In 1935, the Nazi government introduced what came to be known as the abrogation of the pro- hibition of analogy. This measure, a feature of the new penal law, required judges to stray from the letter of the written law and to consider instead whether an action was worthy of pun- ishment according to the ‘sound perception of the people’ and the ‘underlying principle’ of existing criminal statutes. In discussions of Nazi law, an almost unanimous conclusion is that a system (...) of criminal law ought not to contain legislation of this sort. This conclusion is often based on how the abro- gation relates to the normative claim that the law ought to be predictable. In particular, it has been argued that since the law ought to be predictable, and since this type of analogy legis- lation implied, caused or contributed to the diminution of the law’s predictability, this type of legislation ought to be prohibited. In this paper, we argue that this argument is not entirely correct. While we believe that the law ought to be predictable and that there is evidence for the claim that the Nazis’ intro- duction of analogical reasoning implied, caused, or contributed to a diminution of predictability, this fact is logically too weak to ground the conclusion that necessarily a penal system ought not to contain legislation of this kind. Despite the undeniable wickedness of the Nazi penal system, this type of analogical reasoning can be made consistent with the pre- dictability of the law. We argue that consistency of this sort depends on whether the use of analogy is supplemented by certain contextual background conditions. The occurrence of these conditions blocks an inference from the fact that the law ought to be predictable to the conclusion that a penal system ought not to allow for this type of analogical reasoning. (shrink)

The paper addresses the question how descriptive language is used to express legal norms. Sentences we find in legislative acts, i.e. statutes, constitutions and regulations, express legal norms. Linguistically speaking, there are various grammatical and lexical ways of expressing norms, such as imperative mood, modal verbs, deontic verbs, etc. However, norms may also be expressed by descriptive sentences, namely sentences in present or future tense and indicative (declarative) mood (i.e. _The minister determines the tax rate_). In many civil (...) law countries (including Poland), this is a very common, if not the default, form of expressing norms in legislative texts. Often presented as a legal peculiarity, this phenomenon has yet to draw much academic attention. The normative meaning of descriptive sentences is usually attributed to purely pragmatic factors stemming from our shared assumptions about the legal system. However, a closer look reveals that similar grammatical constructions are ubiquitous in everyday communication and in different languages. We tend to utter various sorts of directives using descriptive sentences (_Now we add a spoon of salt to the sauce_; _credit cards are not accepted_). This suggests the possibility for a linguistic (as opposed to exclusively legal) explanation. This paper aims to offer such an explanation. Rather than resorting to formal semantics, so prevalent in legal theory, it borrows from Cognitive Linguistics to reveal the cognitive underpinnings of our surprising tendency to express normativity in descriptive terms. This involves four different, yet complementary, theories. Firstly, the theory of conceptual metaphor by George Lakoff and Mark Johnson which explains the phenomenon in question in terms of the metaphor “ ought is is ”; with “ ought ” as the more abstract target domain and “ is ” as the more concrete, cognitively simpler source domain. Secondly, the theory of speech act metonymy by Panther and Thornburg which presents descriptive legal sentences as referring to various components of the underlying cognitive scenario of obligation. Thirdly, Ronald Langacker’s notion of the virtuality of language as the explanation for non-present, including future, perpetual and directive, uses of the present tense. Fourtly, the notion of normative generics which points to the nominal, as opposed to verbal, structure of descriptive legal sentences as the source of their normativity. (shrink)

There are many different oughts. There is a moral ought, a prudential ought, an epistemic ought, the legal ought, the ought of etiquette, and so on. These oughts can prescribe incompatible actions. What I morally ought to do may be different from what I self-interestedly ought to do. Philosophers have claimed that these conflicts are resolved by an authoritative ought, or by facts about what one ought to do simpliciter or all-things-considered. However, the only coherent notion of an ought (...) simpliciter has preposterous first-order normative commitments. It is more reasonable to reject the ought simpliciter in favor of the form of normative pluralism advocated in (Tiffany 2007). (shrink)

We almost every day direct our actions with reference to social, moral or legal norms and oughts. However, oughts and norms cannot be perceived through the senses: how can we “grasp” them, then? Adolf Reinach distinguishes enacted norms and oughts created through a social act of enactment, from moral norms and oughts existing in themselves independently of any act, knowledge or experience. I argue that this distinction is not a distinction between two species of oughts within a common genus: (...) it is rather a deeper ontological distinction between two modes of existence that are quite different, even though both are objective, according to Reinach. This ontological distinction is reflected in the way in which enacted oughts and moral oughts can be grasped, respectively: in the former case, the enacted ought is grasped by going back to the underlying social act from which it springs; in the latter, a “grasping through feeling” of the moral values is implied. (shrink)

The article reconstructs the is/ought debate in legal theory through a phenomenological reading of the concept of normality. An analysis of Siniscalchi, Fuller and Manderson looks at the issue from the perspective of law and literature, and then applies Giambattista Vico’s rhetorical methodology within the contemporary debate. The question: “is Hume’s law really visible within Hume’s thought?” also paradoxically poses the figure of phantoms and fictions at the heart of the current theoretical debate on law. A history of the (...) phantom placed at the centre of the history of Western institutions still remains to be written, but a comparison of very diverse and incongrous approaches such as the extended order of Hayek, the dogmatic anthropology of Legendre, the eunomics of Fuller and the new science of Vico shows how the mystery of consciousness and the mystery of institutions are inextricably entwined. It is impossible at the moment to draw a coherent doctrine from these conflicting perspectives, but their convocation is sufficient to demonstrate how the theory of law is always suspended between the unknown and the human attempt to inhabit it, moving us toward an affective turn that has yet to be fully conceived in the theory of law, following the iconic turn. The anthropological primacy of fictio and the aesthetic-legal dimension in the constitution of language is not that of a logic and separation from the body and meaning, but the exact inverse, even in the unavoidable constant tension between the two poles: logic is born through the gesture of the body that precedes it, as myth precedes the foundation of the State; the origin of the concept is affective, as Hume, and perhaps Vico himself, would have passionately affirmed. (shrink)

Kelsen advanced a sophisticated naturalist conception of intention and adumbrated a methodological strategy that would enable the transformation of the sophisticated naturalist conception of ‘intention’ into a cognizable object of legal science while simultaneously providing an explanation of the legal ‘ought’. The methodological strategy is the ‘inversion thesis’ which establishes that legal norms enable us to objectively identify and determine the ‘will’ or the intention of legal authority. Contrary to nineteenth century psychologism, Kelsen argues that it (...) is not the case that the will or the intention of the sovereign determines what the norm is, rather it is the legal ought that ‘objectifies’ the will. However, it is argued that in spite of the fact that Kelsen advanced a sophisticated account of intentional action, he fails to understand the complexities of the notion of the ‘will’, intentional action and practical reason. What does he miss in his understanding of the notion of the practical? I will advance the view that the notion of the practical or deliberative involves, both in Kant and Aristotle, the transparency condition which establishes that the agent or deliberator intentionally acts for reasons that are self-evident or transparent to him or her. It is a recalcitrant feature of the deliberative standpoint that cannot be theorised. For Aristotle, Aquinas and Anscombe the deliberative standpoint can be known through the end or goal of the intentional action as this provides the form of the action. The end is presented as a good-making characteristic. As problematic as that might be, this means that the end needs to be presented as a good-making characteristic and therefore it involves evaluation. For Kelsen, the soundness of this conception is an insurmountable obstacle to theorise the ‘ought’ and therefore the ‘will’. Yet, surprisingly and contrary to Kelsen’s own notions, I will show that Kelsen’s ‘inversion thesis’ is parasitic on Aristotle–Anscombe’s ‘ought’. (shrink)

In this paper, we investigate the ‘ought implies can’ thesis, focusing on explanations and interpretations of OIC, with a view to clarifying its uses and relevance to legal philosophy. We first review various issues concerning the semantics and pragmatics of OIC; then we consider how OIC may be incorporated in Hartian and Kelsenian theories of the law. Along the way we also propose a taxonomy of OIC-related claims.

In Wilmot-Smith’s recent “Law, ‘Ought’, and ‘Can’,” he argues that legal obligation does not imply ability. In this short reply, I show that Wilmot-Smith’s arguments do not withstand critical scrutiny. In section 1, I attack Wilmot-Smith’s argument for the claim that allowing for impossible obligations makes for a better legal system, and I introduce positive grounds for thinking otherwise. In section 2, I show that, even if Wilmot-Smith had established that impossible obligations make for a better legal (...) system, his subsequent attack on OIC fails. (shrink)

This book explores the interrelation of facts and norms. How does law originate in the first place? What lies at the roots of this phenomenon? How is it preserved? And how does it come to an end? Questions like these led Georg Jellinek to speak of the “normative force of the factual” in the early 20th century, emphasizing the human tendency to infer rules from recurring events, and to perceive a certain practice not only as a fact but as a (...) norm; a norm which not only allows us to distinguish regularity from irregularity, but at the same time, to treat deviances as transgressions. Today, Jellinek’s concept still provides astonishing insights on the dichotomy of “is” and “ought to be”, the emergence of the normative, the efficacy and the defeasibility of norms, and the distinct character of what legal theorists refer to as “normativity”. It leads us back to early legal history, it connects anthropology and legal theory, and it demonstrates the interdependence of law and the social sciences. In short: it invites us to fundamentally reassess the interrelation of facts and norms from various perspectives. The contributing authors to this volume have accepted that invitation. (shrink)

In Wilmot-Smith’s recent ‘Law, “Ought”, and “Can”,’ he argues that legal obligation does not imply ability. In this short reply, I show that Wilmot-Smith’s arguments do not withstand critical scrutiny. In section 1, I attack Wilmot-Smith’s argument for the claim that allowing for impossible obligations makes for a better legal system, and I introduce positive grounds for thinking otherwise. In section 2, I show that, even if Wilmot-Smith had established that impossible obligations make for a better legal (...) system, his subsequent attack on OIC fails. (shrink)

It is commonly held that “ought implies can.” If so, what constraints does that place on the law? Having provided an argument which allows the maxim to be used by lawyers, I consider the application of that argument to both primary and remedial legal duties. This, it turns out, gives us some reason to reconsider whether the maxim is sound. Further, even if the maxim is sound, it has less purchase on remedial duties than is commonly supposed.

The important question of the legality of the state obliging trial incompetent defendants to receive competency-restoring treatment against their wishes, is one that has received much attention by legal scholars. Surprisingly, however, little attention has been paid to the, in many ways more fundamental, moral question of whether the state ought to administer such treatments. The aim of this paper is to start filling this gap in the literature. I begin by offering some reasons for thinking it morally acceptable (...) to, at least sometimes, oblige trial-incompetent defendants to receive competency-restoring treatments. The paper then discusses whether three prominent arguments (and their variations) offered by legal scholars against using non-consensual treatment to restore trial competence provide grounds for thinking there to be a general moral prohibition against these treatments. I argue that they do not. (shrink)

Any correct assessment of Hans Kelsen's conception of Ought must take into account, first, that Kelsen's theory evolved over some 60 years which saw several major changes of its fundamentals; and second, that the Pure Theory must basically be understood as a meta-theory of institutionalised legal science. With these provisos, Kelsen's explanation of the Ought oscillates between two extremes: at one extreme, the legal Ought is just a formal semantic marker delimiting the realm of the law; at the (...) other, the legal Ought might be conceived of as 'depersonalised will'. Kelsen's most profound and fertile explanation, however, identifies the legal norm with the normative judgment of legal science, while the Ought plays the role of a category (in a Kantian sense) vesting the judgment with normative force. (shrink)

Is there any sense to the idea of an ``ought''''that is not relative to any particularnormative framework? This ``ought'''' would not bea moral, prudential, legal, aesthetic, orreligious ``ought,'''' but rather an unqualified or just plain ``ought.'''' Thispaper (i) argues for the existence andusefulness of just plain ``ought''''; (ii) locatesthe concept of just plain ``ought'''' within amajor strand in the history of ethics (namely,the perennial attempt to demonstrate thatmorality and prudence are in harmony); and(iii) challenges David Copp''s recent attempt toshow (...) that in fact there is no such thing asjust plain ``ought.'''' A theory of just plain``ought'''' emerges along the way. (shrink)

Abstract.According to the normative theory of legal science, juristic ought‐sentences describe rules, since legal science just deals with rules, and rules cannot be described but by means of ought‐sentences. The author challenges this view. Two different constructions of “describing rules” are proposed: Namely, either interpreting or stating the validity of rules. “Interpreting rules,” in its turn, can be understood in three different senses: listing all the possible meanings of rule‐formulations, reporting the different interpretations a rule‐formulation has in fact (...) received by courts, or ascribing meaning to rule‐formulations. However, the author argues that ought‐sentences are not the proper tools to accomplish such tasks. At the same time, juristic ought‐sentences cannot be understood as validity statements, since they neither mention any rule whatsoever, nor include the term “valid.” Further, if validity‐statements were ought‐sentences, their logical behaviour would reflect the logic of rules themselves. However, as the late Kelsen argued, things do not run this way, since two inconsistent ought‐sentences, if understood as validity statements, can paradoxically both be true, as well as both false. Hence, validity‐statements cannot be reduced to ought‐sentences iterating the rules which they (are supposed to) refer to. (shrink)

An obligation may take either of two forms, each form being reported in a different way. For example, when we report the obligation of parents to care for their children, if it is the moral obligation we mean, we will say ‘Parents ought to look after their children’ but if we mean the legal obligation, we will say ‘Parents have to look after their children’. The law specifies that people shall do thus and so, not that they ought to (...) do thus and so. (shrink)

I consider a puzzle that arises when the logical principle known as “deontic detachment” is applied to the law. It is not possible to accept the principle of deontic detachment in a legal setting while also accepting that the so-called “social facts thesis” applies to all legal propositions. According to the social facts thesis, the existence and content of law is determined by the attitudes or practices of legal officials. Abandoning deontic detachment is not an appropriate solution (...) to the problem—the puzzle can be recreated with other plausible closure principles. The problem can be solved by restricting the social facts thesis to legal rules, rather than applying it to all legal propositions. Properly construed the social facts thesis does not apply to facts about what legally ought to be the case. (shrink)

Legal coercion seems morally problematic because it is susceptible to the Hegelian objection that it fails to respect individuals in a way that is ‘due to them as men’. But in what sense does legal coercion fail to do so? And what are the grounds for this requirement to respect? This paper is an attempt to answer these questions. It argues that legal coercion fails to respect individuals as reason-responsive agents; and individuals ought to be respected as (...) such in virtue of the fact that they are human beings. Thus it is in this sense that legal coercion fails to treat individuals with the kind of respect ‘due to them as men’. (shrink)

Could an artificial intelligence become a legal person? As of today, this question is only theoretical. No existing computer program currently possesses the sort of capacities that would justify serious judicial inquiry into the question of legal personhood. The question is nonetheless of some interest. Cognitive science begins with the assumption that the nature of human intelligence is computational, and therefore, that the human mind can, in principle, be modelled as a program that runs on a computer. Artificial (...) intelligence (AI) research attempts to develop such models. But even as cognitive science has displaced behavioralism as the dominant paradigm for investigating the human mind, fundamental questions about the very possibility of artificial intelligence continue to be debated. This Essay explores those questions through a series of thought experiments that transform the theoretical question whether artificial intelligence is possible into legal questions such as, "Could an artificial intelligence serve as a trustee?" What is the relevance of these legal thought experiments for the debate over the possibility of artificial intelligence? A preliminary answer to this question has two parts. First, putting the AI debate in a concrete legal context acts as a pragmatic Occam's razor. By reexamining positions taken in cognitive science or the philosophy of artificial intelligence as legal arguments, we are forced to see them anew in a relentlessly pragmatic context. Philosophical claims that no program running on a digital computer could really be intelligent are put into a context that requires us to take a hard look at just what practical importance the missing reality could have for the way we speak and conduct our affairs. In other words, the legal context provides a way to ask for the "cash value" of the arguments. The hypothesis developed in this Essay is that only some of the claims made in the debate over the possibility of AI do make a pragmatic difference, and it is pragmatic differences that ought to be decisive. Second, and more controversially, we can view the legal system as a repository of knowledge-a formal accumulation of practical judgments. The law embodies core insights about the way the world works and how we evaluate it. Moreover, in common-law systems judges strive to decide particular cases in a way that best fits the legal landscape-the prior cases, the statutory law, and the constitution. Hence, transforming the abstract debate over the possibility of AI into an imagined hard case forces us to check our intuitions and arguments against the assumptions that underlie social decisions made in many other contexts. By using a thought experiment that explicitly focuses on wide coherence, we increase the chance that the positions we eventually adopt will be in reflective equilibrium with our views about related matters. In addition, the law embodies practical knowledge in a form that is subject to public examination and discussion. Legal materials are published and subject to widespread public scrutiny and discussion. Some of the insights gleaned in the law may clarify our approach to the artificial intelligence debate. (shrink)

The legal progression in China is portrayed negatively by western scholars who often argue that the state institutions in China are subordinate to the control of Chinese Communist Party’s leadership which makes these institutions politically insignificant. We consider that the legal progression in China has an instrumental role in achieving “Harmonious Socialist Society.” The purpose of this thesis is to provide an analytical literature review of scholastic work to explain the legality of rule of law in China and (...) to elaborate the outcomes of China’s recent legal developments. This paper has two main subjects. First, it examines the nature of law and rule of law in China through the prism of different legal theories. Secondly, by arguing from different political theories, it explains the necessity of customized legal system in China for establishing a Harmonious Socialist Society. By giving different examples from contemporary China, this thesis argues that the legality of the rule of law in China ought to be understood in the context of China’s economic and social progression rather than the western legal scholarship. China’s economic progress demands a customized legal system. In our thesis, we claim that the regular upgradation of laws and introduction of constitutional amendments in China, should be recognized as important achievement which is required for the institutional innovation. Legal progression in China during last decade perfectly fit into the framework of “Socialism with Chinese Characteristics” and is very crucial for building a harmonious socialist society. It is vivid from China’s economic growth and developed international relations. Finally, this paper suggests that the Chinese legal progression can be taken as successful example of legal experimentalism. (shrink)

This chapter argues that a successful plea of legal insanity ought to rest upon proof that a criminal act is causally related to symptoms of a mental disorder. Diagnosis of a mental disorder can signal to the court that the defendant had very little control over relevant moral ignorance or incompetence. Must we draw the same conclusion for defendants who lack moral knowledge due to miseducation or other extreme environmental conditions, unrelated to a mental disorder? Adults who were brainwashed (...) as children, for example, might seem “insane” due to their lack of moral knowledge. However, since legal culpability rests on the capacity to understand the criminal law’s moral demands, to reflect on these demands across time, and to control one’s behavior in light of them, simple ignorance of morality's demands does not excuse. (shrink)

Legal rationalist: law claims to give its subjects reasons for action. Normative reasons intuition: Reasons for action being key, the obvious way to establish that law makes a practical difference in people's deliberations is by arguing that the law claims to give reasons for action to its subjects. Explanatory Reasons Intuition: "And while it is possible to be confused about our normative reasons, it seems unlikely that everyone is confused all the time; so the fact that people consistently take (...) the law as their motivating reason and guide their conduct by the law does seem to suggest that the law does provide normative reasons for its subjects." And if it’s a necessary feature of law that it claims authority, then the argu- ment seems to establish that law claims to provide reasons for its subjects. Schematically the argument as a whole goes like this: The law claims to be a legitimate authority. If a legitimate authority directs a subject to φ the subject is obligated to φ ). The fact that an agent is obligated to φ is a reason for her to φ. So the law claims that its directives are reasons......Obligations as Reason-Giving : the fact that A is obligated to φ is itself a reason for A to φ. Unfortunately for the Legal Rationalist, OAR is false. Legal obligation has certain features which mean that the fact that a certain action’s being legally obligatory cannot itself constitute a reason to perform that action." Will explain away the intuitions in terms of triggering, and show how law can make a normative difference that is consistent with the falsity of OAR. Law's claim, and normative impact, can be captured exclusively in terms of second-order reasons. PartofwhatHartisafterhereistheideathatdeliberationon the matter of whether or not to φ is closed or settled by the obligation. But deliberation is cut off because the law has reached some sort of conclusion or answer or verdict on the question of whether or not to φ. The legal obligation not to φ contains a practical verdict about φing: it is not to be done. This idea – that the legal obligation not to φ provides or contains a verdict that φing is not to be done – is the idea that legal obligation is verdictive. For something to be verdictive is for it to express or embody a verdict or conclusion as to what ought to be done. It is plausible to say that wrongness is verdictive. So to say that such-and-such an action would be wrong is to express a verdict on that action – it is one which should not be done. To get a handle on the idea of the verdictive it helps to contrast it with the contributory. A contributory consideration is one which contributes to the verdict, by increasing the weight on the verdict’s side. So that φing would harm someone, or would cause extreme suffering, or would have costs that vastly outweighed any benefits, say, would be contributory considerations on the side of the verdict that φing would be wrong." "Wrong" is verdictive, and so it cannot itself be a reason for the action - it cannot be a reason for itself. Obligation and wrong in law are very close, and obligation should be treated as verdictive. This shows us that OAR is false. (shrink)

There is legal uncertainty and academic disagreement as to the legal status of biological material that has become separated from the person. This article sets out the two criteria upon which the assessment of the legal status of ‘separated biological material’ ought to be made. It is suggested here that any argument concerning the legal status of separated biological material needs to (i) assess which ownership entitlements in the material the law ought recognize and (ii) assess (...) which set of legal rules ought to be used to protect these ownership entitlements. There are also limits to the way these two criteria ought to operate. First, the considerations that are necessary to justify an ownership entitlement in a body part vary between different types of ownership entitlements. Second, whether there is a necessary connection between recognizing an ownership entitlement and protecting the entitlement in a particular way also varies in terms of the type of ownership entitlement in question. By isolating these two criteria, and identifying the limits to their operation, this article prescribes an analytical framework through which the law and academic commentary can be viewed. (shrink)

Modern legal positivism tries to preserve the normativity of law while abstaining from generally viewing positive laws as reasons for action. This effort is epitomised, in particular, in Raz' idea that the substance of positive law can be imparted from the detached perspective of the ‘legal man’. From that perspective, it is not stated what one ought to do, all things considered, but merely what one ought to do from the legal point of view. The first part (...) of this article shows that the problem that the introduction of the ‘legal man’ is supposed to solve originates from an assimilation of Kelsen's legal positivism to ‘common sense’. The embrace of ‘common sense’, however, divests modern legal positivism of its critical edge. The second part of the article offers both a reductio ad absurdum of a conventionalist understanding of the ‘legal man’ and an analysis of legal knowledge that abstains from exploring its claim to validity. Legal knowledge of that type embraces bitter irony. (shrink)

The rapid advancement of artificial (computer) intelligence systems (CIS) has generated a means whereby assistive bionic prosthetics can become both more effective and practical for the patients who rely upon the use of such machines in their daily lives. However, de lege lata remains relatively unspoken as to the legal status of patients whose devices contain self-learning CIS that can interface directly with the peripheral nervous system. As a means to reconcile for this lack of legal foresight, this (...) article approaches the topic of CIS-nervous system interaction and the impacts it may have on the legal definition of “persons” under the law. While other literature of this nature centres upon notions of transhumanism or self-enhancement, the approach herein approached is designed to focus solely upon the legal nature of independent CIS actions when operating alongside human subjects. To this end, it is hoped that further discussion on the topic can be garnered outside of transhumanist discourse to expedite legal consideration for how these emerging relationships ought to be received by law-generating bodies internationally. (shrink)

This article examines the application of the ought‐implies‐can principle in the legal domain, especially in the relationship between obligations and responsibility. It addresses the challenge of cases in which an agent cannot do what is required of her, and yet it seems plausible to say that she has an obligation. To deal with these cases, two parallel distinctions are made: between rules of conduct and rules of imputation, and between doings and things done. It is proposed that these distinctions (...) show that the principle operates in two different but complementary ways: as part of prescriptive relations and as part of responsibility practices. (shrink)

Much of contemporary British legal theory has its roots in the tradition of philosophical empiricism—the philosophical position that no theory or opinion can be accepted as valid unless verified by the test of experience. In this context normativity, both in law and morals, is understood and explained in terms of social practices observable in the world. The nineteenth-century jurist John Austin, for example, defined law in terms of a command supported by a sanction and as presupposing the habitual obedience (...) of the bulk of a community to the commands of a sovereign himself not habitually obedient to anyone else. Similarly, Hart's conception of legal obligation, although somewhat more complex, derived from the observation of people's actual practices analyzed in terms of "the internal point of view" crucial to their comprehension of and participation to these practices. It is within this framework that we must consider the distinction between is and ought as used by British positivist theories and which is so essential to positivist jurisprudence. In this respect a chief difference between the British and the Continental traditions in legal theory prevails. This paper aims to re-examine some main themes of contemporary jurisprudence and explore the extent to which contemporary theorists, both British and Continental, have succeeded in developing a theory of law that would create a workable marriage between the two traditions. (shrink)

This paper approaches legal argumentation from a rhetorical perspective. It discusses the nature of the audiences that are targeted by judges in the legal process. Judicial opinions reach diverse groups of people with very different attitudes and expectations: other judges, lawyers, litigants, concerned citizens, etc. One important way in which these groups differ is that some of them are more likely to be persuaded by legalistic, precedent or statute-based arguments, while others expect judges to decide on grounds of (...) justice or equity. So, judges face the challenge of determining whether they should select particular groups for special attention, or whether they have alternative rhetorical means to approach the problem of audience diversity. One strategy that is likely to be recommended by rhetorical scholars is that judges should not try to accommodate the various preferences of their actual readership, but that they should rather invoke an idealized audience or some version of Chaïm Perelman’s universal audience. However, the paper tries to show that the universal audience is of limited value for a discussion about how judges ought to proceed in the face of audience diversity. In particular, the idea of a universal audience does not help judges to make the choice between a legalistic or an equity-based approach to legal decision-making. By showing that this is so, the paper also raises doubts about the common thought that to invoke the universal audience in law is to appeal to natural law. (shrink)

In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly legal conception from the rather (...) narrow viewpoint of the study of law's normativity, it is less attractive than the latter from the broader viewpoint of the study of the nature of law. I then distinguish between a moral and a strictly legal conception of the normative force of legal justification, and argue that legal positivists may without contradiction embrace the moral conception, and that therefore the analysis of the normative force of legal justification need not be a problem for legal positivists. I conclude that, on the whole, we have reason to prefer legal positivism to natural law theory. I begin by introducing the subject of jurisprudence . I then introduce the natural law/legal positivism debate, suggesting that we ought to understand it as a debate about the proper way to explicate the concept of law . I proceed to argue that legal decision‐making is a matter of applying legal norms to facts, and that syllogistic reasoning plays a prominent role in legal decision‐making thus conceived . Having done that, I discuss law's normativity , the normative force of legal justification , and the relation between the former and the latter . I conclude with a critical comment on Joseph Raz’ understanding of the question of law's normativity. (shrink)

In section i, I sketch the main arguments to date for legal moralism, And show the ways in which they are unpersuasive. In sections ii and iii, I sketch and evaluate a seemingly compelling argument, Dependent on the concept of wrongful conduct, For the weak thesis that the immorality of conduct is a reason, But not a sufficient reason for making it illegal. Despite the apparent persuasiveness of this argument, The particular conclusions of the legal moralist, That various (...) non-Harmful immoralities ought on balance to be criminal, Do not obviously follow. Finally, Once the argument for the weak thesis is understood, Even its initial persuasiveness is undermined by considerations of legal philosophy. (shrink)

It has become increasingly common for legal positivist theorists to claim that the primary objective of legal theory in general, and legal positivism in particular, is "explaining normativity." The phrase "explaining normativity" can be understood either ambitiously or more modestly. The more modest meaning is an analytical exploration of what is meant by legal or moral obligation, or by the authority claims of legal officials. When the term is understood ambitiously - as meaning an explanation (...) of how conventional and other empirical facts can give rise to moral obligations - as many legal positivist theorists seem to be using the phrase, the project is contrary to basic tenets of legal positivism, and has regularly led theorists to propose doubtful theories that ignore "is"/"ought" divisions. (shrink)

This paper will ask whether the legal status presently afforded to nonhuman animals ought to influence regulatory debates concerning human cerebral organoids. The New York Courts recently refused to grant a writ of habeas corpus to Happy the Elephant as she was property rather than a legal person while at the same time accepting that she is a moral patient deserving of rights protection. An undesirable situation has therefore arisen in which the law holds a being with moral (...) status to be incapable of benefitting from legal redress due to their legal status as property.The author argues that this is something that we ought to avoid when designing the regulatory framework which will govern the use of human cerebral organoids. Yet, a difference exists in that, whereas the judges already accept Happy is a moral patient, there is presently no consensus around the moral status of organoids. This paper will consider whether human cerebral organoids have passed the moral threshold of sentience. If they have, or are close to doing so, regulators ought to consider their legal status in advance so as to ensure that adequate limitations are placed on this usage so as to avoid unethical practices. (shrink)

We present an argument in support of the legal prohibition of infant male circumcision (IMC) in developed Western countries. We submit that all IMC, irrespective of whether the motivation behind it be secular or religious, violates children’s rights to self-determination (autonomy) and bodily integrity and is therefore morally illegitimate. And while IMC’s being morally wrong does not entail that it ought to be criminalised, we contend that it should be legally proscribed so as to protect children against harm and (...) to uphold their rights. We consider and reject an argument that an exemption from the legal ban should be granted to religious parents who perceive themselves to be under a moral obligation to subject their male infants to IMC. We argue that since IMC sets back children’s basic interests and violates their rights, there is no room, and no case, for the conferring of a religious exemption. (shrink)

Moral statements are related to some ought‐ and good‐making facts. If at least one of these facts exists then it is reasonable that an action in question is prima facie good and obligatory. If all of these facts take place, then it is reasonable that the action is definitively good and obligatory. Yet, moral reasoning is relatively uncertain. The law is more “fixed”. Legal interpretatory statements ought to express a compromise between the literal sense of the law and moral (...) considerations. They can be to a high degree both coherent and accepted. One may emotionally reject them but most people have a disposition to endorse a coherent and commonly accepted value system. (shrink)

Can there be a non-reductivist, source-based explanation of the use of normative language in statements describing the law and legal situations? This problem was formulated by Joseph Raz, who also claimed to have solved it. According to his well-known doctrine of ‘detached’ statements, normative legal statements can be informatively made by speakers who merely adopt, without necessarily sharing, the point of view of someone who accepts that legal norms are justified and ought to be followed. In this (...) paper I defend two theses. I argue, first, that the notion of a detached statement cannot be made to work, and that Raz’s problem is thus not thereby solved. But the problem itself, I also suggest, is a false one. (shrink)

When legal practice satisfies certain modest conditions of legitimacy, affirming the equal dignity of persons, the law is what it ought to be. It provides the morally appropriate basis for the reso...

In this paper I get clearer on the considerations that ought to inform the evaluation and development of medico-legal competency criteria—where this is taken to be a question regarding the abilities that ought to be needed for a patient to be found competent in medico-legal contexts. In the “Decisional Competency in Medico-Legal Contexts” section I explore how the question regarding the abilities that ought to be needed for decisional competence is to be interpreted. I begin by considering (...) an interpretation that takes the question to be asking about the abilities needed to satisfy an idealized view of competent decision-making, according to which decisional competency is a matter of possessing those abilities or attributes that are needed to engage in good or effective or, perhaps, substantially autonomous or rational decision-making. The view has some plausibility—it accords with the way decisional competency is understood in a number of everyday contexts—but fails as an interpretation of the question regarding the abilities that should be needed for decisional competence in medico-legal contexts. Nevertheless, consideration of why it is mistaken suggests a more accurate interpretation and points the way in which the question regarding the evaluation of medico-legal competency criteria is to be answered. Building on other scholarly work in the area, I outline in the “Primary and Secondary Requirements” section several requirements that decisional competence criteria ought to satisfy. Then, in the “Applying the Framework” section, I say something about the extent to which medico-legal competency criteria, as well as some models of decisional competency proposed in the academic literature, fulfil those requirements. (shrink)

This chapter considers whether legal requirements can constitute reasons for action independently of the merits of the requirement at hand. While jurisprudential opinion on this question is far from uniform, sceptical views are becoming increasingly dominant. Such views typically contend that, while the law can be indicative of pre-existing reasons, or can trigger pre-existing reasons into operation, it cannot constitute new reasons. This chapter offers support to a somewhat less sceptical position, according to which the fact that a (...) class='Hi'>legal requirement has been issued can be a reason for action, yet one that is underpinned by bedrock values which law is apt to serve. Notions discussed here include a value-based conception of reasons as facts ; a distinction between complete and incomplete reasons ; and David Enoch’s idea of triggering reason-giving. Following a discussion of criticism against the view adopted here, the chapter concludes by considering some more ‘robust’ conceptions of law’s reason-giving capacity. (shrink)

Applied ontology is the attempt to put to use the rigorous tools of philosophical ontology in the development of category systems which can be of use in the formalization and systematization of knowledge of a given domain. In what follows we shall sketch some elements of the ontology of legal and socio-political institutions, paying attention especially to the normativity involved in such institutions. We shall see that there is more than one type of normativity, but that this fact that (...) has often been ignored in standard attempts by philosophers to build ontologies of legal and other socio-political entities. In order to provide a sound system of categories for legal and socio-political institutions and entities, however, the manifold of normativity needs to be addressed. The classical examples of normative statements have been moral propositions; they do not merely describe states of affairs; they tell us how states of affairs ought to be. The distinction between how things are and how they ought to be is the basis of the distinction between fact and value. Analytic philosophers for a long time shunned discussions of normativity and ethics. They considered ethical statements as pseudo-propositions, or as expressions of pro- or con-attitudes of no theoretical significance.1 Nowadays, in contrast, prominent analytic philosophers discuss normative problems and there are important books written by such philosophers on topics such as law and justice. Here we pay attention to three seminal thinkers in this development: H. L. A. Hart, John Rawls, and John R. Searle in concerning ourselves especially with the way in which they deal with the issue of normativity. Hart is, within the context of recent analytic philosophy, the most important philosopher of law, Rawls the most.. (shrink)

In this short paper, I argue that legal philosophers ought to focus more than they have done so far on problems of legal reasoning. Not only is this a field with many philosophically interesting questions to consider, but it is also, in my estimation, the field in which legal philosophers can contribute the most to both the study and the practice of law. For even though reasoning and interpretation are at the center of what legal practitioners (...) and legal scholars do, neither legal practitioners nor legal scholars reason with the same care and precision as philosophers do. Against this background, I suggest that the following three types of questions regarding legal reasoning are especially worthy of serious consideration. The first is that of the possible relevance of the theory of reasons holism to legal reasoning in general. The second is the question of how to analyze legal statements in a way that does not undermine the rationality of legal reasoning. And the third is the question of whether legal arguments are to be understood as deductive arguments, or as inductive arguments, or both, and if so how. (shrink)

This review article examines the conceptual possibility of ‘cosmopolitan pluralism’, a jurisprudential theory developed by Paul Schiff Berman in his recent book, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders. Cosmopolitan pluralism is presented as a conceptual framework for understanding and managing situations of multiple legal orders which overlap and conflict. It seeks to avoid the pitfalls of both sovereigntist territorialism, which attempts to solve all legal disputes by exclusive application of the norms of some single (...) territorially-based jurisdiction, as well as universalism, which always looks for norms which transcend the differences of particular communities. Cosmopolitan pluralism maintains that conflicts ought to be preserved, not eliminated, and local variations should be recognized and accommodated to the greatest extent possible. Here I argue that while Berman has constructed a worthy and desirable goal for communities which find themselves in an increasingly globalized world, much work of an analytical kind remains to be done to show how such a goal is conceptually possible. As I shall attempt to demonstrate, Berman’s cosmopolitan pluralism asks for a radically revisionist understanding of the nature of law’s claim to authority, but it is not clear that such an account is available. (shrink)

Many philosophers believe there is no general, content-independent duty to obey the law. Yet at least some (and perhaps many) citizens and officials believe law makes a real difference—independently of its content and of prudential considerations—regarding what they should do. This paper offers an argument that vindicates the latter belief, even if skeptics are right in thinking that law cannot generate a general duty to obey. Under this argument, whether law makes a real practical difference, independently of its content and (...) of the sanctions threatened for its violation, can turn on whether individuals have adopted a commitment to law. The paper provides an account of such commitments and their impact on reasons for action. As I argue, the fact that a legal system complies with the demands of the rule of law is one important reason why individuals ought to, or at least might, adopt such a commitment. Compliance with the rule of law is thus not normatively irrelevant, even if it does not directly ground a moral duty to obey. (shrink)

This textbook introduces students to the various arguments for and against the prohibition of recreational drugs. The arguments are carefully presented and analyzed, inviting students to consider the competing principles of liberty rights, paternalism, theories of punishment, legal moralism, and the social consequences of drug use and drug laws. Meyers extends this examination by presenting alternatives to the prohibition/legalization dichotomy, including harm reduction, decriminalization, and user licensing or on-premise use. The presentation invites readers to think clearly about the reasons (...) and principles that should determine public policy and law, while also delving into the deeper philosophical questions underlying the drug prohibition debate. Is it morally wrong to use drugs? If so, would that be reason enough to make it illegal? Are there good reasons in favor of using illicit drugs? Do addicts lack free will, and if so, would it be unjust to punish them? What is (or ought to be) the purpose of punishment? Is the state justified in limiting the freedom of competent adults for their own good? What should be the goal of drug policy, reduced use or reduced harm? The purpose of the book is twofold. First, it is a review of the arguments for and against drug prohibition, a useful tool for policy makers, activists, and concerned citizens with an understanding of the relevant considerations for determining how we should reform our failing drug policy. Second, the book serves as a case study in the deeper issues of justice, the nature of law, rights and liberties, and the public good. Students studying applied ethics, political science, or public policy will benefit greatly from Meyers' approach. (shrink)

It is characteristic of many discussions in jurisprudence that the questions group around a relatively small selection of so-called basic legal concepts. Some authors explicitly maintain that the main task of a philosophy of law should be conceptual analysis. Authors expressing this view are usually classified as exponents of “analytical jurisprudence.” Within analytical jurisprudence itself there is considerable disagreement over such questions as what “analysis” is, what kind of methods the analyst ought to employ, etc. Most writers representing this (...) school, however, have in common a marked interest in terminological problems. Their discussions typically take as a point of departure certain verbal expressions, and their primary task is to clarify the actual, or desired, meaning of these expressions, either generally or in certain connections. (shrink)

In this paper I defend a liberal theory about how legal rules can and ought to be interpreted. The theory emerges from a critical examination of H. L. A. Hart's influential views on the limited but unavoidable indeterminacy of legal rules. I begin with a brief sketch of Hart's early theory (as it is traditionally understood) offering various suggestions as to how it might usefully be modified. Next, several possible objections to my modifications are sketched and criticized. Finally, (...) reasons are provided for supposing that the modified theory may well represent Hart's current position. (shrink)

Anglo-American general jurisprudence remains preoccupied with the relationship of legality to morality. This has especially been so in the re-reading of Lon Fuller’s theory of an implied morality in any law. More often than not, Fuller has been said to distinguish between the identity of a discrete rule and something called ‘morality’. In this reading of Fuller, however, insufficient attention to what is signified by ‘morality’. Such an implied morality has been understood in terms of deontological duties, the Good life, (...) naturalism, and subjectively posited values. Each of these interpretations has a shared common denominator: namely, the distinction between ‘is’ and ‘ought’, ‘facts’ and ‘values’. Legality is said to be nested in an ‘is’ world. An ‘is’ cannot be derived from an ‘ought’. This essay aims to press this distinction further. Fuller, I intend to argue, does indeed accept the is/ought distinction as have his commentators. The associations of the ‘oughts’ with deontological duties, the Good life, naturalism and subjective values, however, have been misdirected. This has been so because Fuller presupposed that legality was a matter of a spatial structure. Non-law was situated outside the structure. If a legislator or judge considered matters outside the structure as if they were binding upon jurists and, for that matter, upon members of the legal structure, the law was not binding. The crucial incident of the structure was the boundary of the structure. Fuller’s structuralist theory of law offers the opportunity to better understand what he signified by ‘the internal morality of law’. I shall privilege several elements of his theory: the relation of legal units to a structure, the nature of a structure, the constituents of a structure (territorial space, its pillars and its matter); the forms of the legal structure; the centrifugal and centripetal structures, the structure and traditional theories of morality, the role of the legal official in a structure, and why the internal knowledge in the structure is binding. Fuller especially privileged two features of a legal structure. The one was the boundary of the structure. The second concerned the exteriority of the boundary. Both features presupposed a territorial sense view of legal knowledge. The legal mind analysed any social problem through the map of such a sense of legal space. By concentrating upon the discrete rule in isolation of the implied structural boundary to which the rule referred, commentators have attributed been misdirected in their analyses of Fuller’s theory of law and morality. My argument in this respect will proceed as follows. In order to clarify Fuller’s senses of the morality of law, I shall first outline what he means by a ‘structure’. Second, how is the structure related to legal knowledge? Third, what are the various forms of the structure? Fourth, is the structure centrifugal or centripetal? And finally, why is the structure binding? (shrink)