In this essay I argue a particular legal philosophy is committed to a partial and closed view of how philosophical work is conceived. This view produces a legal philosophy that lacks the ability to guide substantive discussions. I argue that methodological legal positivism is not a good way to articulate the development of legal philosophy. Then, I argue that we need to consider the place that legal philosophy should occupy in the (...) global intellectual landscape. In addition, I develop my argument by distinguishing the work of legal-philosophy jurists from that of legal-philosophy philosophers and philosophy philosophers. As a coda, I sketch the criteria in order to conceive analytical legal philosophy from a new perspective.Resumen:En este ensayo defiendo que cierta forma de hacer filosofía jurídica está comprometida con una visión cerrada y parcial de concebir el quehacer filosófico. Esta visión genera una filosofía jurídica intelectualmente pobre y carente de capacidad para guiar debates sustantivos. Defiendo que el positivismo jurídico metodológico no es una buena manera de articular el desarrollo de la filosofía jurídica. Sostengo, además, que es preciso re- flexionar sobre el lugar que debería ocupar la filosofía jurídica en un panorama intelectual global. Para desarrollar mis argumentos, distingo el trabajo de los filósofos del derecho juristas respecto del de los filósofos del derecho-filósofos y los filósofos-filósofos. A modo de coda, bosquejo cuáles serían los criterios que hay que revisar para concebir la filosofía jurídica analítica desde una nueva perspectiva. (shrink)

This short article was written for a collection on American legal philosophy today. It gives a brief overview of analytical legal philosophy, and speculates on why this theoretical approach has been consistently misunderstood in the United States, from the time of the legal realists until today.

In this essay I argue that in some sense legal philosophy, at least as the term is now understood among analytic jurisprudents in the Anglophone world, is to a large extent a creation of H. L. A. Hart’s work. It is with him that the search for the concept or the nature of law was one established as an independent object of inquiry, that consciously tried to avoid moral or political questions. In framing the province of jurisprudence in (...) this way Hart not only departed from the work of Thomas Hobbes and Jeremy Bentham, whose political commitments are clear, but also from the seemingly much closer enterprise of John Austin. After demonstrating this difference between Austin’s enterprise and Hart’s, I criticize the direction legal philosophy has taken following Hart’s lead.Resumen:En este ensayo se plantea la idea de que en cierto modo la filosofía del derecho —al menos en la forma en que es entendida entre los filósofos analíticos del mundo angloparlante— es en gran medida una invención de H. L. A. Hart. Con la obra de Hart, en efecto, la búsqueda del concepto o naturaleza del derecho, se ha consolidado como un objeto de investigación independiente, que conscientemente pretende deslindarse de las cuestiones políticas o morales. Al definir el campo de estudio de la filosofía del derecho en este sentido, Hart no sólo se aparta del trabajo de Thomas Hobbes y de Jeremy Bentham, cuyos compromisos políticos son evidentes, sino también del proyecto aparentemente más cercano de John Austin. Después de señalar la diferencia entre los proyectos de Austin y de Hart, el autor pone en cuestión la dirección que ha tomado la filosofía del derecho al ser encabezada por Hart. (shrink)

Appeals to metaphysics have lately come to ascendancy in analytic legal philosophy. Over the last 20 years or so, a new discourse framework has emerged in analytic legal metaphysics that focusses on the explanatory question of how law is made. By any measure the most influential refinement of this question is to be found in Mark Greenberg's seminal 2004 article How Facts Make Law. This essay tries to exert some pressure on this familiar question by posing the (...) categorial question of what type of entities different theories of law take up as ontologically basic for their inquiry. The essay singles out four exemplary avenues for answering the categorial question. Introducing a categorial instead of explanatory lens is an overdue step in the process of updating the metaphysical toolbox of contemporary analytic theories of law. The categorial question of what kind of entity law is ismeant to complement the explanatory question of how law is made in a way that makes disagreements about the metaphysical-explanatory demands of theories of law more tractable or amenable to principled adjudication. (shrink)

The article devoted to legal and political institutions comprehension from analytical philosophical tradition standpoint. The author of the article made an attempt to define political institutions through the concepts introduced in the considered legal tradition. This vision of problem solution is justified by the fact that analytical philosophy is guided by the logical analysis of the essence of the subject, indicating interconnection and interdependence of legal and political institutions that cannot be perceived today in (...) isolation from each other. Through an appeal to the classics of tradition, it is determined that in analytical philosophy, the problematic field of the essence of legal and political reality is concluded in application of legal acts. It is revealed that by means of an analytical method, it is possible to single out the real content of right and policy. As a result, the author comes to the conclusion that it is necessary to analyze language that has contextual relevance to reality because cognition through an instrumental relationship to linguistic reality makes it possible to gain its expanded understanding and overcome contradictions. (shrink)

Eugenio Bulygin is a distinguished representative of legal science and legal philosophy as they are known on the European continent - no accident, given the role of the civil law tradition in his home country, Argentina. Over the past half-century, Bulygin has engaged virtually all major legal philosophers in the English-speaking countries, including H.L.A. Hart, Ronald Dworkin, and Joseph Raz. Bulygin's essays, several written together with his eminent colleague and close friend Carlos E. Alchourrón, reflect the (...) genre familiar from Alf Ross's On Law and Justice, Hans Kelsen's Pure Theory of Law, and Georg Henrik von Wright's Norm and Action. Bulygin's wide-ranging interests include most of the topics found under the rubric of analytical jurisprudence - interpretation and judicial reasoning, validity and efficacy of law, legal positivism and the problem of normativity, completeness and consistency of the legal system, the nature of legal norms, and the role of deontic logic in the law. The reader will take delight in the often agreeably unorthodox character of Bulygin's views and in his hard-hitting arguments in defence of them. He challenges the received opinion on gaps in the law, on legal efficacy, on permissory norms, and on the criteria for legal validity. Bulygin's essays have been wellnigh inaccessible in the past, appearing in specialized journals, often in Spanish or German. They are now available for the first time in an English-language collection. (shrink)

The article presents an analysis of K.A. Rodin’s argument that after publishing of Peter Winch’s book “The Idea of Social Science” (1958) the discussions of rule-following problem concerning to social epistemology and the methodology of social studies have not had tangible results. It is shown by the example of modern legal studies that this conclusion is not valid. On the contrary, Wittgenstein’s problem of rule-following and the very idea of rule-shaped activity have proved to have a great importance for (...) an analytical legal philosophy and turned into an independent subject of study. (shrink)

The book deals with post-analytical philosophy of law, which departs from the traditional view which considers philosophical cognition as a sense-making and optimizing activity. It seeks to deconstruct the analytical, both philosophical and legal, narrative to expose it as a collection of schemes which oversimplify the legal and political reality.

The article seeks to instantiate the distinctive features and basic research strategies in legal ontology as they are presented in the early works by the famous Oxford philosopher of law Herbert Hart, published before his major book The Concept of Law. The author tries to isolate the most salient aspects of the analytical legal tradition applicable to Russian legal theory, which can bridge the existing gap between these approaches despite considerable difference both in their background and (...) methodology. (shrink)

This edited collection covers Friedrich Waismann's most influential contributions to twentieth-century philosophy of language: his concepts of open texture and language strata, his early criticism of verificationism and the analytic-synthetic distinction, as well as their significance for experimental and legal philosophy. -/- In addition, Waismann's original papers in ethics, metaphysics, epistemology and the philosophy of mathematics are here evaluated. They introduce Waismann's theory of action along with his groundbreaking work on fiction, proper names and Kafka's Trial. (...) -/- Waismann is known as the voice of Ludwig Wittgenstein in the Vienna Circle. At the same time we find in his works a determined critic of logical positivism and ordinary language philosophy, who anticipated much later developments in the analytic tradition and devised his very own vision for its future. (shrink)

This volume is a vital resource for anyone interested in analytic philosophy.

Because gender norms shape the content and application of the law, feminist scholarship has a lot to contribute to the study of law. Gender is also relevant to several problems in normative jurisprudence, and to some problems in special jurisprudence (the study of concepts in the law). But gender has no relevance to general jurisprudence for there is no sense in which the concept of law is ‘gendered’, and no answer to leading problems in general jurisprudence depends on any thesis (...) about gender. Yet some feminist scholars, including prominently Joanne Conaghan, argue that gender is pervasively relevant to jurisprudence, though its relevance has been screened out by methodological errors that characterize what she calls ‘the analytical jurisprudential mind’. I argue that this is incorrect, by examining the relationship between gender and law, the relationship between sex and gender, and the place of sex in the legal concept of marriage. The methodological charges against ‘the analytical jurisprudential mind’ prove unfounded. I also suggest that hostility to analytical methods is likely to be damaging to feminist legal theory, and urge feminist scholars to look again at the resources of analytic legal philosophy. (shrink)

In this book, Douglas Walton examines the philosophical nature of two issues currently associated with medical ethics. In order to work towards an analysis of the concept of death that could function as a target towards which the medical criteria of death could be directed, he proposes the foundations for a theory free of logical contradictions, paradoxes, and other perplexities. This is the "superlimiting theory" which introduces the notion of a "possible person." The connection of these philosophical ideas with medico- (...) class='Hi'>legal concerns like brain death and the Harvard criteria is discussed. Professor Walton then goes on to examine the difference between killing and letting die. Through a close study of the logic of action sentences, he develops a model that is discussed in the light of the ethical and jurisprudential realities of medical ethics to see if the distinction between bringing something about and letting something happen is one that makes a moral difference in the evaluation of actions. Numerous problematic conceptual snags are dealt with, and the author consistently supports the conceptual clarity and respectability of the distinction. Other relevant discriminations of an action-theoretic sort, such as that between "direct" and "indirect" euthanasia, are studied, and the concluding chapter applies the conceptual analysis to a philosophical discussion of attitudes towards death, asking, "Is it rational to fear death?". (shrink)

This book proves to be an excellent guide through the labyrinth of law. Its crucial point is legal order viewed from the perspective of a situated "We". Jurisprudence appears as an implicit sort of thinking, embedded in moral, political, epistemological, and linguistic contexts. Numerous example cases lead us from everyday issues to the abysses of violence. Anyone who practices or studies law will highly profit from reading this book. One sees how law functions by being more than mere law. (...) Bernhard Waldenfels, Ruhr-University Bochum, Germany Legal Thought and Philosophy clarifies background questions in legal research projects, such as the relationship between law and justice, law and politics, law and knowledge, facts and norms, normativity and validity, constituent and constitutional power, and rule and context. It provides advanced students in law and philosophy with an account of legal thinking that combines analytical and phenomenological insights. From a conception of justice as principled political self-restraint, the book explains why there are moral reasons to separate law from morality conceptually and in what sense a legal order is positive--that is, set by authority and bound up with history. The book explores the conditions under which law may become an object of knowledge and theorising, before finally discussing how these features come together in law as rule-following by citizens, officials, judges, and legislators alike. Addressing advanced students in law and philosophy, this key book: bridges separate traditions in legal philosophy (in particular analytical philosophy and phenomenology), develops a view of law as an institution of authority from a conception of justice in the socio-political relationship between we and the others, presents a systematic account of normativity and validity, explains in what sense law is doing things with rules. (shrink)

Analytical jurisprudence has been mostly silent on the role of precedent in legal adjudication.

Deconstruction both by its friends and enemies has come to be associated with a set of cliches that completely misunderstands its ethical aspiration. It is particularly within the field of law that we can see the ethical force of deconstruction, and also illuminate its concrete and practical importance. In The Philosophy of the Limit Drucilla Cornell examines the relationship of deconstruction to questions of ethics, justice and legal interpretation. She argues that renaming deconstruction "the philosophy of the (...) limit" will allow us to be more precise about what deconstruction actually is philosophically and hence to articulate more clearly its significance for law. Cornell explores the ethical and juridical significance of the so-called postmodern rebellion against metaphysics. A shared ethical rebellion links philosophers as different as Theodor Adorno, Jacques Derrida, Jacques Lacan, and Emmanuel Levinas. Together they present a new ethical configuration, new in its difference from both the critical social theory of J$u$urgen Habermas and the analytic jurisprudence of Nagel and Rawls. A key aspect of this newness is the centrality given to the relationship between questions of ethics and sexual difference. Cornell argues that the appeal of Lacan's analysis to feminists is that it helps to explain the profound hold the gender hierarchy has over Western culture, including its theories of political transformation. Under a Lacanian analysis the law of gender identity will be replicated in the laws of an existing legal system. This means that we cannot hope to sustain legal reforms unless the gender hierarchy is challenged. Cornell examines Derrida's position on the significance of the gender hierarchy in philosophy and explores its ethical and political importance. Derrida's intervention against legal positivism has important implications for the legal reforms necessary to protect marginalized groups. His emphasis on the limit, she argues, is crucial to thosewhose well-being and very lives may depend on legal transformation, women and homosexuals, for example. In an important contribution to legal philosophy, Cornell explores the affinities of Derrida's writings with recent liberal analytic jurisprudence. She also explores the differences. Comparing Rawls's and Derrida's accounts of justice, she argues that Derrida gives greater attention to the necessary utopian moment in his insistence on maintaining the divide between law, established norms, and justice. Cornell's focus on the importance of the limit and the centrality of the gender hierarchy allows her to offer a view of jurisprudence different from both critical social theory and analytic jurisprudence. As we watch the long-fought-for civil rights of women systematically overturned, we have reason to think about how the connections she makes shed light on an underlying truth of our social, political, and legal reality. (shrink)

The contents include chapters covering: theory of command; theory of sovereignty; evidence of law; theory of legal duty theory of legal sanctions; theory of the legal object; theory of imputation; theory of legal rights; rights related to ownership; foreign rights; codification of the law; & others.

Is the field of general jurisprudence catching up – or is it simply getting distracted? Whereas legal philosophy has always featured claims about the content of the folk concept of law, it is only in the last few years that it has begun to self-consciously test those claims. Kenneth Himma’s recent review of this effort in Jurisprudence is a milestone: it reveals X-Jur as having progressed to the point of attracting broader philosophical attention, and it challenges X-Jur’s practitioners (...) to persuade those not already convinced of the potential of alternatives to the analytic method. I take Himma’s critique as an opportunity to sketch some preliminaries for a theory of experimental jurisprudence, considering, in turn, the nature of jurisprudential truth, the role of expertise, and how empirical data might best be interpreted to help adjudicate claims about the content of the folk concept. I conclude with a brief discussion of the field’s future. (shrink)

In this book, Douglas Walton examines the philosophical nature of two issues currently associated with medical ethics. In order to work towards an analysis of the concept of death that could function as a target towards which the medical criteria of death could be directed, he proposes the foundations for a theory free of logical contradictions, paradoxes, and other perplexities. This is the "superlimiting theory" which introduces the notion of a "possible person." The connection of these philosophical ideas with medico- (...) class='Hi'>legal concerns like brain death and the Harvard criteria is discussed. Professor Walton then goes on to examine the difference between killing and letting die. Through a close study of the logic of action sentences, he develops a model that is discussed in the light of the ethical and jurisprudential realities of medical ethics to see if the distinction between bringing something about and letting something happen is one that makes a moral difference in the evaluation of actions. Numerous problematic conceptual snags are dealt with, and the author consistently supports the conceptual clarity and respectability of the distinction. Other relevant discriminations of an action-theoretic sort, such as that between "direct" and "indirect" euthanasia, are studied, and the concluding chapter applies the conceptual analysis to a philosophical discussion of attitudes towards death, asking, "Is it rational to fear death?". (shrink)

Is the field of general jurisprudence catching up – or is it simply getting distracted? Whereas legal philosophy has always featured claims about the content of the folk concept of law, it is only in the last few years that it has begun to self-consciously test those claims. Kenneth Himma’s recent review of this effort in Jurisprudence is a milestone: it reveals X-Jur as having progressed to the point of attracting broader philosophical attention, and it challenges X-Jur’s practitioners (...) to persuade those not already convinced of the potential of alternatives to the analytic method. I take Himma’s critique as an opportunity to sketch some preliminaries for a theory of experimental jurisprudence, considering, in turn, the nature of jurisprudential truth, the role of expertise, and how empirical data might best be interpreted to help adjudicate claims about the content of the folk concept. I conclude with a brief discussion of the field’s future. (shrink)

Predictive judicial analytics holds the promise of increasing efficiency and fairness of law. Judicial analytics can assess extra-legal factors that influence decisions. Behavioral anomalies in judicial decision-making offer an intuitive understanding of feature relevance, which can then be used for debiasing the law. A conceptual distinction between inter-judge disparities in predictions and inter-judge disparities in prediction accuracy suggests another normatively relevant criterion with regards to fairness. Predictive analytics can also be used in the first step of causal inference, where (...) the features employed in the first step are exogenous to the case. Machine learning thus offers an approach to assess bias in the law and evaluate theories about the potential consequences of legal change. (shrink)

The challenge of calling "balls and strikes": the curious case of Gould v. Roberts -- To flatlaw and beyond : appreciating multiple analytic dimensions -- The traditions of legal reasoning : developing analytical legitimacy despite substantive disagreement -- Rethinking the analytic tradition : text, context, hypertext, and subtext -- The challenge of text : the relationship of "is," "ought," and focal meaning -- The challenge of context : what "is" means in both facts and law -- The challenge (...) of hypertext : the struggle within "ought" of multiple perspectives on fundamental values -- The challenge of subtext : considering the judiciary's role in the "game" of legal life -- The right (or rights?) to privacy (or privacies?) -- The never-ending disagreements over statutory interpretation : the primacy of subtext. (shrink)

This paper examines Guillermo Lariguet’s paper ‘Analytical Legal Philosophy Reloaded,’ offering two interpretations of the ‘reloading’ project. The paper argues that a naturalistic reading of the project is unmotivated and that a more promising way of interpreting Lariguet’s proposal is in terms of a rather ambitious methodological agenda, which is analogous to the broadly encompassing methodological criticism envisioned by Jürgen Habermas in some of his work, which centers on communicative action. This ‘reasonableness’ proposal, as I shall call (...) it, is a plea to invigorate and enrich not just legal philosophy, but philosophical discourse in general, and shows that the reloading of legal philosophy cannot be understood as a project that originates only from within legal philosophy.Resumen:En este trabajo se examina el ensayo de Guillermo Lariguet intitulado “Analytical Legal Philosophy Reloaded”, y se ofrecen dos interpretaciones de su proyecto de “renovar” la filosofía analítica del derecho. En primer lugar se sostiene que una lectura naturalista del proyecto es injustificada, y que la vía más prometedora de interpretar su propuesta es en términos una agenda metodológica más ambiciosa, la cual es análoga al criticismo metodológico exhaustivo imaginado por Jürgen Habermas en algunos de sus trabajos, en los que centra su acción comunicativa. La “razonabilidad” de la propuesta, como la denomino, es una invitación a revitalizar y enriquecer no sólo la filosofía jurídica, sino el discurso filosófico en general; además muestra que la “renovación” de la filosofía del derecho no puede ser entendida como un proyecto que se origine única- mente desde el interior de la filosofía jurídica. (shrink)

Discover how philosophy is essential to the creation, development, application and study of international lawNew for this editionUpdated to cover recent developments in international law, including the 2008 world financial crisis and its effect on international economic and financial law, and the Obama administrations approach to international law in the war on terror Each chapter includes suggestions for further reading, including the most current sources from 2016Anthony Carty tracks the development of the foundations of the philosophies of international law, (...) covering the natural, analytical, positivist, realist and postmodern legal traditions. You'll learn how these approaches were first conceived and how they shape the network of relationships between the signatories of international law.Key featuresExplores four areas: contemporary uncertainties; personality in international law; the existence of states and the use of force; and international economic/financial lawThe historical introduction gives you an overview of the development of the philosophy of international law, from late-scholastic natural law to the gradual dominance of legal positivism, and to the renewed importance of natural law theory in legal philosophy todayRevises the agenda for international lawyers: from internal concerns with the discipline itself outwards to the challenges of international society. (shrink)

The first two volumes of the collection are devoted primarily to analytical legal theory--in particular, theories about the nature of law. This is the idea of legal philosophy most familiar to jurisprudential students in the English-speaking world, and many of the civil-law countries. The last two volumes sample schools and theorists who mostly come from outside the analytical tradition, and who are, in one sense or another, critical theorists--theorists more interested in offering systematic critiques of (...) law or general prescriptions. The four volumes of the collection are divided into six parts. Part one brings together key work on the methodology of analytical philosophy and Part two collects the most important scholarship on forms of legal positivism, including material in the Austin-Hart tradition, 'inclusive vs. exclusive legal positivism' and Kelsenian legal positivism. Part three ('Critics of Legal Positivism') gathers material in the natural-law tradition; the work and influence of Lon Fuller and Ronald Dworkin are also fully explored here. Parts four to six are an assembly of the best and most important thinking by and about normative and critical theorists working outside the analytical tradition. Part four gathers material under the rubric of legal realism, exploring both the American and Scandinavian schools as well as their predecessors. Part five examines one of the most influential movements in modern legal theory and legal practice: known as 'law and economics' or the 'economic analysis of law', this approach has come to dominate American scholarship, and its role is growing in other countries too. Finally, part six makes available key research on a variety of critical theories of law that have grown up around systematic critiques of Western legal systems. Included here is work by the American legal realists, as well as work by feminists and scholars pursuing critical race theory. The intersection of law and literature is also examined, as are other approaches to law and legal theory: Habermas's 'proceduralist paradigm'; the concept of 'autopoiesis'; and the work of Rorty and Fish. This Routledge Major Work illustrates the many ways in which philosophical methods and theories have been used to explore aspects of law and legal practice, and with a comprehensive introduction, newly written by the editor, which places the collected material in its historical and intellectual context, Philosophy of Law is an essential collection destined to be valued by scholars and students as a vital research resource."--Publisher's website. (shrink)

The most influential theory of law in current analytic legal philosophy is legal positivism, which generally understands law to be a kind of institution. The most influential theory of institutions in current analytic social philosophy is that of John Searle. One would hope that the two theories are compatible, and in many ways they certainly are. But one incompatibility that still needs ironing out involves the relation of the social rule that undergirds the validity of any (...) legal system (H.L.A. Hart's rule of recognition) to Searle's notion of codification: the idea that institutions need official declarations of their constitutive rules in order to enjoy the full benefits of institutions. The incompatibility arises from the fact that, in order to do its institutional work, the basic validity rule must be codified in Searle's sense—yet, given the particular role it has in legal positivism, it may be impossible to codify in the Searlean sense. In this paper I develop the incompatibility in detail, consider and reject consigning the basic validity rule to Searle's “Background” capacities that support institutional facts, and conclude that the best route to eliminating it while doing a minimum of damage to the two theories is to make a slight emendation to Searle's theory of institutions. (shrink)

The article seeks to instantiate the distinctive features and basic research strategies in legal ontology as they are presented in the early works by the famous Oxford philosopher of law Herbert Hart, published before his major book The Concept of Law. The author tries to isolate the most salient aspects of the analytical legal tradition applicable to Russian legal theory, which can bridge the existing gap between these approaches despite considerable difference both in their background and (...) methodology. (shrink)

The article suggests a reading of the 1st edition of H. L. A. Hart, The Concept of Law (1961) which involves bringing to the fore the elements of moral prescription which accompany the descriptive/explanatory intent which Hart himself explicitly espouses. Thus, the functionalist account of the emergence of secondary rules in complex societies draws on the importance of social benefits, relating to justice and efficiency, benefits which Hart endorses. Consideration is then given to how the posthumous Postscript in the 2nd (...) edition of The Concept of Law (1994) might be rewritten to take into account responses to Dworkin other than those adopted by Hart in the Postscript. The alternative of a tentative form of prescriptive ‘hard’ legal positivism would better preserve the prescriptive ingredients evident in the 1st edition and assist in the regeneration of contemporary analytic legal philosophy within the Hartian traditionResumen:Este artículo propone una lectura de la primera edición de El concepto de derecho (1961), de H. L. A. Hart, en la cual se recuperan los elementos de prescripción moral que acompañan a la tesis descriptiva/explicativa que Hart explícitamente defendió. De tal modo, la tesis funcionalista del surgimiento de normas secundarias en sociedades complejas depende de la importancia de los beneficios sociales, relacionados con la justicia y la eficiencia, los cuales Hart suscribe. Después se llama la atención sobre la forma en que el Post Scriptum a la segunda edición de El concepto de derecho (1994), publicado póstumamente, podría ser reescrito para tomar en cuenta respuestas a Dworkin distintas a las que ofreció el propio Hart en su Post Scriptum. La alternativa de una forma tentativa de un positivismo jurídico prescriptivo “duro” conservaría de mucho mejor manera los ingredientes prescriptivos que son tan evidentes en la 1a edición, y contribuiría a la regeneración de una filosofía del derecho analítica contemporánea dentro de la tradición hartiana. (shrink)

The article reconstructs the premises of the reception of analytic philosophy in jurisprudence and shows that the development of a method for clarifying the meanings of legal concepts is not least connected with the problem of legitimizing law enforcement. The article analyzes H.L.A. Hart’s approach to the problem of correlation between the “letter” and “spirit” of the law in the process of interpreting legal norms. The article argues that the process of interpretation is determined teleologically. In its (...) limit, the interpretation of legal norms presupposes the re-creation of the desired image of society, the reconstruction of such social ontology that is most consistent with the ideal of achieving social welfare. The article examines the collision of the “ideal of order” and the “ideal of justice” as two regulations of law enforcement. The author believes that the interpretation of this collision within the analytical tradition was characterized by a gradual movement from the ideal of “mechanical” law enforcement, which minimizes the creative role of the interpreter, to the ideal of flexible interpretation focused on achieving legal goals in a changing environment. It is noted that, according to analytic approach, a theoretical solution to this conflict was proposed due to the development of the ideas of an “open texture” of law. The author demonstrates that the development of the analytic tradition in jurisprudence has shown that the criticism of language and the interpretation of meanings are not technical tasks, but it presupposes the construction of a metaphysics of law. In this regard, the author concludes: the development of the ideas of the analytic tradition in jurisprudence demonstrates that the thesis about the absence of a positive program in analytic philosophy, put forward in the first article of the discussion, can be challenged. (shrink)

This paper focuses on some issues where the process of convergence between analytical and hermeneutic perspectives, with respect to their general philosophical grounds, mainly turns out to be clear. On the analytical side, the overcoming of logical Neopositivism and radical formalism and the rejection of the atomistic theory of reference by holistic theories of meaning have been the core shifts. On the side of the continental philosophical tradition, the main theoretical change lies in replacing the centrality of the (...) subject with the centrality of language, with its links to the dimension of intersubjectivity. Furthermore, the importance given to concepts such as action and intention, mainly due to the Wittgensteinian connection between language and forms of life, has led to recognising the active role of the subject in the world and the ability of language to be a means for doing things and not just a system of signs representing the world. Such a convergence, though it has not yet been reached, seems to be particularly fertile in the legal domain. Here, for example, some outcomes of speech acts theory fit the hermeneutic view of law. (shrink)

Modern legal theory contains a wide range of approaches and topics: from economic analysis of law to feminist legal theory to traditional analytical legal philosophy to a range of theories about justice. This healthy variety of jurisprudential work has created a problem: students and theorists working in one tradition may have difficulty understanding the concepts and terminology of a different tradition. This book works to make terminology and ways of thinking accessible. This dictionary covers topics (...) from 'the autonomy of law' to the 'will theory of rights', from 'autopoiesis' to 'wealth maximization', and from 'John Austin' to 'Ludwig Wittgenstein'. The most important concepts and ideas are presented in a simple dictionary format. There are also many longer entries, where the initial definition gives an accessible explanation, but the entry goes on to give more detailed information about the history of an idea and the debates currently surrounding it. (shrink)

For the first time, full coverage of the intersections of philosophy and law From articles centering on the detailed and doctrinal exposition of the law to those which reside almost wholly within the realm of philosophical ethics, this volume affords comprehensive treatment to both sides of the philosophicolegal equation. Systematic and sustained coverage of the many dimensions of legal thought gives ample expression to the true breadth and depth of the philosophy of law, with coverage of: *The (...) modes of knowing and the kinds of normativity used in the law *Studies in international, constitutional, criminal, administrative, persons and property, contracts and tort law-including their historical origins and worldwide ramifications *Current legal cultures-such as common law and civilian, European, and Aboriginal *Influential jurisprudents and their biographies *All influential schools and methods Coverage of all major historical, cultural, and geographical settings for legal philosophy A thorough understanding of any legal issue necessitates an acquaintance with its antecedents and its corollaries. Thus, added to the consideration of other current legal cultures outside of North America are treatments of other periods significant to legal thinking, such as the Hellenistic, Sixteenth-century, or Federalist. Discussion of the practice of legal philosophy today In every major area where public policy gives rise to philosophical inquiry regarding the law, debates and discussions are covered in full: tort reform, protection of life and death, gay rights, objectives in punishment, non-putative detention, international deterrence, legitimacy of government. And the historical and international dimensions of these issues-how they are resolved in other times and places-are not lost. Contributions from prominent legal and philosophical scholars from around the world The international array of more than 300 contributors from over forty countries complements the volume's international scope. With many contributors being forces in the very debates they write of, some fifty percent of them work in the law-as judges, jurists or jurisprudence-and another half are philosophers in the social sciences and humanities. Their work spans the practice that is taken for philosophy of law today. Special features *Contributions of more than 300 international scholars from more than 40 countires *Extensive bibliographies at the end of each entry *Detailed subject guide for easy access to the main topics covered *Comprehensive, analytical index. (shrink)

The purpose of this work is to elaborate an empirically grounded mathematical model of the magnitude of consequences component of "moral intensity", 366, 1991) that can be used to evaluate different ethical situations. The model is built using the analytical hierarchy process and empirical data from the legal profession. One contribution of our work is that it illustrates how AHP can be applied in the field of ethics. Following a review of the literature, we discuss the development of (...) the model. We then illustrate how the model can be used to rank-order three well-known ethical reasoning cases in terms of the magnitude of consequences. The work concludes with implications for theory, practice, and future research. Specifically we discuss how this work extends the previous work by Collins regarding the nature harm variable. We also discuss the contribution this work makes in the development of ethical scenarios used to test hypotheses in the field of business ethics. Finally, we discuss how the model can be used for after-action review, contribute to organizational learning, train employees in ethical reasoning, and aid in the design and development of decision support systems that support ethical reasoning. (shrink)

The perceived split between 'analytical' and 'critical' traditions in mainstream philosophy is deeply outmoded and no longer relevant. In legal philosophy it persists. This article argues for an end to any treatment of one or other tradition as radically 'other'. It traces the division to a misunderstanding of the philosophy of Martin Heidegger and its repercussions for normative legal theory. It demonstrates that a truly Heideggerian account of adjudication leads to similar normative conclusions to (...) those of Ronald Dworkin. It further demonstrates that Heidegger's conception of 'practical philosophy' is similar to that of John Finnis. The article concludes with some remarks about the broader implications for how we treat key figures in the history of ideas in all of our theoretical engagements. (shrink)

Bad philosophy is responsible for the climate and nature crises, and other global problems too that threaten our future. That sounds mad, but it is true. A philosophy of science, or of theatre or life is a view about what are, or ought to be, the aims and methods of science, theatre or life. It is in this entirely legitimate sense of “philosophy” that bad philosophy is responsible for the crises we face. First, and in a (...) blatantly obvious way, those institutions, organizations, corporations, businesses, endeavours, and activities of humanity that cause the crises and global problems we face, do so because of the aims they pursue (profit perhaps, or power, or heat and light for homes), and the methods adopted in pursuit of those aims – the philosophy in other words, built into the institution, organization, business, human activities, or whatever it may be. It is the philosophy of these institutions, organizations and activities that we need to change to put a stop to, or at least lessen the severity of, the crises we face, the global problems that confront us, above all the climate and nature crises. One institution has an especially crucial role in this respect: our universities. They are dominated in a multitude of ways by a particularly disastrous philosophy, a philosophy of inquiry which may be called knowledge-inquiry. This holds that the basic aim of the university is to acquire and apply knowledge. First, knowledge is to be acquired; once acquired, it can be applied to help solve social problems. But this philosophy of knowledge-inquiry is an intellectual disaster. As a result, universities are, in devastating and almost entirely unrecognized ways, humanitarian disasters too. Judged from the standpoint of helping to promote human welfare, the university shaped by the philosophy of knowledge-inquiry violates THREE of the four most elementary rules of rational problem solving conceivable in a wholesale, structural fashion, and it is this gross, wholesale, structural irrationality of the university, unnoticed by all but a few scientists and scholars, that is in part responsible for the creation of our grave global problems, and our current incapacity to learn how to solve them. The pursuit of knowledge, conducted in universities, within the framework of knowledge-inquiry over the decades and centuries, has produced much of great benefit to humanity. It has made the modern world possible. It has led to modern power production, modern industry and armaments, modern agriculture, modern hygiene and medicine, modern travel and communications, and the internet. But these very successes have also created many of our most serious current global problems: the climate crisis; the destruction of natural habitats, the catastrophic loss of wild life, and impending mass extinction of species (the nature crisis); the lethal character of modern war; the impact on the natural world of the rapid growth of the human population; the menace posed by nuclear weapons; pollution of earth, sea and air; threats to democracy caused in part by the internet and social media. All these grave global problems have been made possible by modern science and technology, pursued largely in universities within the framework of knowledge-inquiry. Nevertheless, it is not science and technology as such that are the problem, but science pursued in a way that is dissociated from a more fundamental task of the university to help humanity resolve conflicts and problems of living in increasingly cooperatively rational ways, so that progress may be made to a better world. Science and technology, pursued within the framework of knowledge-inquiry, create for some of us the power to act, but not the power to act wisely – not the power to learn how to resolve conflicts and problems of living in increasingly cooperatively rational ways. For that, we need our institutions of learning, above all our universities, to take as their primary task to help humanity learn how to do it. In order to do that, the philosophy of inquiry put into practice by universities needs to be dramatically transformed. We urgently need to bring about a revolution in the overall aims and methods of academic inquiry – a revolution in the philosophy of the university, all around the world, wherever possible, so that the basic aim becomes to seek and promote wisdom, construed to be the capacity, active endeavour, and perhaps desire, to realize what is of value in life, for oneself and others, wisdom in this sense including knowledge, understanding and technological know-how, but much else besides, methods being dramatically modified too so as to help achieve the new academic aim. The basic task of the university would be, not to solve problems of knowledge, but rather to help people in the social world beyond the university to resolve conflicts and problems of living so that what is of value in life may be realized by everyone, insofar as that is possible. The pursuit of knowledge would be vital, but not intellectually fundamental. The intellectual and institutional revolution we so urgently need in our universities would affect every discipline and aspect of the university; it would dramatically affect both research and education, and the whole way the university is related to the rest of the social world. The revolution, from knowledge-inquiry to wisdom-inquiry would dramatically enhance the intellectual integrity and rationality of natural science, social inquiry, the humanities and technology, the character of these disciplines and the relationships they have with one another. University education throughout the university would be dramatically improved. And academic inquiry as a whole would do what, on the whole, it fails to do at present: it would help humanity resolve conflicts and problems of living in increasingly cooperatively rational and, as a result, increasingly successful ways, progress at last being made to a genuinely good, civilized world – a world in which there is peace, justice, liberal democracy, individual freedom, education, reasonable equality, sustainable prosperity and worthwhile opportunities in life, all of these for everyone, insofar as this is possible. Why, it may be asked, has academic philosophy not noticed that we urgently need to transform the current bad philosophy of inquiry of knowledge-inquiry into the far more intellectually rigorous and humanly valuable philosophy of wisdom-inquiry, so that we can begin to do what so far we have failed to do so lamentably: learn how to avoid impending disasters, and even make progress to a better world, something that seems at present almost unthinkable given the horrors of war, poverty, political enslavement of the 20th century, and the horrors of this century so far too? The answer is that academic philosophy is in a particularly pitiful state, as philosophers themselves, are just beginning to realize and lament. That is why academic philosophers are blind to the intellectual and humanitarian disaster of the bad philosophy that dominates universities today, and inconceivable to them to them that they might have, as a disciplinary task, to ensure academic inquiry implements a good philosophy of inquiry, and advocate and argue for change if it does not. Once upon a time, in Europe at least, philosophy was an intellectual power in the world. In the 17th century it created modern science which massively increased and improved our knowledge and understanding of the world, which in turn led to the Enlightenment, the industrial revolution, and the modern world. Philosophy was once so intellectually powerful and influential that it changed the course of history. But philosophy also made in the past three disastrous intellectual blunders: the post-Cartesian blunder, the post-Newtonian blunder, and the Enlightenment blunder. Never acknowledged and corrected by subsequent philosophy right down to the present, these unrecognized intellectual blunders rendered academic philosophy the esoteric, pathetic, and powerless discipline it is today, so that throughout the last century and, so far, throughout this one, academic philosophy has remained blind to the intellectual disaster of knowledge-inquiry, and thus failed entirely to take up its proper disciplinary task of warning fellow academics of the structural irrationality of the philosophy that prevails in the university, and of proposing what steps need to be taken to put things right. Instead of performing such an urgently needed philosophical task, so-called analytic philosophy was reduced to analysing the meaning of words. Since then, there has been hardly any discernible improvement, even if analysis of concepts no longer dominates the scene. Bad academic philosophy is indeed responsible for intellectual and humanitarian failures of the university. What the three past intellectual blunders of philosophy are, why their persistence so dramatically reduces academic philosophy to a triviality, and why, furthermore, this results in the failure of scientists and scholars to see what is so blatantly bad about the philosophy prevailing in universities around the world – the failure to see what so urgently needs to be done to put right what has been wrong for so long: all this is made clear in this book. A new kind of philosophy emerges during the course of the argument, critical fundamentalism, which has as its task to keep alive imaginative and critical – that is rational – thinking about our fundamental problem: How can our human world, the world we experience and live in – the world of living things, people, consciousness, free will, meaning and value – how can all of this exist and best flourish embedded as it is in the physical universe? That problem encompasses all others of life, science and thought. Critical fundamentalism tries to improve answers to aspects of this problem; but it also seeks to encourage everyone to think about the problem, from time to time, and think about how it interacts, in both directions, with more urgent particular and specialized problems of life and thought. Critical fundamentalism sets out to help improve bad philosophy wherever it is to be found: in social, political, commercial, legal, financial, and international life; and especially in academia, in institutions of learning, so that they become devoted to enhancing the capacity of people to learn how to achieve what is of genuine value in this brief life of a few decades if we are fortunate. Critical fundamentalism does everything it can to bring about the revolution in our universities we so urgently need. If taken up by mainstream philosophy, it might really have an impact, and begin to transform universities for the better, in both intellectual and humanitarian terms, and thus, enable humanity to learn how, after the grim failures and horrors of the last century and this one, to make progress to a better world. -/- . (shrink)

이 글의 목적은 국가의 규범적 이해를 위한 분석의 틀을 제시하는 것이다. 국가는 어떤 존재이어야 하는가, 국가는 국민과 어떤 관계를 가져야 하는가, 그리고 국가는 무엇을 해야 하는가? 이러한 규범적 질문에 대한 하나의 답변을 제시하는 것이 아니라, 이러한 질문들의 의미가 무엇인가를 보다 더 체계적으로 이해하는 데 도움이 되는 틀을 제시하는 것이다. 우선 국가에 대한 논의 영역을 국가의 존재, 국가와 국민과의 관계, 그리고 국가의 활동으로 구분한 뒤, 각 영역에서의 국가 개념을 구체화해서 국가권력, 국가당국, 그리고 국가정부로 정의한다. 그리고 각 영역에서 국가를 도덕적으로 평가할 수 (...) 있는 기준으로서 정당성, 상호성, 그리고 책임성을 각각 제시하고 설명한다. 즉, 국가가 최고의 배타적 권력을 주장할 때 확보해야 하는 정당성, 국가가 국민들을 향해 권한을 행사할 때 가져야 하는 상호성, 그리고 국가가 다양한 방법으로 지배 행위를 할 때 갖춰야 하는 책임성을 설명한다. 나아가 각 논의 영역에서 다룰 수 있는 하위 주제들을 정리한다. 결론에서는 세 가지 기준들의 관계에 대해서 우선성을 중심으로 간략히 설명한다. (shrink)

Applied analytical political philosophy has not been a thriving enterprise in the United States in recent years. Certainly it has made little discernible impact on public culture. Political philosophers absorb topics and ideas from the Zeitgeist, but it shows little inclination to return the favor. After the publication of his monumental work A Theory of Justice back in 1971, John Rawls became a deservedly famous intellectual, but who has ever heard political critics or commentators refer to the difference (...) principle or fair equality of opportunity in discussions aimed at a wide audience? Writing philosophically astute and beautifully accessible prose, often in not strictly academic journals of opinion, Ronald Dworkin has been in some ways the very model of a public intellectual, but the only reference to his opinions that I have seen in any newspaper occurred in a New York Times review of a restaurant near London along the Thames (as I recall, Dworkin was quoted as saying it was at the very least the best restaurant in the northern hemisphere). You might chalk up the situation to the fact that political philosophers tend to be liberal and the public political culture in the United States has been growing decidedly conservative, but that mismatch can hardly be the whole story. Right-wing libertarianism is a popular doctrine, but Robert Nozick’s classical and never superseded 1974 exploration of that view in his brilliant Anarchy, State, and Utopia is not cited. Nor is there a significant literature that seeks to derive practical policy recommendations from Nozick’s theory and relevant factual claims. Moreover, the isolation of political philosophy stands in marked contrast to the wide influence of theory in some disciplines. For example, consider the enormous germinating impact of Richard Posner’s ideas on law and economics over the past thirty years on academic and extra-academic American legal culture. (shrink)

In this wide-ranging investigation of many prominent issues in contemporary legal, political, and moral philosophy, Matthew Kramer combines penetrating critiques with original theorizing as he examines the writings of numerous major theorists (including Ronald Dworkin, H. L. A. Hart, Alan Gewirth, David Lyons, Ronald Coase, John Finnis, Jules Coleman, Anthony Kronman, and Richard Posner). While Kramer argues with the rigor that is the hallmark of the tradition of analytic philosophy, his inquiries extend not only to that tradition (...) but also to such other traditions as Aristotelianism and Continental philosophy and Legal Realism. (shrink)

Does a proper understanding of the role of philosophical inquiry and its re- lation to scientific inquiry entail that we should replace conceptual analysis with another methodology? Brian Leiter supports that conclusion by offer- ing a methodological criticism of recent analytical legal philosophy. I argue that Leiter’s proposal for breaking the deadlock of the Hart/Raz debate by supporting an exclusivist account of the rule of recognition on the grounds of its social-scientific utility leads to an unduly narrow (...) conception of the rel- evant features of a legal system.Resumen:¿Acaso una comprensión apropiada del papel del quehacer filosófico y su relación con la investigación científica implica que deberíamos reemplazar el análisis conceptual por alguna otra metodología? Brian Leiter responde que sí al ofrecer una crítica metodológica a la filosofía del derecho analítica reciente. El autor sostiene que la propuesta de Leiter para destrabar el debate Hart/Raz, consistente en apoyar una versión excluyente de la regla de reconocimiento sobre la base de su utilidad socio-científica, nos dirige hacia una concepción sumamente estrecha de las características relevantes de un sistema jurídico. (shrink)

Solidarity is a key concept in the European Union. However, the concept of solidarity lacks systematic theoretical examination to enable a sufficient understanding of its contextual meaning and to provide an operationalisable benchmark for analysis. To address this research gap, I propose an analytical framework for solidarity in the European Union that features four necessary conditions: particularity, instrumentality, reciprocity, and responsibility. I develop the framework through a transdisciplinary conceptual history approach, substantiated with a thorough document and legal analysis (...) of European integration and CJEU case law. I demonstrate the robustness and validity of the proposed framework by using EU asylum policy as a test case, a field where the question of solidarity is notoriously salient, which is exemplified by an area-specific expression of the concept: fair sharing of responsibility between the EU member states. Moreover, I show that the EU’s solidarity principle is necessary to maintain the bloc’s raison d’être. (shrink)

The following overview focuses on Simmels "analytical" exploration of money, i.e. on his treatment of the conceptual structure of monetary measurement, on his social ontology of money, and on his reflections regarding the potential impact of money on our conceptualization of abstract notions in general. The analysis provided in his Philosophy of Money entails a thorough conceptualization of the philosophical foundations supporting economic, legal, and sociological models of money evolving at the time. Simultaneously, Simmel uses this analysis (...) as the point of departure for a more general analysis of distinct changes to modern culture and society. (shrink)