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.

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)