Descriptive Jurisprudence

This is part of a proposed monograph on the Law, and jurisprudence and is to be used for understanding punishment through wergild to the early Modern and to even the post-modern. The paper is just a draft and in the future will be published as a monograph.

How do we ensure agents formulating legal statements are not systematically in error? In this paper I assume that the success of legal statements follows from the fact that propositions expressed by legal statements adequately represent legal reality. I argue that the content of legal statements hinges implicetly on the sources of law and methods in which we attribute meaning to these sources. In this regard, I identify the primary obstacle to the success of actions that consist of asserting legal (...) statements as a systematic failure to refer to the proper method of interpretation by the agents formulating these statements. The paper explores several solutions to this challenge, focusing on the solution explaining the success in referring to the proper method of interpretation in virtue of meta-interpretive considerations. Subsequently, the paper discusses a challenge to this solution following from the claim that there are many different theories of meta-interpretation, and there is no fact (neither natural, nor conventional or intentional, anchored in the collective consciousness of society), determining that one of them is more accurate than the other ones. Given all the intricacies, this study focuses on exploring a coherent framework for understanding how different interpretive methods and meta-interpretative theories can be evaluated and applied in legal practice. It seeks to articulate a model that accommodates the diversity of interpretations while striving for a reasoned consensus on how legal texts should be understood and applied. (shrink)

The first and only jurisprudence textbook to put African ideas, authors, and texts into conversation with those from the Western tradition, now with revised and expanded discussions of especially natural law theory, legal realism, postmodernism, critical legal studies, critical race theory, feminism, and the philosophy of punishment, along with new lists of additional readings and of web resources. 445 pp.

Recently, the United Kingdom Supreme Court decided that only natural persons can be considered inventors. A year before, the United States Court of Appeals for the Federal Circuit issued a similar decision. In fact, so have many the courts all over the world. This Article analyses these decisions, argues that the courts got it right, and finds that artificial inventorship is at odds with patent law doctrine, theory, and philosophy. The Article challenges the intellectual property (IP) post-humanists, exposing the analytical (...) and normative perils of their argumentation, and recommends against getting rid of the nominally central place of humans in the law. This response to IP post-humanism rests in equal measure on patent doctrine, legal causation, and the mythology which creates and justifies the law. (shrink)

Authors have written of antitrust’s demise in the face of blockchain technology which, supposedly, achieves the goals of the law, through private ordering, without a need for the law. Most importantly of all, public permissionless blockchains offer the vision of disintermediation – the end of the platform economy troubling many scholars today. At the same time, blockchain technology presents challenges to the doctrine and enforcement of antitrust. Finally, blockchain community governance allows for private ordering of antitrust, i.e., enforcement of rules (...) attempting to protect competition, which are at the same time illegal, not coming from the courts or agencies they constitute competition wrongs themselves. -/- I argue that all three claims are overstated and propose a synthesis of the law and code. The legal doctrine can be modified to tackle the novel technological landscape quite easily, with adoption of novel legal fictions. This is necessary since blockchains – both public and even more so private ones – while ingenious, do not remove a need for the law to protect the market from anti-competitive conduct. Indeed, even public ledgers have power structures allowing for abuse, while private blockchains may, in fact, allow for its proliferation. The law, thus, needs to find a regulatory access point to the ledgers. This is not an easy task: however, cooperation of blockchains with the law, and encoding of antitrust rules on the ledgers themselves, offers a possibility of a reconciliation between the law and the code. At the same time, this lends legitimacy to pro-competitive actions of those cyberspace communities and ensures a preservation of the rule of law. This is the blockchain antitrust synthesis. (shrink)

Several states have enacted specialized limited liability company legislation in an attempt to attract decentralized autonomous organizations. In this way, the regulatory competition debate surrounding states such as Wyoming, Tennessee, and Vermont, attempting to dethrone Delaware, has found a new battleground. According to Professor Lynn LoPucki, this will entail a regulatory race to the bottom, that is, a race to “laxity.” I disagree. In fact, deregulation has already been achieved in the traditional limited liability company form. The decentralized autonomous organization (...) limited liability company is no laxer or more attractive to investors, who will likely prefer the traditional limited liability company or even other entity forms, given the diversity of investors’ needs and aims. Moreover, some decentralized autonomous organization organizers may wish not to incorporate at all, hoping to avoid the law altogether. While increasingly risky, this strategy rests on the belief in the alegality liability shield, further diminishing the impact of the lex specialis approach. After analyzing the statutory developments and the scholarly and industrial commentary, I conclude that in decentralized autonomous organizations, as elsewhere, the regulatory race to the bottom is a fad. (shrink)

The Section 230 debate is a proxy for reevaluating constitutional fundamentals. The modern right and the modern left, both attacking Section 230, have abandoned liberalism, together with free speech, public private divide, and the politics of neutrality. Instead of believing in First Amendment value pluralism, each side of the spectrum wishes to realize their own positive normative vision for the political community which, today, is largely defined in the realm of digital culture. Each side recognizes the political other as an (...) enemy to their own utopia, wishing to control, censor, or simply become sovereign thereover. These existential politics of the “culture war” are formally circumscribed by liberal constitutionalism, including the state action doctrine. Regardless of any formal change of the First Amendment interpretation, the government will continue to exercise soft pressures on platforms, thus outsourcing censorship, and creating a novel regulatory dialectic of pressure and cooperation. The government, to become truly sovereign, realize its normative vision, and exclude the other, needs to delegate part of its sovereignty to virtual governments. The Constitution of the United States may thus be undergoing an informal amendment conducted through the private hands of internet intermediaries, which has largely gone unnoticed in the scholarly debate over Gonzalez v. Google, digital sovereignty, and platform regulation. (shrink)

Protection of emergent works is impossible. Without an author, there is no expression of ideas which can be original, and thus no copyrightable work. Indeed, the whole system of copyright law, its conceptual building blocks of idea-expression dichotomy, originality, authorship, and the concept of a protectable work operate in the notation of human creativity. Emergent works fall outside of copyright’s positive ontology, being akin to ideas, facts, or subject-matter predicated by technical considerations, rather than authorial creativity. In other words, they (...) do not exist as things in law and thus cannot as such be owned. Rather, like any idea, they can be transformed through creative expression of an author–– possibly becoming works, but also not being authorless or emergent anymore. This is argued as a matter of the U.S. and EU legal doctrines, the international framework, and copyright theory. (shrink)

Alex Sarch’s recent book, Criminally Ignorant: Why the Law Pretends We Know What We Don’t is a wonderfully rich work.1 Sarch provides and defends an explanatorily powerful theory of criminal culpab...

Legal philosophers make a number of bold, contentious claims about the nature of law. For instance, some claim that law necessarily involves coercion, while others disagree. Some claim that all law enjoys presumptive moral validity, while others disagree. We can see these claims in at least three, mutually exclusive ways: (1) We can see them as descriptions of law’s nature (descriptivism), (2) we can see them as expressing non-descriptive attitudes of the legal philosophers in question (expressivism), or (3) we can (...) see them as practical claims about how we should view law or order our society (pragmatism). This paper argues that we should understand these claims in the pragmatist way, as claims about how we should view law or order society. (shrink)

A persistent worry concerning conventionalist accounts of law is that such accounts are ill equipped to account for law’s special normativity. I offer a particular kind of conventionalist account that is based on the practice-dependent account of conventional norms I have offered elsewhere and consider whether it is vulnerable to the Normativity Objection. I argue that it isn’t. It can account for all the ways in which law can justly claim to be normative. While there are ways of being normative (...) that it cannot account for, it is an error to suppose that law is normative in any of those ways. (shrink)

Law and Authority Under the Guise of the Good, by Rodriguez-BlancoVeronica. Oxford : Hart Publishing, 2014. Pp. 215.

I examine the impact of the presence of anarchists among key legal officials upon the legal positivist theories of H.L.A. Hart and Joseph Raz. For purposes of this paper, an anarchist is one who believes that the law cannot successfully obligate or create reasons for action beyond prudential reasons, such as avoiding sanction. I show that both versions of positivism require key legal officials to endorse the law in some way, and that if a legal system can continue to exist (...) and function when its key officials reject the reason-giving character of law, then we have a reason to re-examine and amend legal positivism. (shrink)

Even though it offers a compelling account of the responsibility-component in the negligence standard—arguably the Holy Grail of negligence theory—Professor John Gardner is mistaken in conceptualizing the duty of care in negligence as a duty to try to avert harm. My goal here is to explain why and to point to an alternative account of the responsibility component in negligence. The flaws in conceiving of the duty of care as a duty to try are: failing to comport with the legal (...) doctrine of negligence and failing as a revisionary account for the law; overly burdening autonomy and restricting the liberty of thought; adversely affecting the prevention of negligent harm—the essence of the negligence standard—; and, raising severe probative difficulties. Moreover, the duty of care also does not give rise to what I call a de facto duty to try. The duty of care is better construed to require only certain conduct and not trying. Returning to the primary appeal and motivation for exploring the validity of equating the duty of care with a duty to try—searching for the responsibility-component in the negligence standard—I argue that the responsibility-component in negligence does not take the form of an obligation to try but rather has a conditional form, manifested in the conditions of applicability of the negligence standard. In other words, the negligence standard comprises a conduct-based as opposed to a combined action-/intent-based duty (such as a duty to try) as its duty of care, a duty that only applies to actors who possess the capacity to intentionally or knowingly comply with it, or, put differently, possess the capacity to try. (shrink)

Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity (...) conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond the state. This article aims to use legal positivism to conceptualize a transnational commercial law order. Prevailing positivist accounts at least implicitly condition legal order on state sovereignty. The article offers a cosmopolitan conception of legal positivism, in which the state is no longer an enabling condition for law. The cosmopolitan conception provides the means by which to adequately describe a transnational commercial law order. There are limits to the conceptual analysis this article provides, one of which is that it does not purport to evaluate the justice or morality of transnational legal order. But the cosmopolitan conception of legal positivism elucidated in this article stands on its own as a way of understanding a number of transnational legal orders other than commercial law. The attractiveness of the account is that it describes law as a human social practice even when it is not solely the product of the state, so that we do not have to rely on natural law theories to understand legal rules that states do not maintain. (shrink)

I argue that there is methodological space for a functional explanation of the nature of law that does not commit the theorist to a view about the value of that function for society, nor whether law is the best means of accomplishing it. A functional explanation will nonetheless provide a conceptual framework for a better understanding of the nature of law. First I examine the proper role for function in a theory of law and then argue for the possibility of (...) a neutral functional theory, addressing issues raised by Leslie Green, Stephen Perry, Michael Moore and John Finnis. (shrink)

Uses erotetic logic to model the courtroom objection "Improper Cross!". -/- Readers downloading the article should also please download the erratum et corrigendum, which is locally available.

Note: The author holds the copyright, and there was no agreement, express or implied, not to use a facsimile PDF. -/- Using erotetic logic, the paper defines the "the whole truth" in a manner consistent with U.S. Supreme Court precedent. It cannot mean "the whole story," as witnesses in an adversary system are permitted /only/ to answer the questions put to them, nor are they permitted to speculate, add irrelevant material, etc. Nor can it mean not to add an admixture (...) of falsity, as that is already included in "nothing but the truth," and, strictly speaking, in "the truth," as any such as admixture renders the whole thing false (given bivalence is presupposed) by &-introduction. (shrink)