The Concept of Law is one of the most influential texts in English-language jurisprudence. 50 years after its first publication its relevance has not diminished and in this third edition, Leslie Green adds an introduction that places the book in a contemporary context, highlighting key questions about Hart's arguments and outlining the main debates it has prompted in the field. The complete text of the second edition is replicated here, including Hart's Postscript, with fully updated notes to include modern (...) references and further reading. (shrink)

Democratic theory tends to proceed on the assumption that law requires democratic legitimation because it is coercive. However, the claim that law requires democratic legitimation is distinct from claims about the nature of law. This paper takes issue with the notion that law is coercive by an exploration of three distinct understandings of the nature of law: the state-based conception of law, law as the rules of institutionalized normative systems, and law as social norms. Drawing on insights from legal and (...) democratic theory, the paper defends the view that the ‘law’ to which democratic claims apply are the rules of conduct of institutionalized normative systems. Since rules that belong to such systems are found in associations beyond or below the level of the state, the scope of democratic participation is significantly wider than is usually recognized. (shrink)

ABSTRACT Most theorists agree that our social order includes a distinctive legal dimension. A fundamental question is that of whether reference to specific legal phenomena always involves a commitment to a particular moral view. Whereas many philosophers advance the ‘positivist’ claim that any correspondence between morality and the law is just a function of political circumstance, natural law theorists insist that law is intrinsically moral. Each school claims the crucial advantage of consistency with our folk concept. Drawing on the (...) notion of dual character concepts, we develop a set of hypotheses about the intuitive relation between a rule’s moral and legal aspects. We then report a set of studies that conflict unexpectedly with the predictions by legal positivists. Intuitively, an evil rule is not a fully-fledged instance of law. (shrink)

들뢰즈와 아감벤은 철학의 영역에서 법을 사유하는 중요한 현대적 이론들을 제공하는 철학자들이다. 들뢰즈의 법에 대한 연구는 그 자신의 시간론과 밀접한 관계를 맺고 있다는 점에 그 특징이 있으며, 아감벤의 법에 대한 연구는 자신의 철학의 핵심 개념인 배제-포함 구조를 통해서 사유한다는 점에 그 특징이 있다. 그런데 두 사람은 모두 카프카를 경유하여 두 사람의 핵심적인 문제의식으로 나아간다. 먼저 들뢰즈는 카프카의 「법 앞에서」에서 우리에게 인식될 수 있도록 그 내용이 주어져 있지 않은 법이 우리에게 처벌을 내림으로써만 언표된다는 것을 읽어낸다. 더 나아가 『소송』에서 K에게 완전한 무죄판결이란 없으며 (...) 오직 판결을 ‘지연’시키는 방법만이 있을 수 있다고 말하는 화가 티토렐리에 주목하면서, 법과 시간의 문제를 탐구한다. 아감벤은 데리다의 「법 앞에서」에 대한 해석을 경유하여 카프카에 접근한다. 데리다는 열린 문 앞에서 들어가는 것이 ‘가능하지만 지금은 안 되는’ 바로 이 상황이 우리를 둘러 싼 법과 우리의 관계라는 점에 주목한 바 있다. 법에 대한 접근 가능성은 ‘지금은 안 된다’는 방식으로 무한히 지연된다는 것이다. 아감벤 역시 이러한 들어갈 수 있는 자유가 있음에도 불구하고 들어갈 수 없는, 그래서 자유롭지도 자유롭지 않지도 않은 법과 우리의 관계를 배제-포함 구조로 설명한다. 그렇기 때문에 아감벤의 카프카 읽기는 법이 그 내용이 주어져 있지 않음에도 우리를 강제하고 있음을 의미한다는 들뢰즈의 사유와 만나게 된다. 이 연구는 들뢰즈와 아감벤의 법 해석을 함께 탐구함으로써, 두 사람이 말하는 법의 강제로부터 우리를 해방시키는 방법과 그 의의를 밝혀본다. (shrink)

Law in between facts and norms -- Law in the postnational constellation -- Situating the debate between Habermas and Hart -- Establishing institutions -- The variety of legal systems -- Relations between legal systems -- The quest for normative foundations -- Conceiving general jurisprudence.

The articles in this volume offer a fresh perspective on the important role of the concept of law (lex) in the moral and political philosophy of the 'School of Salamanca'.

In this study international legal experts explore legal concepts and contexts from diverse national and disciplinary perspectives. Themes range from legal and normative pluralism to the development of state law and legal systems, and from law's rhetoric and the potential utility of alternative vocabularies to the polyjurality of the present. The study combines theoretical analyses and case studies to create a rich picture of present scholarship on laws and norms and the state of contemporary legal complexity, each crossing traditional boundaries.

The main thesis of this article is that Kant’s concept of law is a non-positivistic one, notwithstanding the fact that his legal philosophy includes very strong positivistic elements. My argument takes as its point of departure the distinction of three elements, around which the debate between positivism and non-positivism turns: first, authoritative issuance, second, social efficacy, and, third, moral correctness. All positivistic theories are confined to the first two elements. As soon as a necessary connection between these first two (...) elements and the third element, moral correctness, is established, the picture changes fundamentally. Positivism becomes non-positivism. There exist two kinds of connections between law and morality: classifying and qualifying connections. This distinction stems from different sorts of effects that moral defects give rise to. A classifying connection leads to the loss of legal validity, whereas a qualifying connection leads only to legal defectiveness. In Kant’s theory of law both connections are found. The qualifying connection is conspicuous throughout Kant’s theory of law, whereas the classifying connection, by contrast, is rare and well hidden. This will suffice to consider Kant as a representative of inclusive non-positivism. (shrink)

Over the past 50 years, there has been a great deal of philosophical interest in laws of nature, perhaps because of the essential role that laws play in the formulation of, and proposed solutions to, a number of perennial philosophical problems. For example, many have thought that a satisfactory account of laws could be used to resolve thorny issues concerning explanation, causation, free-will, probability, and counterfactual truth. Moreover, interest in laws of nature is not constrained to metaphysics or philosophy of (...) science; claims about laws play essential roles in areas as diverse as the philosophy of religion (e.g., in the argument from design) and the philosophy of mind (e.g., in the formulation of Davidson’s anomalous monism). In my dissertation, I consider and reject the widely-held thesis that the facts concerning laws can be reduced to the facts concerning the particular entities that the laws “govern,” and that the laws thus have no independent existence. I instead defend a version of nomic primitivism, according to which the facts about laws cannot be reduced to facts that are themselves non-nomic – i.e., to facts that do not fundamentally involve laws, counterfactuals, causes, etc. Insofar as the truth or falsity of reductionism about laws has implications for many of the problems mentioned above, I think that this result should be of interest even to those who who do not work in metaphysics or the philosophy of science. My methodology, which I lay out and defend in Chapter One, is a version of Carnapian explication. This method emphasizes the importance of articulating and maintaining clear distinctions between (1) the vague concept (or concepts) law of nature inherent in ordinary language and scientific practice and (2) the precise analyses of “law of nature” that philosophers have proposed as potential replacements for this concept. I argue that metaphysics-as-explication has clear advantages over rival conceptions of metaphysical methodology; in particular, it allows us to formulate evaluative criteria for metaphysical claims. In Chapter Two, I offer an example of how careful attention to concepts already in use can help resolve philosophical debate. Specifically, I argue that much recent literature has mistakenly assumed that there is only one concept of “law of nature” in use, while there are in fact at least two. Strong laws are the principles pursued by fundamental physics: they are true, objective, and bear distinctive relationships to counterfactuals and explanation. Weak laws, by contrast, lack at least one of these distinctive characteristics but play central roles in both the “special sciences” and in everyday life. In Chapters Three and Four, I offer extended arguments against the two most prominent versions of reductionism about laws – Humeanism and law necessitarianism. According to philosophical Humeans, the laws of nature supervene upon the non-modal, non-nomic facts concerning the behavior of particular things at particular times and places. Law necessitarians, by contrast, argue that the laws are in fact metaphysically necessary, and that which laws there are is determined by a class of primitive, modally loaded facts concerning the essences, natures, or dispositions. I argue that both of these views are mistaken insofar as they disagree with well-entrenched scientific practices and those in favor of reductionism have failed to provided sufficient reason for thinking that these practices should be revised. Much of my argument is focused on the role played by a number of supposed methodological principles, including appeals to intuition, parsimony, and methodological naturalism. While the conclusions of this dissertation are explicitly constrained to laws, many of the arguments should be of interest to those who are concerned about philosophical methodology (especially in the role of intuition in philosophical argument) or the appropriate relation between metaphysics, science, and the philosophy of science. (shrink)

This book subjects the traditional concept of law of nature to critical examination. There are two kinds of reasons that invite this reexamination, one deriving from philosophical concerns over the traditional concept, the other motivated by theoretical and practical changes in science. One of the philosophical worries is that the idiom of law of nature, especially when combined with the notion of laws 'governing' individual events and processes, is no longer as intelligible as it used to be in (...) the theistic context in which the formulation of laws became central to science. The traditional concept is also challenged in various ways by contemporary scientific theories such as quantum mechanics, chaos theory and the general theory of relativity. It is no longer clear that there are any universal laws, laws do not always guarantee predictability, and the border between physical and mathematical considerations is constantly shifting. The most difficult challenge, perhaps, is to come up with a scientific explanation of the origin of laws. Wrestling with these intriguing problems, the papers in this volume broaden both our understanding of the natural order and our desiderata of scientific explanation. (shrink)

The argument of this Article is based on positivist postulates defining law as the union of primary rules and secondary rules. Taking the presence of rules of change to be decisive for the appearance of legal orders, the author first looks for their origins in the Western world. Romans were the first, in the Western world, to develop a legal system with a clear rule of change, the possibility of a new statute abrogating an old one. This Western concept (...) of law has been exported by Western colonialism to America, Asia, and Africa, transforming social rules into laws thanks to the use of a Roman frame. While Jewish, Chinese and Islamic legal systems also fit this definition, their rules of change were not identical to the Roman ones. However, these other systems were not as successful as Roman law, which was linked historically with imperialism and colonialism. (shrink)

I argue that there are at least two concepts of law of nature worthy of philosophical interest: strong law and weak law. Strong laws are the laws investigated by fundamental physics, while weak laws feature prominently in the “special sciences” and in a variety of non-scientific contexts. In the first section, I clarify my methodology, which has to do with arguing about concepts. In the next section, I offer a detailed description of strong laws, which I claim satisfy four criteria: (...) (1) If it is a strong law that L then it also true that L; (2) strong laws would continue to be true, were the world to be different in some physically possible way; (3) strong laws do not depend on context or human interest; (4) strong laws feature in scientific explanations but cannot be scientifically explained. I then spell out some philosophical consequences: (1) is incompatible with Cartwright’s contention that “laws lie” (2) with Lewis’s “best-system” account of laws, and (3) with contextualism about laws. In the final section, I argue that weak laws are distinguished by (approximately) meeting some but not all of these criteria. I provide a preliminary account of the scientific value of weak laws, and argue that they cannot plausibly be understood as ceteris paribus laws. (shrink)

This paper sketches a dispositionalist conception of laws and shows how the dispositionalist should respond to certain objections. The view that properties are essentially dispositional is able to provide an account of laws that avoids the problems that face the two views of laws (the regularity and the contingent nomic necessitation views) that regard properties as categorical and laws as contingent. I discuss and reject the objections that (i) this view makes laws necessary whereas they are contingent; (ii) this view (...) cannot account for certain kinds of laws of nature and their properties. (shrink)

It is the thesis of this paper that the term scientific law can and should mean in the social sciences exactly what it means in any of the other sciences. There seems to be considerable agreement among scientists as well as others that a scientific law is a generalized and verifiable statement, within measurable degrees of accuracy, of how certain events occur under stated conditions. If I were to attempt a more specific statement I would say that a law is (...) a group of verbal or mathematical symbols designating an unlimited number of defined events in terms of a limited number of reactions so that the performance of specified operations always yields predictable results within measurable limits. (shrink)

In this paper, I make an attempt to look for a thin and general concept of law that, as far as possible, should be neutral to the more substantial views of legal moralism and legal positivism, so that it is acceptable from both points of view. With this aim in view, I shall begin with a few remarks on concept formation and name a list of necessary requirements on an appropriate concept of law. On this basis, I (...) intend to discuss a number of contemporary legal theories in view to their respective interpretations of the concept of law. Finally, I want to propose a definition of law that not only satisfies the requirements of the concept of law, but is also general enough to be compatible with both camps of legal thinking. (shrink)

Modern legal positivism can be criticized for being unduly state-centred, and thus failing to account for the role of law in modern, globalized and fragmented, society. One aspect of that state-centred perspective that has not been addressed adequately, is the role of legal officials. In theories such as that of Jules Coleman or Scott Shapiro, the distinction between officials and ordinary citizens plays a pivotal role: in the rule of recognition that grounds the concept of law, in the conventional (...) character of law and in the guidance function of law. I argue that the role of officials is overstated and the distinction with ordinary people is overdrawn.Resumen:El positivismo jurídico moderno puede ser cuestionado por concentrarse excesivamente en el Estado y, en consecuencia, por su incapacidad para explicar el papel del derecho en una sociedad moderna, fragmentaria y globalizada. Un aspecto que no ha sido abordado adecuadamente por esta perspectiva centralizada en el Estado es el papel de los oficiales del derecho. En teorías como las de Jules Coleman y Scott Shapiro la distinción entre los oficiales y los ciudadanos ordinarios ocupa un papel central: en la regla de reconocimiento que fundamenta el concepto de derecho, en el carácter convencional del derecho y en la función del derecho de guiar la conducta. El estudio sostiene que el papel de los oficiales ha sido sobredimensionado y que la distinción entre éstos y los ciudadanos ordinarios ha sido exagerada. (shrink)

Legal theory usually distinguishes only two kinds of legal realism: the American and the Scandinavian. Another school of this theoretical perspective is German legal realism, which refers to scholars like Ihering, Weber, and Schelsky. According to German legal realism, the author outlines what legal theory can do to persuade modern jurisprudence to face the social reality of law, conceived as institutionalized normative communication. The latter always occurs with reference to already valid and effectively operative legal norms which are used in (...) an established, normatively binding legal practice in a given regional society. (shrink)

In spite of its title, this volume sheds no new light on the debated problem of whether Peirce's ideas form, or can be reconstructed to form, an integrated and internally consistent system. The book, instead, avoids the problem entirely, the pith of its thesis about the unity of Peirce's philosophy being that, in various guises, the notion of Thirdness permeates his thought. Apparently, Haas thinks it evident that to point up the central role of this notion in each of Peirce's (...) subdivisions of philosophy—Phenomenology, Logic, and Metaphysics—is to show the unity of the philosophy as a whole. But he does not counter any specific charges brought against this claim of unity—though he mentions some of them—or even outline how the conception of law is to vindicate this claim. What he does do, following Peirce's three-fold division of philosophy, is to conduct a survey built around the Firstness-Secondness-Thirdness theme; and this exposition, though uncritical, is not lacking in care and subtlety, so that those looking for an overview of Peirce's thought can profit from the book.—C. T. W. (shrink)

The author starts with the assumption that present‐day Western society is complex, pluralistic and conflictual in nature. Because of these qualities of society, law appears as an ineluctable means for the regulation of societal relationships. Law does not express an amorphous common good, nor is it simply an instrument of power. Law turns the socio‐ethical and political conception that discursively prevails in the competition among the diverging conceptions of dynamic social groups into generally binding standards of conduct. In the socio‐axiological (...) concept of law presented here, law exhibits the conflicting character of the open, pluralistic society and brings about understanding for democracy and discursive‐deliberative politics. These are favourable presuppositions for the acceptability of law. (shrink)

The apology to the reader -- The corpus chair and oxford jurisprudence as evolved by 1952 -- The gladsome light of philosophical jurisprudence -- The elusive sources of Hart's ideas in The Concept of Law -- Cyclops, hedgehogs, and foxes -- Where Homer nodded? -- Judging a pioneer.

The Concept of Physical Law is an original and creative defense of the Regularity theory of physical law, the concept that physical laws are nothing more than descriptions of whatever universal truths happen to be instanced in nature. Professor Swartz clearly identifies and analyzes the arguments and intuitions of the opposing Necessitarian theory, and argues that the standard objection to the Regularity theory turns on a mistaken view of what Regularists mean by 'physical impossibility'; that it is impossible (...) to construct an empirical test that can distinguish between events Necessitarians call 'mere accidents' and those they call 'nornologically necessary', and that the Necessitarian theory cannot account fot human beings' free wills. Other topics in this important work include: the distinction between instrumental scientific laws and true physical laws; the distinction between failure and doom; potentialities; miracles and marvels; predictability and uniformity; statistical and numerical laws; and necessity-in-praxis. (shrink)

Recently several thought experiments have been developed (by John Carroll amongst others) which have been alleged to refute the Ramsey-Lewis view of laws of nature. The paper aims to show that two such thought experiments fail to establish that the Ramsey-Lewis view is false, since they presuppose a conception of laws of nature that is radically at odds with the Humean conception of laws embodied by the Ramsey-Lewis view. In particular, the thought experiments presuppose that laws of nature govern the (...) behavior of objects. The paper argues that the claim that laws govern should not be regarded as a conceptual truth, and shows how the governing conception of laws manifests itself in the thought experiments. Hence the thought experiments do not constitute genuine counter-examples to the Ramsey-Lewis view. since the Humean is free to reject the conception of laws which the thought experiments presuppose. (shrink)

The proliferation of forms of transnational regulation, often unclear in their relation to the law of nation states but also, in some cases, claiming authority as “law,” suggests that the concept of law should be reconsidered in the light of processes associated with globalisation. This article identifies matters to be taken into account in any such reconsideration: in particular, ideas of legal pluralism, of degrees of legalisation, and of relative legal authority. Regulatory authority should be seen as ultimately based (...) in the diverse moral conditions of the networks of community which regulation serves. (shrink)

In her paper, “The Non-Governing Conception of Laws,” Helen Beebee argues that it is not a conceptual truth that laws of nature govern, and thus that one need not insist on a metaphysical account of laws that makes sense of their governing role. I agree with the first point but not the second. Although it is not a conceptual truth, the fact that laws govern follows straightforwardly from an important (though under-appreciated) principle of scientific theory choice combined with a highly (...) plausible claim about the connection between scientific theory choice and theory choice in metaphysics. I present and defend this argument and then show how the resulting understanding of governance gives rise to an especially strong version of recent explanatory circularity arguments against Humeanism about laws of nature. Finally, I present three options for a further understanding of the governance relation that are compatible with my argument. (shrink)

The article aims to clarify Kant's concept of law, which he developed in the “Metaphysische Anfangsgründe der Rechtslehre” from 1797. Decisive for Kant's concept of law is the distinction between internal and external relations of persons. Law is restricted to external relations. So the crucial question is: Where does Kant draw the line between internal and external relations? Four possibilities are analysed in an order of increasing extent: only causal consequences of our actions in the external world beyond (...) our bodies; causal consequences in the external world plus our externally empirical sensible bodily behaviour; causal consequences in the external world plus all physiological changes in the actor like nerve stimulations and brain activities; all features of plus all non-a-priori mental and emotional changes like emotions, inclinations, empirical concepts, hypothetical imperatives etc., in sum: Kant's division between homo noumenon and homo phaenomenon. While modern interpretations would perhaps endorse possibility, Kant has chosen – so the main argument of the article – the widest possible alternative. This brings him to a very extensive concept of law. Only in reflecting this wide extent of Kant's concept of law, we are able to understand his philosophy of law. (shrink)

This article provides an assessment of the merits of recent theories of legal reasoning. After a quick historical aperçu a number of models of legal argumentation are presented and discussed, with an eye to their mutual connection. An initial conclusion is that universalizability and discursivity are the common features of those models. The focal question dealt with, however, is that of the impact of the argumentative paradigms of adjudication on the very concept of law. Here the contention is that (...) an argumentative style of reasoning contributes to rendering the structure of the law itself and its operations argumentative as well. By so doing the latter are—so to say—civilized and made less truculent. They will thus be able to develop more in conformity with a democratic form of life. (shrink)

EDITOR’S ABSTRACTThis article argues that Shang Yang’s philosophy of law was not only a means to enrich the state and strengthen its army, but also envisioned the orderly rule of all All-under-Heaven. Through a fair, universal, and reliable use of rewards, punishments, and also teaching, this vision of laws could ultimately lead to the promotion of moral values, popular consensus, and people’s self-governance. While the authors admit that in Shang Yang’s own historical context, law was no more than a tool (...) used by the ruler to suppress his people, potentially his ideas could contribute to a future Chinese society fully ruled by law and morality, and inspired by the rule of law. (shrink)

El concepto de derecho de H. L. A. Hart es un clásico moderno de la teoría jurídica. Pero también es relevante para la filosofía moral y social. En este artículo se argumenta que las críticas de Hart hacia Austin y Bentham, así como sus teorías sobre la naturaleza del derecho, la moral y la coerción, retoman una tradición de pensamiento iniciada por David Hume. Además, la filosofía social de Hart tiene implicaciones normativas interesantes. Este artículo se concentrará en un solo (...) ejemplo: el concepto de libertad. A pesar de que Hart no analiza el concepto de libertad en su libro, el autor sostiene que su análisis del derecho puede ayudarnos a comprender esa noción tan altamente discutida.Abstract:H. L. A. Hart’s The Concept of Law is a modern classic of legal theory. However, it is also relevant to moral and social philosophy. Here, it is argued that Hart’s criticism of Austin and Bentham, and his views on the nature of law, morality and coercion continue the tradition initiated by David Hume. Moreover, Hart’s social philosophy has interesting normative implications. I shall focus on one single example: the concept of liberty. Although Hart does not analyze the concept of liberty in his book, I argue that his analysis of law may help us to understand that highly contested notion. (shrink)

This book discusses the legal thought of Bronislaw Malinowski (1884-1942), undoubtedly one of the titans of social sciences who greatly influenced not only the shape of modern cultural anthropology but also the social sciences as a whole. This is the first comprehensive work to focus on his legal conceptions: while much has been written about his views on language, magic, religion, and culture, his views on law have not been fairly reconstructed or recapitulated. A glance at the existing literature illustrates (...) how little has been written about Malinowski's understanding of law, especially in the legal sciences. This becomes even more evident given the fact that Malinowski devoted much of his scholarly work to studying law, especially in the last period of his life, during which he conducted broad research on law and "primitive jurisprudence". The main aim of this book is to address this gap and to present in detail Malinowski's thoughts on law. This book is divided into two parts. Part I focuses largely on the impact that works of two distinguished professors from his alma mater (L. Dargun and S. Estreicher) had on Malinowski's legal thoughts, while Part II reconstructs Malinowski's inclusive, broad and multidimensional understanding of law and provides new readings of his legal conceptions mainly from the perspective of reciprocity. The book offers a fresh look at his views on law, paving the way for further studies on legal issues inspired by his methodological and theoretical achievements. Malinowski's understanding of law provides a wealth of fodder from which to formulate interesting research questions and a solid foundation for developing theories that more accurately describe and explain how law functions, based on new findings in the social and natural sciences. (shrink)

Fifty years on from its first publication, The Concept of Law is still the starting point for the study of legal philosophy and is widely heralded as a classic work of modern philosophy. This third edition features a new introduction by Leslie Green, looking at Hart's work from the perspective of modern jurisprudence.

The Postscript to The Concept of Law contains Herbert Hart's only sustained and considered response to the objections pressed against his views by his distinguished critic, Ronald Dworkin. In this extraordinary collection, many of the leading legal philosophers in the world evaluate the success of Hart's responses to Dworkin on several of these counts. Notable contributors include Joseph Raz of Oxford University and Jules L. Coleman of the Yale Law School.