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

Psychology, the study of the mind, was until late in the nineteenth century considered part of philosophy. An important catalyst in it gaining independence was when researchers in the field began adopting the experimental methods of the natural sciences. Fairly quickly, a gulf was created between the psychologists, who increasingly turned to ‘external’ means of enquiry, and the philosophers who continued to rely on introspection.1 These methods soon led to opposed substantive paradigms to the explanation of human nature: in psychology, behaviourism was the leading theory of the day; in philosophy it was theories that emphasised ‘understanding’, the examination of the workings of human reason as understood from ‘within’.

I argue that much of the work in analytic jurisprudence has been concerned with two questions that have not been adequately distinguished: (a) an inquiry about the concept of law, and (b) an explanation of the important features of the practice of law. It is often assumed that the two inquiries are the same. In this essay I distinguish the two and argue that work in psychology provides important insights about both. With regard to the first, I argue that much jurisprudential conceptual analysis is challenged by psychological work on concepts. With regard to the second, I argue that legal theorists would benefit from greater attention to what people’s ‘internal’ attitudes about law are by looking at psychological research on the matter. But psychology is not merely a challenge to contemporary jurisprudence: following the critique I suggest various ways psychological work can assist us in thinking on old jurisprudential questions like the dispute between positivism and natural law or the question of law’s normativity.

In the last three decades or so a prominent view among legal philosophers has been that while legal theory is evaluative because it requires making judgments of importance, it can remain morally neutral. This view, which I call the ‘orthodox view’, was first articulated by Joseph Raz and has since been supported by many other prominent legal philosophers. In this essay I examine it, and argue that it is indefensible. I begin by examining the terms ‘description’ and ‘evaluation’, and show that they are ambiguous in a way that most current discussion does not realize. I then rely on this analysis to develop several arguments against the orthodox view. I argue that defenders of the orthodox view have considered only one such argument, and that even with regard to this one their response is unsuccessful.

I argue in this essay that the popular “descriptive” approach to jurisprudence can be modeled after attempts at explaining natural phenomena by scientists. I present four assumptions that are underlying this approach to jurisprudence, which are similar to those of natural scientists. I then argue, however, that in the case of jurisprudence (and unlike the natural sciences) these assumptions contradict each other. After presenting my case I respond to several potential replies to my argument. If my arguments are correct, this shows that jurisprudential descriptivism is not just, as some have argued, unimportant, but rather that it is impossible. The suggests that those who claim to offer an account of the “nature” of law are in fact doing something else.

The recent litigation that ended in the House of Lords’ decision in Ashley v. Chief Constable of Sussex Police has brought the intentional torts back to the focus of judicial attention. Most commentary on this decision has focused on a few dicta that purport to support a reading the decision as concerned with private vindication of rights. In this article I examine this decision against a broad shift that has been taking place within tort law, and in particular the tort of negligence, away from ‘private law’ concern with the particular individuals involved in the litigation and towards broader ‘public’ concerns. After describing this shift in the case of negligence, I consider three possible private law interpretations of the role of the intentional torts. I argue that they are all deficient. I then highlight an aspect of Ashley that has been ignored by other commentators and which fits the public interpretation of tort law. I argue that this aspect provides a more convincing explanation for the decision, and one that aligns the intentional torts with the rest of tort law.

There has been a notable shift in the scope of negligence liability of public authorities in the Post War period. Notably there was a trend toward restriction of liability in the 1980s. This essay tries to explain why this happened not by focusing on changing legal formulas but by examining the political context of the law in this area. I begin the essay by demonstrating how changes in the attitudes toward the role of the state have led to the changes in the law in this area. I then go on to examine the impact of Thatcher’s ascent to power. Some commentators have suggested that the restriction in liability that took place during the years of her premiership was the result of the impact of Thatcherite ideology on the courts. I consider why such an ideology might be used (and has been used) to justify restriction of liability on public authorities, but argue that such arguments are quite different from those actually found in court decisions at the time. Though founded on ideas that may also be called broadly ‘conservative’, they do not reflect the distrust of state institutions typical in New Right writings, but are rather based on great respect for them, a view that reflects a different strand of conservatism. I demonstrate this attitude from the cases and offer some explanations for its possible adoption by the courts.

For a long time philosophy has been unique among the humanities for seeking closer alliance with the sciences. In this essay I examine the place of science in the context of jurisprudential debates, in particular in the context of the idea known as legal positivism. I argue that historically legal positivism has been advanced by theorists who were also positivists in the sense the term is used in the philosophy of social science, i.e. they were committed to the idea that the explanation of social phenomena should be conducted using similar methods to those used in the natural sciences. I then argue that around the 1960’s jurisprudence and in particular legal positivism have undergone change towards anti-positivism. Central to this trend was the idea that proper jurisprudential inquiry must be conducted from the “internal point of view.” What this view amounted to was an attempt combine a scientific-like aim of neutral description with a humanistic method of inquiry. It thus did not entirely abandon its links with scientific inquiry, but has radically changed their nature. I show that this stance had a negative impact of narrowing down the range of issues discussed and of the kind of method considered appropriate for discussing these questions, I then argue that to counter current these isolationist trends jurisprudence would benefit from reorientation of its midway position between science and the humanities in the opposite direction: its aims should be those traditionally associated with the humanities but its methodology should be much closer to that of the sciences.

In this essay I argue that to understand debates in jurisprudence one needs to distinguish clearly between four concepts: validity, content, normativity, and legitimacy. More specifically I show that debates between legal positivists and Dworkin should be understood not, as it is often said, as debates on the conditions of validity, but rather as debates on the right way of understanding the relationship between these four concepts. After presenting the two different ways in which legal positivists and Dworkin understand this relationship, I argue that the Dworkinian approach is superior to the positivist one. The positivist account begins with an attempt to explain the conditions of validity and to leave the question of assessment of valid legal norms to the second stage of inquiry. But though appealing, I argue that the notion of validity cannot be given sense outside a preliminary consideration of legitimacy.

Since the 1960's Ronald Dworkin has been arguing for a particular account of law that he believed was both explanatorily superior to the one offered by competing theories, and also the basis for normative arguments for producing right answers to legal questions. Justice in Robes collects Dworkin's most recent essays on this subject and thus provides the appropriate opportunity for assessing the legal theory of one of the more influential legal philosophers. In this Review I seek to offer a clearer account than appears in the book itself of Dworkin's project, and in this way offer a measured assessment of his work. My argument shows that there has been significant misunderstanding of Dworkin's project and that once it is cleared we can see that Dworkin's questions are not so far apart from those of other legal theorists. This approach has another benefit, as it ties together Dworkin's disparate discussions in Justice in Robes into a more coherent whole. Once the structure of Dworkin's argument is clarified, I move on to examine the details of his argument. Here, I argue, his arguments are often less convincing. Nevertheless, I argue, this need not lead us to wholesale rejection of his theory. I show how his ideas make more sense within a broader account of law that shows the limited but undeniable sense in which his arguments are correct, and inform our understanding of legal practice.

The paper considers Matthew Kramer's notion of free-floating norms as a way of defending inclusive legal positivism. I argue first that there are numerous counterexamples to Kramer's approach. I then go on to argue that Kramer's approach represents a prevalent, yet mistaken, approach in contemporary legal philosophy of trying to answer empirical questions by conceptual arguments. I conclude that this approach should be abandoned.