive interpretation. The incompatibilities mentioned do not move beyond what Raz identifies in his article “Authority, Law and Morality”, but a defense of this notion of authority is defended in several [inconclusive] respects. [Raz and Marmor want to separate identification from content. This is not clearly a defensible separation.] Chapter 7: No Easy Cases? Chapter defends notion that there is a distinction between easy and hard cases in the positivist sense. Takes a Hartian approach and ultimately defends the distinction by associating it Wittgenstein’s conception of rule following. The point is that one need to look the purpose of rule in order to understand what the rule requires. Chapter 8: Legislative Intent and the Authority of Law Examines the following doctrine concerning the role of legislative intent in adjudication: “[F]irst, it would hold that laws, at least in certain cases, are enacted with relatively specific intentions, and that this is a matter of fact which is discernible through an ordinary fact-finding procedure. Second, that in certain cases the presence of such a fact, namely, that the law was enacted with a certain intention, provides judges with a reason to decide the legal dispute in accordance with the relevant legislative intent.” [It is important that for Marmor, interpretive strategies are only appropriate in hard cases. However, we should wonder what grounds positivism can offer for deciding a hard case in any manner which is not the morally best manner according to the judgment of the judge. There are no legal grounds, by definition, in hard cases and so what justificatory strategy would endorse any judicial decision except for the morally best one?] We can ascribe intentions to a legislative body, when this is possible at all, by taking the shared intentions of the majority, rather than some group intention, to be the significant intentions. Moreover, we should expect a good deal of consensus about intentions for otherwise it is hard to explain how legislative bodies are able to produce so much legislation. Discussion of kinds of intentions concludes as follows: “I have distinguished between three main types of intention that are potentially relevant from the legal point of view. Apart from the intentions that are manifest in the language of the law itself, legislators typically have further intentions in enacting a given law, and sometimes they would have certain intentions bearing on its proper application. I have also suggested that some of these further intentions may be essentially non-avowable, in which case they are rendered initially irrelevant. Finally, I have pointed out that considerations of consistency require that the legislator’s application intentions be taken into account only if, and to the extent that, they are in accord with his further intentions.” The manner in which intentionalism is to be justif ed relies on the distinction, Marmor maintains, between expert and mere collective action authority. “The point I wanted to make is strictly conditional: if, and only if, a certain law is justified on the basis of the expertise branch of the normal justification thesis, would it make sense to defer to the legislature’s intentions in the interpretation of the law, that is, to the extent that there is, in fact,; such an intention and it can clarify something that needs clarification.” Insofar as a legislature can be considered an expert on the matter requiring adjudication and interpretation should the body’s intention be taken into account. Chapter 9: Constitutional Interpretation Begins by laying out general necessary features of a constitution. Then Marmor moves on to consider general questions of constitutional legitimacy. First, he considers what grounds might be offered for the legitimacy of a constitution at all. He notes that the central question is what permits a single generation to bind future generations. He then examines four arguments to avoid this problem. The first is based on the moral legitimacy of the constitution; Marmor rejects this solution for the [truly dubious] reason that the constitution would make no practical difference because it would not supply reasons in addition to those provided by morality [but, presumably, the point is that these legally valid rules would be institutionally enshrined]. The second is based on the moral authority of the framers and Marmor rightly rejects this on the basis of the idealization of the framers it requires and less rightly on the basis that there cannot be moral authorities. Third is the “argument from interpretation” which claims that “as long as the particular content of the constitution is determined by its interpretation, and the authoritative interpretation at any time correctly instantiates the values which ought to be upheld in the community, the constitution would be morally legitimate”. The fourth is Raz’s which argues that a constitution is valid so long as its constraints are morally permissible because conventions of this type might aid the continuity of the legal system, i.e. it is important to have a convention of this type and the constitution is a kind of this type. Marmor appears to endorse these two approaches and concludes: “The conditions for the legitimacy of a constitution must comprise the following conditions. First, the values and principles enshrined in it must be morally permissible…Second, when certain choices are made in particular cases, they would be legitimate if they are either morally underdetermined, or else, morally correct…It follows from this that both arguments must assume that at least in those areas in which the constitution would make a moral difference, it can be interpreted to make the difference that it should, that is, according to the true moral principles that should apply to the particular case...the moral legitimacy of constitutions very much dependent on the practices of their interpretation. In other words, a great deal of the burden of moral legitimacy is shifted by these arguments to the application of the constitution, thus assuming that the constitution is legitimate only if the courts are likely to apply the constitution in a morally desirable way.” [This implies that the only significant value constitutions have is in providing a conventional practice where some such practice is required.] Moves on to argue that courts typically rely, and rightly so, on moral considerations when deciding constitutional issues because typically, in cases of the kind that reach the supreme or constitutional court, there is no law on the case. Much of this relies on his earlier discussion about the nature of interpretation in the law – that legal interpretation is always a matter of cha ging the law. (shrink)

The papers selected for this volume offer a panorama of problems and methods at the intersection of legal theory and the humanities. The issues addressed include the role of the emotions and the imagination in legal reasoning, and the protection of the diversity of voices and perspective in the name of community. The articles balance renewed calls to humanise legal theory with those that analyse and explore the relevance of specific domains of the humanities - (...) such as literature, architecture, music, painting, drawing and film - for law. (shrink)

As many disciplines in the humanities have experienced a focus on culture's impact in recent decades, questions surrounding the significance of media such as writing, print, and computer networks have become increasingly relevant. This book seeks to demonstrate that a media and cultural theory perspective can also be highly productive for legal theory. Thomas Vesting approaches law as an artificial and constructive element within culture and emphasizes the many possibilities that varied forms of media have opened to (...) law, from oral history through to scripture, print and modern day digital networks. While providing historical examples for these theoretical assumptions, the connections between media and law are reconstructed in a practical way and with an eye toward the future. The book closes with an analysis of our present age as a network culture and discusses how this metaphorical framework can be of use in thinking about issues such as constitutionalism, human rights, the state, democracy and education. 'Legal Theory and the Media of Law' will be of great interest to legal, cultural and media theorists as well as academics of politics, sociology and philosophy" -- Back cover. (shrink)

Current legal theory is concerned with the presence of principles in law partly because they are at the core of Dworkin's criticisms of Hart's rule of recognition. Hart's theory is threatened by the possibility that the identification of some principles follows an extremely relaxed rule of recognition, or even no rule at all. Unfortunately, there is no conclusive test to ascertain what is the case in actual practice. On the other hand, the evaluative arguments which support Dworkin's (...) proposal of principled adjudication are forceful but not conclusive. Moreover, since ultimate controversy over values is plausible, judicial discretion may sometimes be inevitable. (shrink)

The concept of law is not a theorist's invention but one that people use every day. Thus one measure of the adequacy of a theory of law is its degree of fidelity to the concept as it is understood by those who use it. That means as far as possible. There are important truisms about the law that have an evaluative cast. The theorist has either to say what would make those evaluative truisms true or to defend her choice (...) to dismiss them as false of law or not of the essence of law. Thus the legal theorist must give an account of the truth grounds of the more central evaluative truisms about law. This account is a theory of legitimacy. It will contain framing judgments that state logical relations between descriptive judgments and directly evaluative judgments. Framing judgments are not directly evaluative, nor do they entail directly evaluative judgments, but they are nonetheless moral judgments. Therefore, an adequate theory of law must make (some) moral judgments. This means that an adequate theory of law has to take a stand on certain (but not all) contested issues in political philosophy. Legal theory is thus a branch of political philosophy. Moreover, one cannot be a moral-aim functionalist about legal institutions without compromising one's positivism about legal norms. (shrink)

This carefully selected set of readings presents some of the most important articles in the field. The collection is essential reading for anyone with an interest in legal philosophy. Gathers together some of the most important articles in the field of philosophy of law and legal theory. Complements Dennis Patterson's _A Companion to Philosophy of Law and Legal Theory_. Represents essential reading for the beginning law student.

If laws and rights were to be understood cumulatively, as anamount of quantitative data, branches and specialties, we wouldnot have understood it properly. The understanding of law thatthe legal theory provides, is not reached until the law is seen asa complex whole, avoiding any kind of arbitrary simplifications.This comprehension of the law accepts it as plural and diverse,while unitary and organic. However, these plurality and diversitycan only be adequately appreciated in its true measure from itsunity and socio-historical organization.--.

The use of vague language in law has important implications for legal theory. Legal philosophers have occasionally grappled with those implications, but they have not come to grips with the characteristic phenomenon of vagueness: the sorites paradox. I discuss the paradox, and claim that it poses problems for some legal theorists (David Lyons, Hans Kelsen, and, especially, Ronald Dworkin). I propose that a good account of vagueness will have three consequences for legal theory: (i) (...) Theories that deny that vagueness in formulations of the law leads to discretion in adjudication (including Dworkin's) cannot accommodate “higher-order” vagueness, (ii) A legal theory should accept that the law is partly indeterminate when it can be stated in vague language, (iii) However, the traditional formulation of the indeterminacy claim, that a vague statement is “neither true nor false” in a borderline case, is misconceived and should be abandoned. (shrink)

Introduction to Critical Legal Theory provides an accessible introduction to the study of law and legal theory. It covers all the seminal movements in classical, modern and postmodern legal thought, engaging the reader with the ideas of jurists as diverse as Aristotle, Hobbes and Kant, Marx, Foucault and Dworkin. At the same time, it impresses the interdisciplinary nature of critical legal thought, introducing the reader to the philosophy, the economics and the politics of law. (...) This new edition focuses even more intently upon the narrative aspect of critical legal thinking and the re-emergence of a distinctive legal humanism, as well as the various related challenges posed by our 'new' world order. Introduction to Critical Theory is a comprehensive text for both students and teachers of legal theory, jurisprudence and related subjects. (shrink)