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Incorporationism, Conventionality, and the Practical Difference Thesis
Abstract
H.L.A. Hart's The Concept of Law is the most important and influential book in the legal positivist tradition. Though its importance is undisputed, there is a good deal less consensus regarding its core commitments, both methodological and substantive. With the exception of an occasional essay, Hart neither further developed nor revised his position beyond the argument of the book. The burden of shaping the prevailing understanding of his views, therefore, has fallen to others: notably, Joseph Raz among positivists, and Ronald Dworkin among positivism's critics. Dworkin, in particular, has framed, then reframed, the conventional understanding, not only of Hart's positivism, but of the terms of the debate between positivists and him. While standing on the sidelines, Hart witnessed the unfolding of not only a lively debate between positivists and Dworkin, but an equally intense one among positivists as to positivism's (and his) core claims. The most important debate has been between so-called inclusive and exclusive positivists: a debate as much about Hart's legacy as about the proper interpretation of legal positivism.
... The difficulty legal positivism faces in accounting for the normative component of law does not just bedevil the traditional forms of this school of thought. Indeed, ever since the The Concept of Law, where Hart explicitly acknowledges how central to law 1 This can be appreciated in a number of works by contemporary non-positivists, among whom Fuller (1969), Finnis (1980), Detmold (1984), Beyleveld and Brownsword (1986), Dworkin (1986;, Moore (1992;; Stavropoulos (1996), Alexy (1999a;1999b;, Murphy (2003;, Greenberg (2004;, and Simmonds (2008). 2 I am referring in particular to Hart (1994), Raz (1970;1975;1979;1986;, Postema (1982), Marmor (1992;), Coleman (1998, 2001a, 2001b, Shapiro (2002;forthcoming), and Kutz (2000;. 3 The reason why legal positivism finds it difficult to explain legal obligation can be framed in terms of the is-ought gap. ...
... On the other hand we are not presented with a compelling case for the argument that the 4 See Hart (1994, 82-91), who proceeds on the basis of these two components (coupled with a few other arguments) to show the inadequacy of John Austin's command theory of law, a theory that Hart argues to be constitutively unable to explain how law can guide us in general, and how it can do so specifically by generating obligations to act in the prescribed way, as opposed to obliging (i.e., forcing) one to do so. For a recent restatement of the thesis of the action-guiding dimension of law, see Coleman (2001a;2001b, 67-73 and 134-148) and Shapiro (2011, 113-115). ...
... This can be appreciated, for example, inColeman (2001a), who describes his own project as an attempt to coherently develop Hart's jurisprudence. ...
This paper offers a critical assessment of the way the influential “conception of law as a shared activity” explains the normative component of law in general and legal obligation in particular. I argue that the conception provides a bipartite account of legal obligation: we have full-blooded legal obligation, carrying genuine practical force, and legal obligation in a perspectival sense, the purpose of which is not to engage with us in practical reasoning, but simply to state what we ought to do if we should take the perspective of individuals subject to the jurisdiction of the legal system. This structural feature makes the whole account disjointed, giving it a lack of unity from which stem what I take to be its three main problems, namely, its limited scope, its failure to recognize the moral features of obligation when made to arise out of law as a shared activity, and its failure to illustrate the sense in which law is widely recognized to be a practical institution.
... Taking care not to presuppose that legal facts always depend on moral facts, positivists have pressed the possibility of a social convention that the legal facts pertaining to a particular jurisdiction are determined by both social facts and substantive moral facts: In some legal systems, as in the United States, the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values … (Hart 1994, 204;similarly, Lyons 1993;Waluchow 1994;Coleman 2001). In light of the possibility of genuine moral debate, such a convention would introduce a range of legal disagreement that is consistent with the law's ultimate dependence on social facts (e.g., Rodriguez-Blanco 2003). ...
Preprint of chapter in Collective Action, Philosophy and Law edited by Teresa Marques, Chiara Valentini (Routledge 2021) 69-88 >Abstract>>>>>>>>>>>>>
Legal positivism, which holds that the morality of the law is contingent on social facts, promises to take seriously our applications of legal concepts. The major challenge for positivists has been to provide an explanation of the phenomenon of legal disagreement. The leading positivist strategy, due to Scott Shapiro, is to appeal to the possible opacity of social plans. On establishing that this strategy is ultimately inadequate, I show that positivists must instead commit to the classical interpretive theory that a text's legal meaning is a function of its historically intended meaning. I then reconsider majoritarian doubts about the existence of collective legislative intentions by sketching two contrasting, non-majoritarian conceptions of collective agency. To match the claims of rival approaches to explain legal phenomena at face value, positivists must adopt some such alternative.
... In terms of the material part of good, the New Testament says: "God loves the one who willingly gives", "Who asks -give", "Everyone gives according to the disposition of the heart, -not with grief and not with compulsion", "Who sows sparingly, he reaps sparingly, who sows generously will reap abundantly", "If you received easily, then give easily". People often express these simple truths, but they are not always observed in everyday life (Coleman, 1998). ...
Any science striving for the creative development of its content cannot be indifferent to its past, to the history of its ideas, discoveries, and conclusions. This idea is entirely related to the philosophy of law - one of the most ancient sciences of law. With the development of humankind, with the formation of the first states, there is a gradual departure from mythology, which is being replaced by philosophy and religion as forms of social consciousness. Traditions of human life are fixed in their norms. Among the norms, the norms of law also function. In the ancient East states, in which powerful theocratic monarchies took shape, the first philosophical and legal views were also formed. The peculiarity of the development of the coun- tries of the Ancient East, when the state became the owner of the land, slaves, etc., leaves its imprint on the formation of political doctrines about the state aimed at substantiating the despotism and omnipotence of the monarch.
... See also Coleman (2001a), pp. 89-90, Coleman (1996, 2001b,Perry (2001). Couching the problems of law's authority and law's reason-giving capacity as problems of normativity can be traced largely toHart (1982). ...
According to the traditional textbook account, the coming into existence of States is a fact, depending on the realization of effective government over territory and people (so-called three-elements doctrine). Against this background, the present contribution argues that while the formation of States is a predominately fact-based phenomenon, it is not limited to a mere test of effectiveness. The formation of States has always incorporated elements of legitimacy and even more so by virtue of the development of international law in the wake of World War II. Issues of legitimacy become relevant in particular in extreme situations, i.e. in the event that the foundational principles of the contemporary international legal order as manifested in the concept of peremptory norms of general international law (jus cogens) are at stake.
In this paper I bring together Joseph Raz’s work on authority and his work on the rule of law, arguing that his commitments about authority entail the conclusion that the rule of law is integral to the very nature of law. I take no position on whether Raz is right about the nature of law. Instead, I aim to mount an entirely internal critique of Raz’s work that will show that if Raz is right about authority, he is committed to a view about the rule of law which he has explicitly disavowed.
In this essay both the facts/values and facticity/normativity divides are considered from the perspective of global semiotics and with specific regard to the relationships between legal meaning and spatial scope of law’s experience. Through an examination of the inner and genetic projective significance of categorization, I will analyze the semantic dynamics of the descriptive parts comprising legal sentences in order to show the intermingling of factual and axiological/teleological categorizations in the unfolding of legal experience. Subsequently, I will emphasize the translational and enactive cognitive disposition underlying the construction of the second premise of the so-called judiciary syllogism and thereby the untenability of the idea that ‘law makes its facts.’ Hence, I will try to bring to the fore the cultural pre-assumptions encapsulated in the positivistic and therefore also formalistic or analytical approaches to legal experience and the loss of their inner consistency when legal experience confronts the phases and major changes of global semiotics. Finally, I will strive to relativize the opposition between the positivist and non-positivistic theories of law in view of an understanding of legal experience focused not only, or at least not primarily, on what ‘law is’ but also on ‘how’ it unwinds through, and in spite of, environmental and semantic transformations.
Essentialist legal theorists, represented by Raz, have depicted legal theory as a project of seeking necessary truths about law. They have, however, left the notion of necessity in their conception of legal theory largely unexplained. This paper explores four different notions of necessity in the philosophical literature and investigates two issues: first, what kind of necessity best fits the notion of necessity implicit in the essentialist conception of legal theory, and secondly, whether that notion of necessity is a coherent one that withstands philosophical challenges. I argue that the Putnamian notion of quasi-necessity best fits essentialist legal theorists’ self-understanding, but the notion of quasi-necessity does not withstand Ebbs’s two challenges. Meanwhile, although Plunkett’s theory of metalinguistic negotiation can be used to preserve a coherent notion of necessity that circumvents Ebbs’s two challenges, due to its broadly anti-essentialist underpinnings such a notion is unlikely to be congenial to essentialist legal theorists.
A century ago the pragmatists called for reconstruction in philosophy. Philosophy at the time was occupied with conceptual analysis, abstractions, a priori analysis, and the pursuit of necessary, universal truths. Pragmatists argued that philosophy instead should center on the pressing problems of the day, which requires theorists to pay attention to social complexity, variation, change, power, consequences, and other concrete aspects of social life. The parallels between philosophy then and jurisprudence today are striking, as I show, calling for a pragmatism-informed theory of law within contemporary jurisprudence. In the wake of H.L.A. Hart’s mid-century turn to conceptual analysis, “during the course of the twentieth century, the boundaries of jurisprudential inquiry were progressively narrowed.” ¹ Jurisprudence today is dominated by legal philosophers engaged in conceptual analysis built on intuitions, seeking to identify essential features and timeless truths about law. In the pursuit of these objectives, they detach law from its social and historical moorings, they ignore variation and change, they drastically reduce law to a singular phenomenon—like a coercive planning system for difficult moral problems ² —and they deny that coercive force is a universal feature of law, among other ways in which they depart from the reality of law; a few prominent jurisprudents even proffer arguments that invoke aliens or societies of angels.
Legal positivism is one of the fundamental theories of jurisprudence studied in law and related fields around the world. This volume addresses how legal positivism is perceived and makes the case for why it is relevant for contemporary legal theory. The Cambridge Companion to Legal Positivism offers thirty-three chapters from leading scholars that provide a comprehensive commentary on the fundamental ideas of legal positivism, its history and major theorists, its connection to normativity and values, its current development and influence, as well as on the criticisms moved against it.
Legal positivism is one of the fundamental theories of jurisprudence studied in law and related fields around the world. This volume addresses how legal positivism is perceived and makes the case for why it is relevant for contemporary legal theory. The Cambridge Companion to Legal Positivism offers thirty-three chapters from leading scholars that provide a comprehensive commentary on the fundamental ideas of legal positivism, its history and major theorists, its connection to normativity and values, its current development and influence, as well as on the criticisms moved against it.
Legal positivism is one of the fundamental theories of jurisprudence studied in law and related fields around the world. This volume addresses how legal positivism is perceived and makes the case for why it is relevant for contemporary legal theory. The Cambridge Companion to Legal Positivism offers thirty-three chapters from leading scholars that provide a comprehensive commentary on the fundamental ideas of legal positivism, its history and major theorists, its connection to normativity and values, its current development and influence, as well as on the criticisms moved against it.
Legal positivism is one of the fundamental theories of jurisprudence studied in law and related fields around the world. This volume addresses how legal positivism is perceived and makes the case for why it is relevant for contemporary legal theory. The Cambridge Companion to Legal Positivism offers thirty-three chapters from leading scholars that provide a comprehensive commentary on the fundamental ideas of legal positivism, its history and major theorists, its connection to normativity and values, its current development and influence, as well as on the criticisms moved against it.
Scott Shapiro, a prominent defender of exclusive legal positivism—exclusivism—has intriguingly (re)introduced a logical principle, the endorsement and rejection of which he (I take it) supposes can helpfully distinguish exclusivism from its contrary, inclusive legal positivism—inclusivism. It is an intriguing thought that principles pitched at such a high level of abstraction as this could distinguish between the two versions of positivism. My aim will be to test whether this principle—and associated principles—can do such distinguishing work.
El objetivo de este escrito es hacer una esbozar la evolución del positivismo jurídico desde las críticas de Dworkin. La idea principal es servir como una introducción a este importante debate de la Filosofía del Derecho. El autor parte de una elucidación del Problema Original, analiza las respuestas incluyentes y excluyentes del Positivismo y Finaliza con la tesis que fueron los principios los causantes de la redefinición del Positivismo Jurídico.
The author shows that the existence of law in a given society requires the presence of a unitary practice of identification of rules (a rule of recognition). It is also argued that the best way of understanding this rule is to see it as a constitutive convention, which allows the autonomous identification of the law of a particular community. According to this author, just as the existence of money requires the belief that it exists, the existence of a legal system depends ultimately on a set of beliefs shared by the relevant persons. After developing this position, a series of recurrent criticisms of conventionalist positions is reviewed with the aim of rejecting them. These criticisms are: if the rule of recognition is understood as a convention then it cannot account for the normative nature of the convention, nor for the presence of principles in legal systems, nor for the disagreements between lawyers; finally, the problem of the arbitrariness of the rule of recognition and its alleged banality is addressed.
In his contribution, Jorge L. Rodríguez criticizes the position that Marmor has defended in previous works. Basically the criticism is that, according to Rodríguez, it cannot be the case that a convention is constitutive, and therefore the rule of recognition cannot be of this type. According to this author, the concept of convention employed by Marmor is too weak: it leads to consider a rule as conventional even though all the members of a community follow it because they consider that it is correct, and a rule may not be considered as conventional even though everyone is following it just because others follow it. Moreover, it seems to be pointless to speak of constitutional conventions inasmuch as, according to Rodríguez, the arbitrary character of conventions is incompatible with the constitutive character of a rule. As a consequence, Marmor’s view would be affected by an internal inconsistency because, following his own definitions, the constitutive character of the rule of recognition is incompatible with its conventional character.
Dworkin famously argued that Hart’s practice theory is not able to give an account of legal duties and therefore that it is a bad theory of law. Conventions were then proposed as a substitute for the practice theory capable of showing the existence of legal duties. In this text Arena examines two different conventionalist strategies that have been proposed as answers to Dworkin’s criticisms—Marmor’s constitutive conventionalism and Postema’s constructive conventionalism. Arena claims that both proposals remain captive of Dworkin’s premises and that this has led them to overstate the cooperative dimension of legal practice. Dworkin’s argument is based on the premise that without explaining the existence of legal duties a theory would be unable to explain some essential features of law: judges’ statements of duty and disagreements. Arena argues against this premise by claiming, first, that judges’ statements of duty are just a projection of their attitudes both on the action considered mandatory or forbidden and on the conventional interpretative method they use to ground that statement. Second, that this projectivist perspective may account for judges’ talk in terms of truth value and for their disagreements. On the one hand, by following a quasi-realist schema, Arena claims that judges must earn their right to talk about truth and, on the other hand, he claims that judges’ disagreements are genuine disagreements in attitudes.
According to Sánchez Brigido, after abandoning the idea that the rule of recognition is a coordinative convention in Lewis’s sense, Postema offered a new, more sophisticated version of conventionalism. According to this new version, the rule of recognition should be understood, not as a coordinative convention, but as a cooperative convention. The paper examines Postema’s cooperative convention account. It claims that it is unsuccessful for a crucial reason: certain features of officials’ practice show that there might be a practice constitutive of a rule of recognition but there need not be any cooperative problem to be solved. Uncertainty, interdependence and mutually conditional preferences (the conditions that define a cooperative problem) need not be present. The paper also suggests that a proper account of rules of recognition should recognize that the practice constituted by such a rule should be understood, not as a cooperative convention, but as a special type of institutional practice.
El artículo se propone presentar un panorama introductorio de los compromisos metodológicos y conceptuales de la teoría del derecho de Joseph Raz, con miras a abordar las particularidades del relacionamiento entre el derecho y la moral desde la perspectiva del autor. Raz es un representante del positivismo jurídico como teoría del derecho y, además, sin afectar con ello el carácter positivista de su teoría, entiende que no existe un punto de vista jurídico diferenciado del punto de vista moral. Uno de los propósitos de su teoría del derecho es proveer una explicación de la naturaleza del tipo de institución social designada por nuestro concepto de derecho.
This thesis analyses the impact of the European Integration Project on private law. While the impact of EU law on private law throughout negative integration created European Private Meta-law, and throughout positive integration evolved to European Private law, this thesis claims that EU law has recently moved a step further in regulated markets by creating selfstanding European Private law. Self-standing European Private law is a normative system of rules at supranational level in which its semantically rigid legal norms suggests the intrusion of EU law into the private order of contractual parties with minor divergences within and among national legal systems. This analytical model explains the legal phenomenon of intrusion and substitution, which is different than the phenomenon of divergence, what has so far been the main focus of legal scholars in comparative private law and approaches to Harmonization. To define and identify self-standing European private law, this thesis proposes a systematic understanding of EU law from what H.L.A. Hart conceptualizes as the Internal Point of View. It contextualizes the private law dimension of EU energy law through a discussion of primary and secondary rules and, most importantly, the linguistic framework of analytic philosophy. In so doing, this thesis claims the constitutive element of self-standing European Private law takes shapes when EU law, through governance modes of lawmaking and enforcement at the EU level, creates a set of mandatory rules applied to private relationships, of which the semantic texture of its language leaves minor space for divergent interpretation and implementation by legal official and market actors. To prove the emergence of a self-standing European Private Law, EU energy Law is the blueprint to test the claim. The thesis pursues a socio-legal investigation on how the private law dimension of EU energy law has changed over three decades of market integration and affected two key market transactions in energy markets: transmission service contracts in electricity, and natural gas supply contracts.
As considerações apresentadas na presente pesquisa giram em torno da desmistificação do senso comum e dos discursos falaciosos sobre a teoria positivista do direito, a qual é alvo de más compreensões e interpretações por parte da academia, de forma que se busca demonstrar que tal doutrina, atualmente, a despeito dos questionamentos, não foi superada. Para isto, por intermédio de pesquisa teórica e a partir do estudo de autores da filosofia analítica, este artigo aborda, nos seus três capítulos, as reformulações do positivismo jurídico, a relação contingente entre direito e moral e a reformulação - e não a superação definitiva - da perspectiva positivista de se conceber, compreender e aplicar o direito. O trabalho apresenta como hipótese que não se está diante de uma transformação inovadora e ruptural na forma de se interpretar e de se conceber o direito, tal como proposta pela doutrina do neoconstitucionalismo, mas sim, está diante de reformulações e adaptações do próprio positivismo jurídico, transmudado no refinado positivismo jurídico inclusivo, sendo este capaz de conciliar direito e moral por meio de uma relação contingencial.
This article surveys methodological matters that shape, drive, and plague analytic legal philosophy. Section 2 briefly explicates conceptual analysis, analytic definitions, and family resemblance concepts. It also argues that central cases are used in more than one way. Section 3 presents criticisms of those concepts and methods, and suggests that some of these difficulties are due to the lack of a shared paradigm regarding a counterexample’s impact. Section 4 explains “meta- theoretical” desiderata. It contends that, to date, legal philosophical appeals to such norms have not been as helpful as some suggest. Section 5 returns to the issue of concept selection by addressing whether legal theorising is an invariably “normative” enterprise. It argues that certain “normativist” methodologies, such as Dworkin’s constructive interpretation and Finnis’ appeal to the central case of the internal point of view, are unnecessary.
Algunos de los más relevantes filósofos del derecho de los últimos años, como Carlos S. Nino y Ronald Dworkin, han defendido que hay una pluralidad de conceptos de Derecho. Scott Shapiro ha sostenido una posición especialmente relevante acerca de ello: la palabra ‘Derecho’ es sistemáticamente ambigua, pues a veces designa un conjunto de normas y otras veces una organización social. Esta es precisamente la tesis criticada en el trabajo. Se argumenta, basándose en determinada literatura filosófica acerca de los conceptos, que los conceptos de objetos sociales de carácter intencional (como es el derecho, pero también las obras literarias por ejemplo) contienen una dimensión social y una dimensión significativa, normativa en el caso del derecho. El mismo concepto de Derecho expresa una dimensión social y una normativa imbricadas entre sí.
En este artículo exploro algunos de los tópicos vinculados tradicionalmente con el problema de la normatividad del derecho: autonomía, racionalidad, relevancia práctica, razones para la acción y autoridad. Trataré de construir un marco conceptual que refleje la complejidad teórica del problema y las posiciones filosóficas desde los cuales puede ser abordado. Particularmente, me centraré en el análisis de las asunciones filosóficas relacionadas con ciertas posturas y la revisión de su coherencia mutua.
This essay examines the ambition to taxonomize law and the different methods a legal taxonomer might employ. Three possibilities emerge. The first is a formal taxonomy that classifies legal materials according to rules of order and clarity. Formal taxonomy is primarily conventional and has no normative implications for judicial decision-making. The second possibility is a function-based taxonomy that classifies laws according to their social functions. Function-based taxonomy can influence legal decision-making indirectly, as a gatekeeping mechanism, but it does not provide decisional standards for courts. Its objective is to assist in analysis and criticism of law by providing an overview of the body of legal doctrine. The third possibility is a reason-based taxonomy that classifies legal rules and decisions according to the moral principles or “legal principles” thought to justify them. Reason-based taxonomy of this type offers courts a set of high-level decisional rules drawn from legal data. Its objective is to guide courts in deciding new cases and evaluating precedents. A predominantly formal taxonomy facilitates legal analysis and communication. A functional taxonomy can assist those who make and apply law by providing a purposive overview of the field. Reason-based taxonomy may be useful to lawmakers but is unhelpful when offered as a guide to adjudication of disputes.
Prominent analytical jurisprudents assert that a theory of law consists of necessary, universal truths about the nature of law. This often-repeated claim, which has not been systematically established, is critically examined in this essay. I begin with the distinction between natural kinds and social artifacts, drawing on the philosophy of society to show that necessity claims about law require a fundamental reworking of basic understandings of ontology and epistemology, which legal philosophers have not undertaken. I show law is a poor fit for a priori and a posteriori knowledge. I distinguish between universal application and universal truth, showing the former is sound while the latter is not. I expose the implications that follow from the initial selection of the central case of law, demonstrating that this choice must be justified, and I reveal two ways analytical jurisprudents shield their theories of law from refutation. This analysis raises significant doubts about the claim by analytical jurisprudents that they are identifying necessary, universal truths about the nature of law.
The weak natural law thesis asserts that any instance of law is either a rational standard for conduct or defective. At first glance, the thesis seems compatible with the proposition that the validity of a law within a legal system depends upon its sources rather than its merits. Mark C. Murphy has nonetheless argued that the weak natural law thesis can challenge this core commitment of legal positivism via an appeal to law’s function and defectiveness conditions. My contention in the current paper is that in order to make good on the challenge, the defender of the weak natural law thesis should appeal explicitly to the common good, understood as the principal normative reason in the political domain. In section I I outline the main implications of the weak natural law thesis and clarify a common misunderstanding regarding its explanatory role. Section II then argues for the indispensability of the common good to the natural law jurisprudential thesis on the grounds that it has an essential role to play in a natural law account of law’s defectiveness conditions and the presumptive moral obligatoriness of legal norms. Finally, in section III I examine the compatibility of a strengthened version of the weak natural law thesis with legal positivism in light of the centrality of the common good to the natural law jurisprudential position.
This book presents an answer to the question of why modern legal institutions and the idea of citizenship are important for leading a free life. The majority of views in political and legal philosophy regard the law merely as a useful instrument, employed to render our lives more secure and to enable us to engage in cooperate activities more efficiently. The view developed here defends a non-instrumentalist alternative of why the law matters. It identifies the law as a constitutive feature of our identities as citizens of modern states. The constitutivist argument rests on the (Kantian) assumption that a person’s practical identity (its normative self–conception as an agent) is the result of its actions. The law co–constitutes these identities because it maintains the external conditions that are necessary for the actions performed under its authority. Modern legal institutions provide these external prerequisites for achieving a high degree of individual self–constitution and freedom. Only public principles can establish our status as individuals who pursue their life plans and actions as a matter of right and not because others contingently happen to let us do so. The book thereby provides resources for a reply to anarchist challenges to the necessity of legal ordering.
If ever there were an opportunity to ‘spring-clean’ jurisprudence of its most cumbersome words, ‘normativity’ would be high on the list. It sounds ugly, and it’s come to be associated with a frustratingly vague array of questions.
I said in Chap. 1 that the realism espoused by the Scandinavian realists is to be understood as a commitment to naturalism, conceived as the ontological claim that everything is composed of natural entities whose properties determine all the properties of whatever it is that exists, or as the methodological (or epistemological) claim that the methods of justification and explanation in philosophy must be continuous with those in the sciences, or as the semantic claim that an analysis of a concept is philosophically acceptable only if the concept thus analyzed refers to natural entities or properties.
In this chapter, I distinguish between ontological, methodological, and semantic naturalism and between a broad and a narrow conception of semantic naturalism, and I argue that the broad conception of semantic naturalism is difficult to square with (what I refer to as) the classical conception of conceptual analysis. I also argue that Olivecrona is an ontological naturalist, that he is not a semantical naturalist, and that he is probably not a methodological naturalist either. In addition, I discuss Alf Ross’s analysis of the concept of valid law, in order to gain a better understanding of both methodological and semantic naturalism, and I consider the question whether a commitment to naturalism is compatible with a commitment to conceptual analysis as a central philosophical task.
It is well known that over the last two or three decades the idea of a general jurisprudence as a purely descriptive enterprise aiming at elucidating the nature of law through conceptual analysis has been challenged from different fronts. So different, in fact, that it is distracting to characterize the current discussions as opposing proponents of a “descriptive jurisprudence”, on the one hand, against those that hold that jurisprudence has to be “normative”, on the other. In the context of the discussion about the methodology of jurisprudence, both “descriptive jurisprudence” and “normative jurisprudence” turn out to be crude and potentially misleading labels which mistakenly suggest that there is a single divide between two clearly defined and internally homogeneous positions (which is not the case) that are at any rate antagonistic (which, depending on the way these labels are understood, need not be the case).
International Legal Positivism in a Post-Modern World provides fresh perspectives on one of the most important and most controversial families of theoretical approaches to the study and practice of international law. The contributors include leading experts on international legal theory who analyse and criticise positivism as a conceptual framework for international law, explore its relationships with other approaches and apply it to current problems of international law. Is legal positivism relevant to the theory and practice of international law today? Have other answers to the problems of international law and the critique of positivism undermined the positivist project and its narratives? Do modern forms of positivism, inspired largely by the theoretically sophisticated jurisprudential concepts associated with Hans Kelsen and H. L. A. Hart, remain of any relevance for the international lawyer in this 'post-modern' age? The authors provide a wide variety of views and a stimulating debate about this family of approaches.
This book debates the issues ranging from theoretical jurisprudential concerns to less abstract constitutional ones, and how our understanding and valuation of the most topical and important issues in law is affected-often substantially - by the vantage or standpoint which we adopt. It provides a host of insights into many of today's important debates in jurisprudence and constitutional law and explores how judges ought to interpret.
Non-state law is playing an increasing role in both public and private ordering. Numerous organizations have emerged alongside the nation-state, each purporting to provide their members with rules and norms to govern their conduct and organize their affairs. The nation-state increasingly finds itself sandwiched, between two broad and contrasting categories of non-state law. The first - law above the state - captures legal systems that function across the territorial borders of nation-states. The second category - law below the state - includes forms of local customary, religious, and indigenous law. As these forms of non-state law persist and proliferate alongside the nation-state, the relationship between state and non-state law becomes more complex, multifaceted, and tense. This volume addresses this relationship considering whether and to what extent state and non-state law can coexist and how each form of law seeks to influence as well as transform the other.
The fragmentation and hybridisation of governance has been a preoccupation of public lawyers and others for some time. Commentators have focused variously on the internal and organisational fragmentation of the executive (the development of next step agencies, for example, and the growth of new control relationships as a consequence of the implementation of strategies of new public management), on the fragmentation and hybridisation of service delivery (contracting-out, public-private partnerships, the private finance initiative), and on the fragmentation and hybridisation of regulation. Concerns have been both to map and analyse the changing nature of the exercise of governance functions and to address the issues of accountability to which such changes have given rise.5 This article focuses on regulation and suggests that we build on existing analyses of regulation as a decentred and fragmented activity by exploring the notions of regulatory capacity and regulatory enrolment, and provides illustrations using examples from the current system of UK financial services regulation. In focusing on regulatory capacity and regulatory enrolment, it is suggested, an analytical framework can be developed which has both prescriptive and descriptive dimensions, and which may facilitate thinking on how regulatory functions are and should be distributed between diverse actors in a regulatory system.
The explanation of the obligation to obey the law given by Inclusive Legal Positivism, especially by Jules Coleman, is the main subject of this paper. After that, this work deals with some critical observations in order to achieve a more general conclusion about the issue.
The author is widely recognized as the leading philosophical interpreter of the jurisprudence of American Legal Realism, as well as the most influential proponent of the relevance of the naturalistic turn in philosophy to the problems of legal philosophy. This volume collects newly revised versions of ten of his best-known essays, which set out his reinterpretation of the Legal Realists as prescient philosophical naturalists; critically engage with jurisprudential responses to Legal Realism, from legal positivism to Critical Legal Studies; connect the Realist program to the methodology debate in contemporary jurisprudence; and explore the general implications of a naturalistic world view for problems about the objectivity of law and morality. He has supplied a lengthy new introductory essay, as well as postscripts to several of the essays, in which he responds to challenges to his interpretive and philosophical claims by academic lawyers and philosophers. © Brian Leiter, 2007, except where indicated. All rights reserved.
This book revisits the theory of the sources of international law from the perspective of formalism. It critically analyzes the virtues of formalism, construed as a theory of law ascertainment, as a means of distinguishing between law and non-law. The theory of formalism is re-evaluated against the backdrop of the growing acceptance by international legal theorists of the blurring of the lines between law and non-law. At the same time, the book acknowledges that much international normative activity nowadays takes place outside the ambit of traditional international law and that only a limited part of the exercise of public authority at the international level results in the creation of international legal rules. The theory of ascertainment that the book puts forward attempts to dispel some of the illusions of formalism that accompany the delimitation of customary international law. It also sheds light on the tendency of scholars, theorists, and advocates to deformalize the identification of international legal rules with a view to expanding international law. The book seeks to revitalize and refresh the formal identification of rules by engaging with some tenets of the postmodern critique of formalism. As a result, the book not only grapples with the practice of law-making at the international level, but it also offers broad theoretical insights on international law, dealing with the main schools of thought in legal theory (positivism, naturalism, legal realism, policy-oriented jurisprudence, and postmodernism).
This book argues that a silent axis of the unconscious world rests largely undiscovered. It recasts foundational concepts in the psychology of Freud, Jung, Carol Gilligan and R.D. Laing, as well as in cognitive science, to highlight this hidden unconscious axis: primordial spaces of diametric and concentric structures. The author generates fresh approaches to understanding the philosophy of early Heidegger and Derrida, with the idea of cross-cultural diametric and concentric spaces fuelling a radical reinterpretation of early Heidegger's transcendental project, and challenging a postmodern consensus that reduces truths and experiences to mere socially constructed playthings of culture. The book, which also examines projected structures in modernist art, suggests a systematic refashioning of many Western assumptions, but it is more than a deconstruction. It also attempts to offer a new interplay between structures and meaning, as a spatial phenomenology. This significant expansion of the boundaries of human subjectivity opens alternative pathways for imagining what it means to be human, in order to challenge the reduction of experience to instrumental reason. © Peter Lang AG, International Academic Publishers, Bern 2012. All rights reserved.
Nowhere has H.L.A. Hart's influence on philosophical jurisprudence in the English-speaking world been greater than in the way its fundamental project and method are conceived by its practitioners. Disagreements abound, of course. Philosophers debate the extent to which jurisprudence can or should proceed without appeal to moral or other values. They disagree about which participant perspective—that of the judge, lawyer, citizen, or “bad man”—is primary and about what taking up the participant perspective commits the theorist to. However, virtually unchallenged is the view that jurisprudence is fundamentally interpretive or “hermeneutic”; that it takes for its subject a certain kind of social practice, constituted by the behavior and understandings of its participants; that its task is to explain this practice and its relations to other important social practices; and that it can properly be explained only by taking full account of participant understandings. It is, perhaps, some measure of the hegemony of Hart's influence that Ronald Dworkin mounts his fundamental challenge to Hart's positivism squarely from within this jurisprudential orthodoxy. Dworkin may have exceeded the limits of the method as Hart conceived it, but, as Stephen Perry has argued, “the seeds of Dworkin's strong version of inter-pretivism were sown by Hart himself.”
This book expands the argument introduced in the Clarendon Lectures in Law presented at Oxford University in the fall of 1998. It introduces and attempts to sustain two different kinds of arguments; the aim is not only to defend a range of views of substantive issues in legal theory, but also to vindicate by example a certain methodological approach to such issues — an approach whose fundamental commitments are those of philosophical pragmatism. The book advances three main theses. Part I defends the view that the core of tort law is best understood as embodying the principle of corrective justice. Part II defends a version of inclusive legal positivism. Part III defends what has been called ‘descriptive jurisprudence’.
11 Ga. L. Rev. 969
The article was initially presented as the spring Sibley Lecture on April 14, 1977.
Through literary and historical references Professor Hart discusses basic principles of American law and judicial tradition.
The supplementary document is the original typed manuscript with text revisions by Professor Hart.
This book shows how traditional problems of philosophy can be understood more clearly when considered in terms of law, economics, and political science. The discussion is divided into four sections. The first offers a new version of legal positivism and an original theory of legal rights. The second critically evaluates the economic approach to law, while the third considers the relationship of justice to liability for unintentional harms and to the practice of settling disputes rather than fully litigating them. Finally, the book explores formal social choice in democratic theory, the relationship between market behaviour and voting, and the view that morality itself, like law, is a solution of the problem of market failure.
Even to disagree, we need to understand each other. If I reject what you say without understanding you, we will only have the illusion of a disagreement. You will be asserting one thing and I will be denying another. Even to disagree, we need some agreement.
In Law's Empire Prof. Ronald Dworkin has advanced a new theory of law, complex and intriguing. He calls it law as integrity. But in some ways the more radical and surprising claim he makes is that not only were previous legal philosophers mistaken about the nature of law, they were also mistaken about the nature of the philosophy of law or jurisprudence. Perhaps it is possible to summarize his main contentions on the nature of jurisprudence in three theses: First, jurisprudence is interpretive: “General theories of law… aim to interpret the main point and structure of legal practice” (LE, 90). Second, legal philosophy cannot be a semantic account of the word “law.” Legal philosophers “cannot produce useful semantic theories of law” (id.). Third, legal philosophy or jurisprudence “is the general part of adjudication, silent prologue to any decision at law” (id.).
Naturalism and Naturalized Jurisprudence
- Leiter Brian
The Difference That Rules Make
- Shapiro Scott
Law's Empire, supra note 5
- Dworkin
Intepretation and Methodology in Legal Theory
- Perry Stephen
Second Thoughts and Other First Impressions
- Coleman Jules