Dan Priel’s research while affiliated with The Graduate Center, CUNY and other places

Contemporary legal philosophy is predominantly anti-naturalistic. This is true of natural law theory, but also, more surprisingly, of legal positivism. Several prominent legal philosophers have in fact argued that the kind of questions that legal philosophers are interested in cannot be naturalized, such that a naturalistic legal philosophy is something of a contradiction in terms. Against the dominant view I argue that there are arguable naturalistic versions of both legal positivism and natural law. Much of the essay is dedicated to showing that such views are possible: I identify naturalistic versions of a “natural law” view, a “positivist” view, as well as a “semi positivist” view, all of which are variants of the familiar (anti-naturalistic) views defended under these labels. I also offer a tentative argument in support of a naturalistic positivist view, one that has more in common with the views of Thomas Hobbes and Jeremy Bentham than with the anti-naturalistic positivist views popular these days.

Lon Fuller wrote extensively on freedom, but these writings are now largely unread. It is rare to find them mentioned, rarer still to see any attempt to relate their ideas to Fuller’s writings on law and legal theory. Perhaps reflecting the widely-accepted dichotomy between jurisprudence (conceptual) and political theory (normative), these works are thought irrelevant to discussions on the nature of law. Fuller himself, however, never accepted this dichotomy, so in this essay I try to offer an alternative reading of Fuller’s Morality of Law in light of his writings on freedom. I argue that Fuller’s book should be understood as part of a broadly "republican" view of freedom, which sees both law and freedom as the opposite of tyranny. I argue that there is considerable textual support both in The Morality of Law and in his writings on freedom for a normative account of the nature of law, one that does not exist peacefully alongside (let alone presuppose) a conceptual inquiry, but rather challenges the possibility of value-neutral conceptual analysis of law.

Many contemporary legal philosophers argue that general jurisprudence is "descriptive." I challenge this view in this essay by focusing on one familiar aspect of jurisprudence: persistent disagreements among legal philosophers. I argue that this fact is in tension with the claim that jurisprudence is descriptive. I consider several possible reconciliations of jurisprudential disagreements with descriptivism, but I argue that none of them succeeds. I then argue that persistent jurisprudential disagreements are easy to explain from within a normative framework. I conclude by suggesting that legal philosophers abandon descriptivism in favor of a view that more explicitly sees legal philosophy as part of normative political philosophy.

Tort scholars have in recent years defended a ‘traditional’ or ‘idealist’ view of tort law. In the context of negligence this implies that the holder of a duty of care must make an effort not to violate that duty. Idealists contrast this with a ‘cynical’ view that having a duty of care implies a legal requirement to pay damages for breach of that duty. This article defends the cynical view, arguing that it easily explains doctrines supposedly only explicable from an idealist perspective, and that many aspects of tort law are hard to reconcile with idealism. Empirical constraints often make idealism, even if it were desirable, unattainable, and cynicism is therefore the more honest view. The article argues that idealism is often undesirable, having costs, both pecuniary and non-pecuniary, which are often ignored, and that therefore it is sometimes better if certain torts take place (and are compensated) than if they do not happen.

The relationship between private and public law has long been the focus of critical attention, but recent years have seen the growing influence upon private law of statutory intervention, public regulation, corporate globalisation and constitutional and international human rights norms. Such developments increasingly call into question the capacity of private law reasoning to operate in isolation from public institutions and goals. Commencing with three contrasting visions of the nature and importance of distinctions between public and private in the modern day, this book traces a number of encounters between private law and 'public' values in key areas of private law doctrine, such as charity law, commercial law, tort law and class actions, across several jurisdictions. It examines the influence within these fields of public concepts and goals, such as behavioural modification, accountability and anti-discrimination norms, as well as the (reverse) influence that private law has upon ('public') human rights jurisprudence.

The aim of my comment on William Twining's recent book Globalisation and Legal Scholarship (2011) is to present and contrast two models of general (or universal) jurisprudence: the one favoured by Twining and the other adopted by Jeremy Bentham. Twining's model aims to be general by capturing the great variety of laws as they exist in the world; by contrast, Bentham argued that it is mostly prescriptive claims about law that can be universal. I argue that the descriptive model suffers from serious flaws: it either has to posit arbitrary boundaries between law and non-law (this is the problem from which HLA Hart's version of descriptive jurisprudence suffers) or it does away with all boundaries, resulting in a shapeless barrage of data (this is the problem with Twining's version of this model). By contrast, I argue, the Benthamite version of general jurisprudence is free from these problems. I then argue that Twining's descriptive approach leads him to various prescriptive recommendations, which I believe are unattractive.