The Nature of Law and Legal Systems

Marriage and divorce are among the issues that have received attention in Ancient Iranian law, and the reason for this is that the issue of marriage has been of special importance in Zoroastrianism. In doing so, Ancient Iranian law, which is based on this tradition, has paid special attention to this issue. Further, the issue of a woman's ownership of her property and what she gets from her husband during marriage, as well as her ownership of property after divorce, is (...) one of the branches of these two issues. The basic question of the study is whether women have authority in the topics of marriage and divorce, as well as the property or not? To answer this question, we have first examined two introductions (equal rights of men and women and free will) and after explaining these two concepts in the Zoroastrianism and the Ancient Iranian Law, we have explained marriage and divorce in the tradition of Ancient Iran. Last but not least, the issue of women's ownership during marriage and after divorce has been investigated. -/- . (shrink)

Deep legal change occurs when, without legal justification, one legal rule is replaced by another. While often ignored in legal theory, these rule-breaking normative transformations are common and significant enough to warrant careful attention. In this thesis, I analyse the structure of deep legal change and discuss how a philosophically rigorous jurisprudence should approach a legal phenomenon that appears to be legally inexplicable. In particular, I focus on the implications of rule-breaking rule-changes for our conception of courts and legal reasoning. (...) To understand why deep legal change occurs, we need to provide a normative explanation that clarifies why courts, as courts, have reasons to break the law. My solution takes me to G. W. F. Hegel’s Philosophy of Right. Hegel invites us to think of the judicial process as being grounded in two institutional values: the establishment of legal security and the protection of the “universal interest” of the state. Sometimes, these two values come into conflict. In these moments, established legal rules give way to fundamental state-interests. With Hegel, we can say that it is inevitable that political reasons periodically override legal reasons. In deep legal change, the fundamentally political character of law becomes visible. While reminiscent of Carl Schmitt and the literature on emergency powers, this theory of law is much closer to the reason-of-state tradition. Against the background of several historical case studies and contemporary scholarship, I demonstrate the novelty, coherence, and explanatory power of a Hegelian account of deep legal change. (shrink)

The relevance of this study is due to the need to analyze foreign scientific literature in the field of philosophy of law, revealing trends in the evolution and development of natural law theories. Despite the significant number of publications on the theory of natural law its key theses and arguments are discussed by post-soviet scientists in isolation from modern discussions by foreign jurists. The subject of the research in the paper is the reconstruction and rational interpretation of the arguments of (...) natural law theories forming the doctrine of the so-called New Classical Natural Law (NCNL) and presented in the works of John Finnis and Germain Grisez. The purpose of this study is an attempt to reveal the logical structure of the natural law argumentation, especially the answers to the Question «Why would it be rational for agents to respect other people’s natural rights?». The paper uses traditional methods typical of philosophical and legal research, including methods of logical and linguistic analysis, historical reconstruction and rational interpretation. The novelty of this paper is due to a new approach to the disclosure of arguments and the logical structure of the reasoning of proponents of the theory of natural law. Clarification of the nature, advantages and disadvantages of such an argument can become the main one for further philosophical and legal research. (shrink)

Title 18 §2103 of the Pennsylvania Consolidated Statutes forbids me from insulting the Pennsylvania flag. Title 42 §5552 forbids Pennsylvania’s prosecutors from holding me accountable now for insul...

The law maintains, rather than challenges, the powers that be – or so it is commonly thought. In ‘Rackets and Spirit,’ a little known and untranslated essay, Max Horkheimer complicates this notion by attributing to law a ‘force of resistance’. He contends that, under certain conditions, the legal process develops a logic of its own, one that can become disjointed from the rationale of power. In this Critical Reflection, I look closely at the paragraph in which Horkheimer introduces the notion (...) of a ‘force of resistance’. I argue that Horkheimer develops a theme that he and Theodor W. Adorno return to in the Dialectic of Enlightenment: the spiritual instruments of domination, among them law, have the potential to turn against domination. At the same time, Horkheimer is clear that law does not resist automatically: it takes human agents to put the legal sphere into opposition to the political sphere. I illustrate this thought with respect to the recent history of federal abortion rights in the United States. (shrink)

Willem Witteveen, a member of the Upper House for the Dutch Labour Party and professor at Tilburg University, was among the passengers on the MH17 aircraft that crashed in eastern Ukraine in July 2014. Prior to this tragic incident, he had submitted the manuscript of “De wet als kunstwerk [The Law as a Work of Art]”. The posthumous edition of the book has been augmented with a foreword by his son, Freek Witteveen, and a series of collages and miniatures. Consequently, (...) it serves as a tribute and memorial to a distinguished jurist and esteemed politician. In his book, Witteveen presents a measured critique of the neoliberal ideology that has predominated in Dutch society for numerous years and has been embraced by both conservative and progressive political factions. He posits that this ideology demonstrates limited regard for the law as an end in itself, instead primarily utilizing the law as a means for addressing social issues: 'As soon as someone discovers the possibility of establishing rules, whether or not enforced with power or carried by authority, the temptation arises to see the rule as a solution to a problem, as the instrument in the hands of the community to make the problem manageable.' (450) Witteveen problematizes this inclination by examining the central metaphor underlying it: the metaphor of the tool. In this context, the laws enacted by the legislature are analogous to the tools employed by a craftsman, such as a mechanic or carpenter. [in Dutch: Willem Witteveen, Eerste Kamerlid voor de PvdA en hoogleraar in Tilburg, was een van de inzittenden van het passagiersvliegtuig MH17 dat in juli 2014 neerstortte in Oost-Oekraïne. Vlak voor deze tragische vlucht had hij het manuscript van De wet als kunstwerk ingeleverd. De postume uitgave van het boek is uitgebreid met een voorwoord van zoon Freek Witteveen en een serie collages en miniaturen. Het functioneert zodoende als eerbetoon en nagedachtenis aan een begaafd jurist en een bevlogen politicus. In zijn boek verzet Witteveen zich op ingetogen wijze tegen de neoliberale ideologie die de Nederlandse samenleving al vele jaren domineert en die door zowel de rechter als de linkerflank van de politiek is omhelsd. Volgens hem heeft deze ideologie weinig oog voor de wet als een doel op zichzelf, maar gebruikt ze de wet vooral als middel voor het oplossen van maatschappelijke problemen: ‘Zodra iemand de mogelijkheid ontdekt om regels vast te stellen, al dan niet met macht gehandhaafd of door gezag gedragen, doet zich de verleiding voor om de regel als een oplossing van een probleem te zien, als het instrument dat de gemeenschap in handen heeft om het probleem hanteerbaar te maken.’ (450) Witteveen problematiseert deze impuls door te kijken naar de centrale metafoor die eraan ten grondslag ligt: de metafoor van het gereedschap. Hierin worden de wetten van de wetgever vergeleken met het gereedschap van een ambachtsman, zoals een monteur of timmerman.]. (shrink)

The Passenger Name Record (PNR) Directive has introduced a pre-emptive, risk-based approach in the landscape of European databases and information exchange for security purposes. The article contributes to ongoing debates on algorithmic security and data-driven decision-making by fleshing out the specific way in which the EU PNR-based approach to security substantiates core characteristics of algorithmic regulation. The EU PNR framework appropriates data produced in the commercial sector for generating security-related behavioural predictions and does so in a way that gives rise (...) to a paradoxical normativity directly dependent on empirical states. Its ‘securitisation move’ is moreover characterised by an inherent tendence to expand. As a result, the PNR Directive poses challenges for existing check and balance mechanisms and for human autonomy. These challenges could be partially addressed by strengthening ex-post control procedures and independent auditing. Yet in the decision to adopt a risk-based security model, something more fundamental seems to be at stake, namely, the preservation of the idea of human beings as moral agents able to direct and modify their behaviour in accordance with an intelligible, reliable and predictable normative order. (shrink)

The question of how to legitimize authority is generally addressed with reference to Raz’s service conception of authority. Yet, his functional explanation does not concern itself with how authoritative institutions are empowered at the outset. Even though Raz’s monistic account of authority is coupled with input legitimacy and pluralized with Waldron’s analysis of the inter-institutional allocation of authority, it does not assist us in inter-legal situations. As inter-legality is a theory oriented towards finding legitimate ways of legal intersection, this article (...) aims at showing how authorities between different legal orders may engage in a legitimate relationship. In doing so, it benefits from Roughan’s pluralistic and relational account of authority coupled with a conjunctive justification thesis. (shrink)

“Jury Nullification, Verdictal Asymmetry, and the Ultimate Logic of Anarchy” is a critical examination and analysis of the ‘anarchy objection’ to jury nullification, a common argument against informing juries of their nullification power. The anarchy objection posits that jury nullification leads to inconsistent verdicts (verdictal asymmetry) and, as a result, social anarchy and chaos. Through careful analysis, I argue that the anarchy objection is predicated on two flawed premises: first, that jury nullification promotes verdictal asymmetry, and second, that such asymmetry (...) leads to anarchy. Such commitments are, I argue, empirically unsupported and conceptually misguided. Verdictal asymmetry is an intrinsic feature of the common law system, present at nearly every adjudicative stages, and not uniquely linked to jury nullification; yet we certainly do not live in an environment of jural/social anarchy. Finally, I discuss how the principle of treating like cases alike is primarily a procedural constraint, not a mandate for verdictal symmetry. By dismantling the anarchy objection, I aim to contribute to a deeper understanding of the jurisprudence surrounding the jury nullification debate and its role within the legal system. (shrink)

This paper advances a novel hybrid theory addressing a fundamental puzzle in legal philosophy: how legal statements can simultaneously have both cognitive and practical features. Drawing on contemporary developments in metaethics and philosophy of language, we argue that legal statements express both beliefs and desire-like attitudes. My analysis yields three key findings. First, I demonstrate that within any given legal system, the descriptive content of legal statements remains invariant across different contexts of use and assessment – a feature that explains (...) persistent patterns of legal disagreement, retraction and attribution of responsibility for content. Second, I show that the desire-like states expressed by legal statements are uniformly directed at the general property picked out by “It is the law that…” rather than at particular legal norms, regardless of the speaker – thereby preserving their inference-licensing property and evidential function. Third, I identify generalized conversational implicature as the mechanism through which legal statements convey desire-like states explaining their distinctive practical features. This theoretical framework offers a novel solution to the puzzle of legal motivation: rather than positing a necessary conceptual link between legal judgment and motivation, it explains their characteristic connection through the general action-guiding purpose of legal discourse and Gricean conversational principles. (shrink)

On January 27, 2022, the Constitutional Court of Ecuador (the Court) granted judgment in the case 253-20-JH, called “Rights of Nature and Animals as Subjects of Rights, Estrellita Monkey Case,” popularly known as the Estrellita case. 1 The case generated high expectations because the Court selected it for the development of binding jurisprudence. Since its release, the case has received broad public attention due to its ruling and media outlets having announced that Ecuador is the frst country where animals have (...) legal rights. Given the importance of the Estrellita case, an analysis from an animal rights perspective is necessary. First, I will summarize the Rights of Nature under the Ecuadorian Constitution and the history of the Estrellita case. Secondly, I will explain the ruling of the Estrellita case, how the Court recognized individual animals as legal subjects, what rights of wild animals were recognized, the interspecies principle, and the ecological interpretation principle. Thirdly, I will argue why Rights of Nature is not the correct framework for the achievement of rights for animals, mainly because the ecological interpretation principle has the effect of undermining the full realization of those rights. Finally, I will present positive outcomes for animals in Ecuador that derive from the Estrellita case, as the Rights of Nature framework has a symbolic and instrumental value that one can use for the beneft of animals. (shrink)

Given the reality of legal orders collapsing or breaking, this paper argues that a good explanation is needed to understand this phenomenon. It adopts a Hartian account of positivism and considers law as part of a larger set of social facts and orders. The paper analyzes the relationship between evil moral commitments and the law. It concludes by showing that it might be more conducive to analyzing the loss of faith in a legal system as an explanation for its collapse (...) rather than thinking about problematic commitments to evil moral attitudes. (shrink)

Constituent power is an idea with a long tradition in modern political thought but has been largely abandoned since the middle of the twentieth century. Here I offer a new account of constituent power that avoids problems of the classical account, including the paradox of constitutionalism, and clarifies how individuals contribute to creating their shared political order. I argue that constituent power should be understood as an individual power-with: the agential power to constitute a legal order with others. Our individual, (...) banal acts of law-abidingness each partially effect the collective outcome. We generally exercise constituent power unconsciously and automatically, guiding our actions to succeed as defined by law and relying on the legal system to take up our contributions and effectively combine them with others. (shrink)

How do we ensure agents formulating legal statements are not systematically in error? In this paper I assume that the success of legal statements follows from the fact that propositions expressed by legal statements adequately represent legal reality. I argue that the content of legal statements hinges implicetly on the sources of law and methods in which we attribute meaning to these sources. In this regard, I identify the primary obstacle to the success of actions that consist of asserting legal (...) statements as a systematic failure to refer to the proper method of interpretation by the agents formulating these statements. The paper explores several solutions to this challenge, focusing on the solution explaining the success in referring to the proper method of interpretation in virtue of meta-interpretive considerations. Subsequently, the paper discusses a challenge to this solution following from the claim that there are many different theories of meta-interpretation, and there is no fact (neither natural, nor conventional or intentional, anchored in the collective consciousness of society), determining that one of them is more accurate than the other ones. Given all the intricacies, this study focuses on exploring a coherent framework for understanding how different interpretive methods and meta-interpretative theories can be evaluated and applied in legal practice. It seeks to articulate a model that accommodates the diversity of interpretations while striving for a reasoned consensus on how legal texts should be understood and applied. (shrink)

If an asymmetry in time does not arise from the fundamental dynamical laws of physics, it may be found in special boundary conditions. The argument normally goes that since thermodynamic entropy in the past is lower than in the future according to the Second Law of Thermodynamics, then tracing this back to the time around the Big Bang means the universe must have started off in a state of very low thermodynamic entropy: the Thermodynamic Past Hypothesis. In this paper, we (...) consider another boundary condition that plays a similar role, but for the decoherent arrow of time, i.e. the subsystems of the universe are more mixed in the future than in the past. According to what we call the Entanglement Past Hypothesis, the initial quantum state of the universe had very low entanglement entropy. We clarify the content of the Entanglement Past Hypothesis, compare it with the Thermodynamic Past Hypothesis, and identify some challenges and open questions for future research. (shrink)

Laws can be evaluated as better or worse relative to different normative standards. But the standard set by the Rule of Law defines a kind-relative standard of evaluation: features like generality, publicity, and non-retroactivity make the law better as law. This fact about legal evaluation invites a comparison between law and other “goodness-fixing kinds,” where a kind is goodness-fixing if what it is to be a member of the kind fixes a standard for evaluating instances as better or worse. Indeed, (...) for any goodness-fixing kind, K, that sets a standard, S, for evaluating Ks as Ks, we can ask: (1) How does the nature of Ks explain S? (2) Does being a K depend on meeting a minimum threshold of S-relative goodness? In the case of law and its kind-relative standard defined by the Rule-of-Law virtues, these questions lack settled answers. Although Raz (1979, 2019) offers some discussion, I argue that his answers have the surprising upshot of rendering law sui generis relative to other goodness-fixing kinds, and that preserving continuity with other such kinds involves revising the general picture. On the revised picture, law construed as a system of rules is subject to kind-relative evaluation because it is (a) a functional artifact, (b) with an essential function of realizing a limited normative ideal, and (c) its being minimally good at that function—that is, its realization of the relevant normative ideal to some degree—is a condition and ground of law’s existence, since all functional artifacts appear to be subject to such threshold conditions. (shrink)

The ideas that law is (or can be regarded as) a legal system, and that law evolves over time in adaptation to its context, are two of the most widely shared and presupposed ideas in contemporary legal theory. However, even if much interest has been dedicated in legal theory and legal dogmatics to the evolution of specific legal concepts or institutions, as well as legal norms in particular, not so much attention has been dedicated to the evolution of legal systems (...) in themselves. In this chapter, I will try to offer an overview of the evolution of the concept of legal system and critically analyse whether an evolutionary theory of legal systems - i.e., a theory about the evolution of legal systems - can be reconstructed and laid down for the analysis both of the past, the present, and the future of legal systems. (shrink)

Con una metodología analítico-sintética, el propósito del presente artículo es ofrecer un fundamento teórico sobre la legitimidad de los actos y las decisiones morales. Por consiguiente, se resolverá la siguiente cuestión: ¿cuál es la función ética del derecho, en el marco del ejercicio de una conciencia y consciencia construidas por agentes morales? Se concluye que la coacción legítima debe fundarse en la protección universal de toda persona y en el sometimiento a objeciones por parte de los ciudadanos, con el propósito (...) de revisar la legitimidad y legalidad de las normas jurídicas. (shrink)

Legal pluralism refers to the idea that in any one geographical space defined by the conventional boundaries of a nation state, there is more than one law or legal system. This article examines several aspects of legal pluralism focusing on the relationship between the empirical facts of pluralism and its conceptual foundations. Variety of factors produce the perception of legal pluralism, which is reflected in intensified interest in the concept in contemporary scholarship. Legal philosophy and sociological approaches to law often (...) still occupy quite separate scholarly terrains. Legal pluralism has been identified as a fruitful area for constructive engagement between legal philosophy and the sociology of law. This article emphasizes the fact that with the decline of nation states as the locus of political and legal power, it seems inevitable that traditional state-centered legal philosophy must give way to a different paradigm, which recognizes the plurality of law. (shrink)

Theories of social norms frequently define social norms in terms of individuals’ beliefs and preferences, and so afford individual beliefs and preferences conceptual priority over social norms. I argue that this treatment of social norms is unsustainable. Taking Bicchieri’s theory as an exemplar of this approach, I argue, first, that Bicchieri’s framework bears important structural similarities with the command theory of law; and second, that Hart’s arguments against the command theory of law, suitably recast, reveal the fundamental problems with Bicchieri’s (...) framework. I then draw on Hart’s critique to develop and defend an alternative approach, arguing that we should conceive of social norms as the norms internal to a “socially sanctioned representational practice.” This approach makes social norms conceptually independent of individuals’ beliefs and preferences by locating them within social practices that transcend their individual participants, structuring the social landscape even before individuals form their own beliefs and preferences. (shrink)

According to a persistent assumption in legal philosophy, the social rule at the foundation of a legal system (the Rule of Recognition) serves both an epistemic and a duty-imposing function. Thus, some authors have claimed that it would be a formidable problem for legal philosophy to explain how such social rules can impose duties, and some have taken it upon themselves to show how social practices might just do that. However, I argue that this orthodox assumption about the dual function (...) of rule of recognition is ill-founded. Contrary to the orthodox view, we have no good reasons to ascribe more than an epistemic function to the rule of recognition. Accordingly, the norms deriving immediately from the rule of recognition are no different than those entailed by other epistemic, grammatical or syntactic norms. Consequently, accounts of the normativity of law need not explain how social practices like conventions or plans might impose duties on the officials of a legal system. (shrink)

The border-crossing nature of science is well recognised, and has long been a focus of policy-makers with an interest in governing this space. The international aspect of the humanities is less clearly understood, and the extent to which it has been a focus of policy is similarly not well conceptualised. UNESCO’s efforts in this area provide a useful corpus of texts through which international humanities policy can be explored. Drawing on Theodor Adorno’s negative dialectics, this paper considers what UNESCO’s attempts (...) at developing international humanities policy have to say about the ontological status of the humanities, and of policy itself. In setting out an ontology of policy, it generates a concept of ‘world humanities’ as a means of reconstituting the humanities its own specific mode of inquiry and form of knowledge. (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)

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)

The primary aim of this chapter is to show that several missteps made by others in in their thinking about law as an artefact are due to misconceptions about the role of intentions in understanding law as an artefact. I first briefly recap my own contention that law is a genre of institutionalized abstract artefacts (put forth in The Functions of Law (OUP 2016) and subsequent papers), mostly following Searle’s understanding of institutions and Thomasson’s understanding of public artefacts. I highlight (...) the central place that this theory affords law’s functions, without requiring the theorist to say that possession or performance of the function is either necessary or sufficient for inclusion in the class of law. Some of the most common misunderstandings are exemplified in Brian Leiter’s paper ‘Legal Positivism about the Artifact Law’. He thinks that holding an intentionalist view of artefacts commits the theorist to privileging drafters’ intentions when interpreting law. (It doesn’t.) He also has confusions about the differences between artefact tokens and artefact types leading him to a problematically broad understanding of artefacts. Another problem can be seen in thinking that functional understandings of artefacts are vulnerable to the same problems that arise in functional explanations for biological systems. I go on to consider the work of Luka Burazin and Corrado Roversi, addressing worries that making intentionality central to artefacts implies too much conscious thought is required to make one, noting that several theories of intentionality do not require conscious thought in the execution of intentional action. While those who think a central place for intentionality threatens to leave us unable to explain customary law, this can be dealt with by noting the important distinction between customary rules and customary laws (where the latter requires a decision to enlist public aid in redressing violations). I claim that authors’ intentions are communicated requests for the artefacts’ audiences to see the artefacts as members of their putative kinds. Finally, I address the question of whether or not legal systems are themselves artefacts and institutions, given that they may or may not have been intentionally created. An early lawgiver might have created a legal system by accident in the process of handing down the first laws. I raise the possibility that we might want to impute intentionality to necessary by-products of artefact creation, seeing those by-products as artefacts as well. (shrink)

This chapter contains sections titled: Traditional Natural Law Theory Modern Natural Law Theory Conclusion References.

In discussing whether legal systems are necessarily coercive, legal philosophers usually appeal to thought experiments involving angels or other morally driven beings who need no coercion to organise their social lives. Such appeals have invited criticism. Critics have not only challenged the relevance of such thought experiments to our understanding of legal systems; they have also argued that, contrary to the intuitions of most legal philosophers, the ‘man on the Clapham Omnibus’ would not hold that there is law in a (...) society of angels because the view that law is necessarily coercive ‘enjoys widespread support among laypersons’. This is obviously an empirical claim. Critics, however, never systematically polled the ‘man on the Clapham Omnibus’. We boarded that bus. This article discusses findings from five empirical studies on the relationship between law and coercion. (shrink)

法は危機をこえてどう変容するのか!法的議論の分裂、立憲主義の錯綜、正統性のゆらぎ―法が危機にあるいま、従来の支配的見解を根本的に問い、オルタナティヴ理論を提示する。.

In a recent contribution to legal ontology, Kenneth Ehrenberg identifies a puzzle concerning _the basic validity rule_ of legal systems: If formal institutions require a codified foundational constitutive rule, then legal systems cannot be formal institutions, since their foundational constitutive rule is necessarily an uncodified basic validity rule. To solve this puzzle, Ehrenberg suggests taking this rule as ‘a foundational and self-identifying institutional fact’. Here, I challenge his solution and the very existence of this puzzle. By arguing, contra Ehrenberg, that (...) the basic validity rule is not the foundational constitutive rule of a legal system, but only the foundational constitutive rule of legal validity; that its codification in fact contributes towards the institutionalisation of a legal system; and that the true foundational constitutive rule of a legal system is the formal group structure of the higher-constitutional organisations, I submit an alternative account of the institutional nature of legal systems. (shrink)

In ‘What Has Philosophy to Learn from Tort Law?’, Bernard Williams reaffirms J. L. Austin’s suggestion that philosophy might learn from tort law ‘the difference between practical reality and philosophical frivolity’. Yet while Austin regarded tort law as just another repository of time-tested concepts, on a par with common sense as represented by a dictionary, Williams argues that ‘the use of certain ideas in the law does more to show that those ideas have strength than is done by the mere (...) fact that they are part of the currency of common sense’. But what does it mean to show that ideas or concepts ‘have strength’? How does conceptual strength relate to the distinction between practical reality and philosophical frivolity? And what special features of the law are supposed to make it a better test of conceptual strength than common sense? In this chapter, I reconstruct and develop Williams’s answers to these questions. I show why Williams believes that we need to test the concepts forming the currency of common sense against practical reality as embodied by legal practice; I identify seven features of tort law that make it particularly suitable to act as such a test; I distinguish three respects in which concepts can show strength, and unpack Williams’s metaphor of microwave-resistant concepts: concepts capable of holding and presenting material for intense critical scrutiny without succumbing to it themselves; lastly, I show how philosophy can learn to identify systematically weak concepts, and the limits of otherwise valuable concepts, by considering which concepts fail the test. (shrink)

This article, written for the forthcoming Oxford Handbook of American Philosophy, offers an overview of the most important American contributions to legal philosophy - American legal realism, law and economics, various critical schools of jurisprudence, Lon Fuller, and Ronald Dworkin - while speculating on what might be distinctive of American legal philosophy. One obvious recurring theme is a focus on practical application in general, and adjudication (especially constitutional adjudication) in particular.

The idea that legal systems conditionally threaten citizens is taken by most legal and political philosophers as ‘reasonably uncontroversial,’ ‘obvious,’ or as portraying ‘a large part of how law operates.’ This paper clarifies and ultimately rejects this idea: our legal systems, it is argued, rarely address citizens via conditional threats. If correct, the conclusion defended in this paper might force us to re-examine core debates in legal and political philosophy that rely on the assumption that legal systems often threaten citizens: (...) debates about the justification of the state, global justice, and the coerciveness of law. (shrink)

Most legal and political philosophers agree that typical legal systems are coercive. But there is no extant account of what typically makes typical legal systems coercive when they are coercive. This paper presents such an account and compares it with four alternative views. Towards the end I discuss the proposed account’s payoffs. Among other things, I show how it can help us explain what I call ‘comparative judgements’ about coercive legal systems (judgements such as ‘Legal system a is more coercive (...) than legal system b’) and how it can help the development of social scientific inquiries into the coerciveness of our legal systems. (shrink)

Since the last century, determining the content of the law has been one of the main discussions of Jurisprudence. The Hart-Dworkin debate has dominated the discussion: to Hart, only social facts determine the content of the law; to Dworkin, it is necessary also to consider moral facts. There has been substantial progress in the debate in the last decades; nonetheless, it is far from settled. Mark Greenberg's idea about the epistemology of nonbasic domains and the tracking of their metaphysics sheds (...) light on the debate. The thesis of the present essay is that the Hart-Dworkin debate is held at different levels of discussion. Hart aims to answer what are the metaphysical foundations of the law. Dworkin seems to engage in academic activism about what ought to be the metaphysical foundations of the law. I argue that the idea of tracking the epistemic foundations of the law is only consistent with social facts being the determinants of the content of the law. Moral facts could be relevant but only mediated by social facts. (shrink)

In recent years, some prominent legal philosophers have argued both that law (as a legal system) is a certain kind of abstract artifact and that we can elucidate its nature by elucidating its artifactual properties (e.g., authorship, functionality, etc). In this chapter, I present an objection to their arguments and show that law is not an abstract artifact, but rather a composite, concrete entity. I do so by arguing that law is an institutional practice, the purpose of which is for (...) legal organisations to produce legal artifacts (e.g., laws, legal judgements, international treaties, etc) through the performance of legal activities. Based on this, I next provide an ontological analysis of these artifacts by elaborating on the conditions for their creation and maintenance. By distinguishing law as an institutional practice from legal artifacts as institutional objects created by legal organisations, I intend to advance a more precise ontological account of legal phenomena. (shrink)

This book is a collection of early papers. These papers are available on the web. They include 'Fact-Value Confusion Driving Methodological Error in Macroeconomic Theory', 'The Genealogy of Natural Law', and 'The Philosophical Values Inherent in Alberta's Approach to Starting Point Sentences'.

Everyone agrees that law is a constituent of social reality. Law seems to be a system by which conduct is governed and guided. Its usefulness consists, in part, on its ability to govern and guide conduct in its characteristic way. If laws guides the conduct of lay law subjects, then it must be (really) possible for the content of the laws governing their conduct to be known by them under standard social conditions. Moreover, if some degree of efficacy in guiding (...) and governing the conduct of lay law subjects is an existence condition for a legal system, then in existing legal systems enough of the content of directive law is epistemically accessed by enough law subjects so that they can apply it to their situations and correctly determine the act-tokens required of them. In this chapter, I argue that these modest epistemic reflections have important implications for a theory of legal content that have been largely ignored. Holistic theories of legal content, such as Greenberg’s and Dworkin’s, are inconsistent with an adequate account of epistemic access. After demonstrating the same problem in two mainstream non-holistic theories of legal content -- the view that legal content is set entirely by official interpretive conventions, and the view that legal content is set entirely by official intentions – I propose a theory of legal content that meets the epistemic access challenge. On my approach, law is, at its core, centered upon the understandings of law subjects. (This view is meant to exempt constitutional provisions.) More precisely, the legal content of statutes and judicial decisions is built around, and preserves, a core of understandings and meaning-assignments that is the province of anyone with sufficient linguistic ability and relevant socialization. The details of this view are, roughly: (1) in the case of judicial decisions in a common law system, the social salience of the example the decision sets concerning behavior sets the default legal content; (2) in the case of statutory directives, the set of socially salient applications (behavior in situations) sets the default legal content. I say `default’ because my account of legal content is a two-stage account beginning with the default content and permitting a second stage in which considerations from other sources can operate on the default. Yet if a certain amount of efficacy in guiding lay law subjects’ behavior is a requirement for the existence of a legal system, there must be a core of legal content undistorted from its default social salience by a second stage operation. There is and must be a `law of the street’. -/- . (shrink)

A New Introduction to Jurisprudence takes one of the central problems of law and jurisprudence as its point of departure: what is the law? Adopting an intermediate position between legal positivism and natural law, this book reflects on the concept of 'liberal democracy' or 'constitutional democracy'. In five chapters the book analyses: the idea of higher law, liberal democracy as a legitimate model for the state, the separation of church and state or secularism as essential for the democratic state, the (...) universality of higher law principles, the history of modern political thought. This interdisciplinary approach to jurisprudence is relevant for legal scholars, philosophers, political theorists, public intellectuals, historians, and politicians. (shrink)

This book brings the insights of theatre theory to law, legal interpretation and the jurisprudential to reshape law as a practice of response and responsibility. Confronting a Baconian antitheatrical legality embedded in its jurisprudences and interpretative practices, the book turns to theatre theory and practice to ground a theatrical jurisprudence, taking its cues from Han-Thies ¿Lehmann¿s conception of the post-dramatic theatre and the early work of theatre visionary Jerzy Grotowski. It asks law to move beyond an imagined ideal grounded in (...) Aristotelian drama and tragedy, and turns to the formation of the legal interpreter ¿- lawyer, judge, jurisprudent - as fundamental to understanding what¿s ¿noticed¿ or not noticed in law. We ¿notice¿ most easily through that which is written into the ¿body of the legal interpreter, in a way that can¿t be replicated through law¿s standard practices of thinking and reasoning. Without more, thinking and reasoning are the epitome of antitheatricality legality; a set of theatrical antonyms, including transgression and instinct, offer instead a set of possibilities through which to reconceive assumptions and foundational concepts etched into the legal imaginary. And by turning to the critical dramaturgy, the book reveals that the liveliness that sits behind theatrical jurisprudence isn¿t a new concept in law at all, but has a long pedigree and lineage that had been lost and hidden. Theatrical jurisprudence, which demands an awareness of self and beyond self, grounds a responsiveness that can¿t be found within doctrine, principle, or the technocratic, but also challenges us to notice what it is we think we know as well as what we know of lives that aren¿t our own. The book will be of interest to scholars and students in the field of jurisprudence, legal theory, theatre and performance studies, cultural studies and philosophy. (shrink)

This collection of essays explores the different ways the insights from complexity theory can be applied to law. Complexity theory - a variant of systems theory - views law as an emergent, complex, self-organising system comprised of an interactive network of actors and systems that operate with no overall guiding hand, giving rise to complex, collective behaviour in law communications and actions. Addressing such issues as the unpredictability of legal systems, the ability of legal systems to adapt to changes in (...) society, the importance of context, and the nature of law, the essays look to the implications of a complexity theory analysis for the study of public policy and administrative law, international law and human rights, regulatory practices in business and finance, and the practice of law and legal ethics. These are areas where law, which craves certainty, encounters unending, irresolvable complexity. This collection shows the many ways complexity theory thinking can reshape and clarify our understanding of the various problems relating to the theory and practice of law. (shrink)

What is law? What is the source of law? What is the law for? How does law differ from other norms or codes of conduct? What is the difference between law and morality? Who is obligated to follow the law and why? What is the difference between moral and legal obligation? This book addresses these foundational questions about the law in general, and seeks to reorient our thoughts to the specific nature of law in India, the India of today, and (...) the possible India of the future. This volume: covers relevant foundational elements, concepts and questions of the discipline; brings the uniqueness of Indian Philosophy of Law to the fore; critically analyzes the major theories of jurisprudence; examines legal debates on secularism, rationality, religion, rights and caste politics; and presents useful cases and examples, including free speech, equality and reservation, queer law, rape and security, and the ethics of organ donation. Lucid and accessible, the book will be indispensable to students, teachers and scholars of law, philosophy, politics as well as philosophy of law, sociology of law, legal theory and jurisprudence. (shrink)

This book presents a unified set of arguments about the nature of jurisprudence and its relation to the jurist's role. It explores contemporary challenges that create a need for social scientific perspectives in jurisprudence, and it shows how sociological resources can and should be used in considering juristic issues. Its overall aim is to redefine the concept of sociological jurisprudence and outline a new agenda for this. Supporting this agenda, the book elaborates a distinctive juristic perspective that recognises law's diversity (...) of cultural meanings, its extending transnational reach, its responsibilities to reflect popular aspirations for justice and security, and its integrative tasks as a general resource of regulation for society as a whole and for the individuals who interact under law's protection. Drawing on and extending the author's previous work, the book will be essential reading for students, researchers and academics working in jurisprudence, law and society, socio-legal studies, sociology of law, and comparative legal studies. (shrink)

This book addresses the problem of 'animal life' in terms that go beyond the usual extension of liberal rights to animals. The discourse of animal rights is one that increasingly occupies the political, ethical and intellectual terrain of modern society. But, although the question of the status of animals holds an important place within a range of civil, political and technological disciplines, the issue of rights in relation to animals usually rehearses the familiar perspectives of legal, moral and humanist philosophy. (...) 'Animal law' is fast becoming a topic of significant contemporary interest and discussion. This burgeoning interest has not, however, been matched by renewed inquiry into the jurisprudential frames and methods for the treatment of animals in law, nor the philosophical issue of the 'human' and the 'animal' that lies at law's foundation. Responding to this interest, Law and the Question of the Animal: A Critical Jurisprudence brings together leading and emerging critical legal theorists to address the question of animality in relation to law's foundations, practices and traditions of thought. In so doing, it engages a surprisingly underdeveloped aspect of the moral philosophies of animal rights, namely their juridical register and existence. How does 'animal law' alter our juridical image of personality or personhood? How do the technologies of law intersect with the technologies that invent, create and manage animal life? And how might the ethical, ontological and ceremonial relation between humans and animals be linked to a common source or experience of law? (shrink)

Critical review of "The Philosophy of Legal Change," edited by Maciej Chmieliński and Michał Rupniewski, the first volume on its subject matter, with some general remarks on the philosophical methodology of conceptualising legal change.

This chapter interrogates the human in human rights. It first takes issue with the common assumption that to be human just is to be a member of the species homo sapiens, and that this suffices for possession of human rights. Such an assumption is problematic because it presupposes a unique ‘essence’ possessed by all and only human beings, which in turn functions to exclude certain individuals from the realm of the human, and presents a culturally-specific vision of humanity as if (...) it were universal. As an alternative, this chapter develops a conception of the human as a social construct. Analogous to the sex/gender distinction common to feminist theory, it posits a homo sapiens/human distinction, whereby the human refers to the network of social norms, political status, privileges and burdens that are conferred on people because they are (taken to be) members of the species homo sapiens. (shrink)

Explores indigenous intellectual culture and its relationship to, and within, the dominant Euro-American culture. This book also contends that indigenous intellectuals need to engage the legal and political discourses of the state, respecting both indigenous philosophies and Western European intellectual traditions.

While the rule of law is surely a very important good, the familiar discussions found in the literature lead many to conclude that it is either a relatively trivial political ideal, or else a redundant one. What is needed is a new and persuasive defense of the rule of law that properly reflects its great significance for human well being. An important step towards building such an argument is to question a widely-shared but often unnoticed assumption that the rule of (...) law should be understood as a virtue of legal systems. The path is then cleared for a republican argument built on two theses: first, the thought that an ideal society would be one in which no one is the master of anyone else, and second, the thought that our freedom from domination is not natural or pre-institutional. (shrink)