Normativity of Law

Legal philosophers distinguish between a static and a dynamic interpretation of law. The former assumes that the meaning of the words used in a legal text is set at the moment of its enactment and does not change with time. The latter allows the interpreters to update the meaning and apply a contemporary understanding to the text. The dispute between these competing theories has significant ramifications for social and political life. To take an example, depending on the approach, the term (...) “cruel punishment” used in the US Constitution will be given an 18th century meaning or a contemporary one. -/- The philosophy of language seems to provide greater support to the static approach to legal interpretation. Within this approach the lawmaker is perceived as a speaker and legal texts are interpreted as utterances. As a consequence, interpretation is a quest for the speaker/lawmaker’s intention or the public meaning that prevailed at the time of enactment. Neither the intention nor the public meaning are considered to have changed in time. -/- In this paper I argue that the philosophy of language provides the dynamic approach with an equally robust support as the static one. This support comes from an externalist perspective in semantics, rooted in philosophical pragmatism and supported by Ruth Millikan’s concept of meaning as proper function. Grounding the dynamic approach in a well-founded linguistic philosophy rises to the challenge presented by the originalists’ declaration that “it takes a theory to beat a theory”. (shrink)

This paper examines the debate on AI legal personhood, emphasizing the role of path dependencies in shaping current trajectories and prospects. Three primary path dependencies emerge: prevailing legal theories on personhood (singularist vs. clustered), the actual participation of AI in socio-digital institutions (instrumental vs. non-instrumental), and the impact of technological advancements. We argue that these factors dynamically interact, with technological optimism fostering broader attribution of the legal entitlements to AI entities and periods of scepticism narrowing such entitlements. Additional influences include (...) regulatory cross-linkages (e.g., data privacy, liability, cybersecurity) and historical legal precedents. Current regulatory frameworks, particularly in the EU, generally resist extending legal personhood to AI systems. Case law suggests that without explicit legislation, courts are unlikely to grant AI legal personhood on their own, although some authors suggest that the courts can do so. For this to happen, AI systems would first need to prove de facto legitimacy through sustained participation within socio-digital institutions. The chapter concludes by assessing near- and long-term prospects for legal personification, from generative AI and AI agents in the next 5–20 years to transformative possibilities such as AI integration with human cognition via Brain-Machine Interfaces in a more distant future. (shrink)

The liberal international legal order faces a legitimacy crisis today that becomes visible with the recent anti-internationalist turn, the rise of populism and the recent Russian invasion of Ukraine. Either its authority or legitimacy has been tested many times over the last three decades. The article argues that this anti-internationalist trend may be read as a reaction against the neoliberal form taken by international law, not least over the last three decades. In uncovering the intricacies of international law’s legitimacy crisis, (...) the article uncovers the paradox of global constitutionalism: that its need to adopt a sectoral form of integration may cause a legitimacy gap/deficit because international authorities, resting their legitimacy primarily on instrumental grounds, may face problems in compensating for the legitimacy deficit caused by the erosion of domestic sovereignty and extending their legitimacy to non-instrumental grounds. This paradox has one necessary structural and two contingent content-related implications for domestic democracies: (1) it necessarily narrows down the regulatory space of nation-states; and this may in turn (2) impair democratic stability and solidarity, and (3) provide a fertile ground for populism. Drawing on Raz’s service conception, the article focuses on the interaction between international and domestic authorities and highlights the problematic aspects of the neoliberal constitutionalization of international law. (shrink)

I show that conceptual philosophical anarchism, the claim that law cannot give reasons for action, is entailed by several popular theories about law. Reductionists about practical authority believe that all supposedly legitimate practical authority reduces to forms of theoretical authority. They tend to embrace anarchism, but some readers might not be clear why. Trigger theorists about reason-giving believe that all reason-giving merely activates pre-existing conditional reasons. Natural lawyers hold that all legal reasons are sourced in the natural law, which entails (...) that positive law cannot provide reasons for action. If you are attracted to any of these theories and still think that positive law creates new practical reasons, you might have to give up one or the other position. If anarchism is entailed by believing the normativity in law’s directives pre-dates the directive, only a few may be able to avoid it, Hans Kelsen, Mark Greenberg, and Joseph Raz being the most likely. (shrink)

This article examines the application of the ought‐implies‐can principle in the legal domain, especially in the relationship between obligations and responsibility. It addresses the challenge of cases in which an agent cannot do what is required of her, and yet it seems plausible to say that she has an obligation. To deal with these cases, two parallel distinctions are made: between rules of conduct and rules of imputation, and between doings and things done. It is proposed that these distinctions show (...) that the principle operates in two different but complementary ways: as part of prescriptive relations and as part of responsibility practices. (shrink)

What are rules? In this paper I develop a view of regulative rules which takes them to be a distinctive normative kind occupying a middle ground between orders and normative truths. The paradigmatic cases of regulative rules that I’m interested in are social rules like rules of etiquette and legal rules like traffic rules. On the view I’ll propose, a rule is a general normative content that is in force due to human activity: enactment by an authority or acceptance by (...) a community. Rules are unlike orders in being not necessarily communicative, not an expression’s of the giver’s will, not evaluable for sincerity, and in that they have propositional content. And they’re unlike normative truths in that they’re themselves not even truth-evaluable (though their contents are). This is because rules qua things that are in force are not like constatives which have a mind to world direction of fit, but more like performatives. Furthermore, they differ from normative truths in that their normativity is isolated from their background justification and is therefore not dependent on contributory notions like reasons coming together in a weighing explanation. As such, they occupy a middle ground between orders and normative truths, much like in H. L. A. Hart’s opinion law occupies a middle ground between “coercion” and “morality” (Hart 1961/1994). I also illustrate the virtues of this understanding of rules by showing how proper appreciation of how they differ from normative truths helps us defuse a common objection to Hart’s practice theory of rules. (shrink)

In Wilmot-Smith’s recent “Law, ‘Ought’, and ‘Can’,” he argues that legal obligation does not imply ability. In this short reply, I show that Wilmot-Smith’s arguments do not withstand critical scrutiny. In section 1, I attack Wilmot-Smith’s argument for the claim that allowing for impossible obligations makes for a better legal system, and I introduce positive grounds for thinking otherwise. In section 2, I show that, even if Wilmot-Smith had established that impossible obligations make for a better legal system, his subsequent (...) attack on OIC fails. (shrink)

I will argue that the natural law theory of morality, when extended into a political theory of justice, results in a picture of political justice much like that of public reason liberalism. However, natural law political theory, I argue, need not entail a natural law theory of morality. While facts about what societies ought to do supervene upon facts about what is good for human beings, there are distinct goods involved and distinct reasons for action. Rather, considerations taken from the (...) common good as guiding public policy results in a two-layer approach to public reasonability, resembling features of both consensus and convergence accounts of public reason. Consequently, the differences between natural law and classical public reason liberalism are significant but are not as significant as might have otherwise appeared. In fact, natural law political theory might be a more consistent development of the idea of a public reason than those of classical liberalism. (shrink)

A central question that arises when interpreting the U.S. Constitution is which theory of interpretation is the best? In his recent book, “How to Interpret the Constitution,” Cass Sunstein reviews various theories of constitutional interpretation currently in vogue and then offers what he believes would be the best approach going forward. In this Article, I want to take up a more basic question presupposed by the very idea of a theory of interpretation. That is, whether it is even possible to (...) arrive at more than a provisional understanding of what would be the best interpretation in any given area of study, including constitutional law. That said, I do believe some of the interpretations suggested by Cass Sunstein and elsewhere by myself and others to be more persuasive than most others, even if only partially so. For, as Sunstein himself points out, no theory seems perfect to figure out the Constitution’s meaning in every possible world in which we could imagine it to exist. So, we best just focus on our own world or what we take to matter in our world. In keeping with this idea, I plan to begin by looking first at how we might interpret the world around us based on our past experiences by considering a somewhat imaginative recent experience of my own. Next, I consider some recent studies in the neurosciences and a previous but highly influential article by the philosopher Donald Davidson concerning conceptual schemes and whether we could ever hope to make any sense of a scheme radically different from our own. Here it should be pointed out that I will use the word “scheme” when referring to a very broad system of thought for which there may not be much outside, versus when I use the word “framework,” as referencing something far narrower than a whole system of thought, even if what is referenced might purport to be a significant part of a still larger system. My goal is to eventually adopt John Rawls’ public reason method to separate out non-workable systems of thought as might be part of a particular religious or philosophical tradition that cannot be easily tied to any other system of thought easily imagined within a pluralistic society. I plan to do this by relating how Rawls’ public reason might allow for the creation of a moral interpretation of the Constitution adopting the moral theory of Alan Gewirth. The latter I adopt because its grounding does not presuppose any prior moral or religious framework. I then apply that interpretative method to five cases Sunstein believes are fixed points in our current constitutional understanding. In short, I plan to isolate out an area of human rights where even very different understandings of the world might be able to meet, while acknowledging that there will still be other areas that simply evade any common connection. I hope what I offer here to be of help for a theory of constitutional interpretation that focuses on morality, without having to compete with various religious frameworks going forward. (shrink)

The recent Covid-19 global health crisis not only brings into sharp relief the current problems afflicting the international intellectual property regime (IIPR) but also calls into question its legitimacy as an international authority. Against this backdrop, the article aims to launch an investigation into the legitimacy of the IIPR, as an international co-ordinative authority, designed to protect IP rights without prejudice to international trade norms. Drawing on Raz’s service conception of authority, it explores whether the IIPR lives up to its (...) promises by enabling co-ordination between states over IP rights without undermining the initial balance on which it is founded, struck between developing and developed countries, as well as between international protection of IP- cum-trade rights and domestic regulatory autonomy. It does so by classifying the historical evolution of the IIPR under three different phases: (i) its foundation, (ii) before, and (iii) after the TRIPS-plus. Upon showing the legitimacy challenges inherent in its undemocratic foundation, the article points to the success of the regime in finding a balance between conflicting interests before the TRIPS-plus era. Later, it underlines the many challenges that come with linking the IIPR to the investment regime and argues that the FTAs and frequent regime-shifting activities put further pressure on the authority and legitimacy of the regime. Stressing the importance of democratic participation for the legitimacy of any co-ordinative authority, the article casts doubt on the IIPR’s legitimacy and concludes by raising some points to overcome the ongoing legitimacy challenges. -/- . (shrink)

Deep legal change occurs when, without legal justification, one legal rule is replaced by another. While often ignored in legal theory, these rule-breaking normative transformations are common and significant enough to warrant careful attention. In this thesis, I analyse the structure of deep legal change and discuss how a philosophically rigorous jurisprudence should approach a legal phenomenon that appears to be legally inexplicable. In particular, I focus on the implications of rule-breaking rule-changes for our conception of courts and legal reasoning. (...) To understand why deep legal change occurs, we need to provide a normative explanation that clarifies why courts, as courts, have reasons to break the law. My solution takes me to G. W. F. Hegel’s Philosophy of Right. Hegel invites us to think of the judicial process as being grounded in two institutional values: the establishment of legal security and the protection of the “universal interest” of the state. Sometimes, these two values come into conflict. In these moments, established legal rules give way to fundamental state-interests. With Hegel, we can say that it is inevitable that political reasons periodically override legal reasons. In deep legal change, the fundamentally political character of law becomes visible. While reminiscent of Carl Schmitt and the literature on emergency powers, this theory of law is much closer to the reason-of-state tradition. Against the background of several historical case studies and contemporary scholarship, I demonstrate the novelty, coherence, and explanatory power of a Hegelian account of deep legal change. (shrink)

Theories of social norms frequently define social norms in terms of individuals’ beliefs and preferences, and so afford individual beliefs and preferences conceptual priority over social norms. I argue that this treatment of social norms is unsustainable. Taking Bicchieri’s theory as an exemplar of this approach, I argue, first, that Bicchieri’s framework bears important structural similarities with the command theory of law; and second, that Hart’s arguments against the command theory of law, suitably recast, reveal the fundamental problems with Bicchieri’s (...) framework. I then draw on Hart’s critique to develop and defend an alternative approach, arguing that we should conceive of social norms as the norms internal to a “socially sanctioned representational practice.” This approach makes social norms conceptually independent of individuals’ beliefs and preferences by locating them within social practices that transcend their individual participants, structuring the social landscape even before individuals form their own beliefs and preferences. (shrink)

This essay is a critical notice of David Dyzenhaus's book, The Long Arc of Legality. I argue that Dyzenhaus’s criterion for distinguishing legal pathologies that undermine law's contractarian claim to legitimacy and political pathologies that do not is unsustainable. It relies on a categorical distinction between the threat to law's legitimacy posed by treating some subjects as de jure second-class citizens, whose formal legal status is compromised, and other threats to political legitimacy grounded in the treatment of some subjects as (...) de facto second-class citizens, who retain full formal legal equality but suffer from thoroughgoing substantive subordination. But some forms of de facto second-class citizenship are a greater threat to contractarian legitimacy than some forms of full formal equality. So formal equality for subjects and legal legitimacy come apart. I consider and respond to several responses on Dyzenhaus's behalf, and conclude by proposing a version of his jurisprudential theory that relaxes this distinction. (shrink)

Whether Social Media Companies (hereafter, SMCs) such as Twitter and Facebook limit speech is an empirical question. No one disputes that they do. Whether they “censor” speech is a conceptual question, the answer to which is a matter of dispute. Whether they may do so is a moral question, also a matter of dispute. We address both of these latter questions and hope to illuminate whether it is morally permissible for SMCs to restrict speech on their platforms. This could be (...) part of a larger argument, when we do not explicitly offer here, that states ought not to forbid SMCs from censoring. We do not focus on legal statutes or precedent. We argue that nonstate actors can (as a conceptual matter) and may (as a moral matter) impede the freedoms of others to express themselves. That is, barring rare emergencies, nonstate actors may censor individuals even when states may not. (shrink)

In her recent book, Faces of Inequality (2020), Moreau aims at developing a normative account of discrimination that is guided by the main features of anti-discrimination law. The critical comment argues against this methodology, indicating that due to indeterminacy relative to their underlying normative principles, central anti-discrimination norms cannot fulfill this guiding role. Further, using the content of such norms to guide ethical discussions is likely to be misleading, as it reflects evidentiary considerations that are unique to the legal context. (...) The critical comment’s claims are developed based on a close examination of indirect discrimination (or disparate impact) norms, and, as such, have wider implications for ongoing moral and political debates that are heavily influenced by the content of these norms. (shrink)

Neuroscience can relate to ethics and normative issues via the brain’s cognitive control network. This network accomplishes several executive processes, such as planning, task-switching, monitoring, and inhibiting. These processes allow us to increase the accuracy of our perceptions and our memory recall. They also allow us to plan much farther into the future, and with much more detail than any of our fellow mammals. These abilities also make us fitting subjects for responsibility claims. Their activity, or lack thereof, is at (...) the heart of culpability. For instance, planning to kill someone is strong evidence of what the law calls mens rea—a guilty mind. Claims about norms, or ethical “should” claims, express two-level propositions, directed at the behaving person at one level, and at that person’s mind and cognitive control network at another level. Thus, “People should stop themselves from hurting others,” is a claim about how people should behave and also a claim about how their cognitive control networks should behave—i.e., they should inhibit harmful behavior, or the intentions leading up to it. Planning is both an ability of the full person, and of that person’s mind. Neuroscience affirms the common notion, seen both in law and folk psychology, that what makes us guilty or culpable are certain events and states that exist in our minds. Overt behavior, including speech, is fallible evidence of these states and processes. Cases of negligence still involve the executive processes, but “negatively,” in that negligence results when certain types of executive activity fail to take place. (shrink)

El objetivo del presente trabajo es analizar dos modelos específicos de discurso sobre la autoridad: un modelo que llamaré «hobbesiano» (representado por Thomas Hobbes) y un modelo que llamaré «raziano» (representado por Joseph Raz). Por un lado, intentaré mostrar que, pese a algunas aparentes similitudes, estos dos modelos son ejemplos de visiones opuestas acerca del tipo de autoridad, y del rol y las consecuencias que se le asignan a ésta en el marco del fenómeno jurídico y social. Por el otro, (...) intentaré mostrar cómo ambos modelos opuestos tienen una importante coincidencia: el fuerte desinterés por su eventual aplicación práctica para analizar la autoridad (especialmente, a nivel justificativo) de casos reales de Estados y sistemas jurídicos. (shrink)

As Leis de Platão apresentam-se como uma coleção de comandos jurídicos detalhados que trata sobre diversos temas, entre eles a composição do Estado ideal em uma cidade utópica chamada Magnésia e a imprescindibilidade na crença nas divindades. A preocupação de Platão com as crenças religiosas está associada à necessidade de manutenção da ordem moral e política. Para o filósofo, uma cidade em que seus habitantes duvidam da existência de seressuperiores capazes de punir os ímpios será sempre vítima do caos moral. (...) Acrença nos deuses foi então defendida como elemento fundamental para o bemda pólis e a excelência dos cidadãos e, neste sentido, Platão tentou articular asdimensões humana e divina. (shrink)

The concept of human dignity has been criticized as either too thick or too thin. However, according to the non-positivistic standpoint, the legal normativity of human dignity can be justified and thus strengthened by means of its moral correctness. From the individual perspective, Mencius’ understanding of human dignity as an intrinsic value and Kant’s formula of ‘man as an end in itself’ can be adequately understood based on the differentiation of, as well as the connection between, principium diiudicationis and principium (...) executionis, between will and choice, and between homo phaenomenon and homo noumenon (that is, ‘humanity in the personality’). From the social perspective, since the dual dimensions of the individual and the social person are both fictive constructions, even Radbruch, once as a supporter of social law, has not replaced the concept of ‘legal person’ and, in the post-War period, acknowledges individualistic human dignity as the criterion for applying the famous ‘disavowal formula’. On the one hand, human dignity shows at least a weak normative character, which requires, firstly, balancing between the exercise of state powers and the constitutional review under the guidance of the dual dimensions of man and, secondly, optimization of the principle of human dignity in individual cases. On the other hand, through the necessary connection between the concept of dignity and that of personality, human dignity can exhibit a strong normative character, which unavoidably requires a metaphysical justification. (shrink)

This article explores how externalism about reasons for action contributes to understanding the relations between agents and norms. In order to do this, firstly, the distinction between internalism and externalism is presented; secondly, some flaws of internalism regarding the objectivity of duties are analysed; lastly, externalism is defend-ed from the criticism according to which the principle «ought implies can» cannot be explained.

This chapter begins with an empirical analysis of attitudes towards the law, which, in turn, inspires a philosophical re-examination of the moral status of the rule of law. In Section 2, we empirically analyse relevant survey data from the US. Although the survey, and the completion of our study, preceded the recent anti-police brutality protests sparked by the killing of George Floyd, the relevance of our observations extends to this recent development and its likely reverberations. Consistently with prior studies, we (...) find that people’s ascriptions of legitimacy to the legal system are predicted strongly by their perceptions of the procedural justice and lawfulness of police and court officials’ action. Two factors emerge as significant predictors of people’s compliance with the law: (i) their belief that they have a (content-independent, moral) duty to obey the law (which is one element of legitimacy, as defined here); and (ii) their moral assessment of the content of specific legal requirements (‘perceived moral content of laws’). We also observe an interactive relationship between these two factors. At higher levels of perceived moral content of laws, felt duty to obey is a better predictor of compliance. And, similarly, perceived moral content of laws is a better predictor of compliance at higher levels of felt duty to obey. This suggests that the moral content incorporated in specific laws interacts with the normative force people ascribe to legal authorities by virtue of other qualities, specifically here procedural justice and lawfulness. In Section 3, the focus shifts to a philosophical analysis, whereby we identify a parallel (similarly interactive) modality in the way that form and content mutually affect the value of the rule of law. We advocate a distinctive alternative to two rival approaches in jurisprudential discourse, the first of which claims that Lon Fuller’s eight precepts of legality embody moral qualities not contingent on the law’s content, while the second denies any independent moral value in these eight precepts, viewing them as entirely subservient to the law’s substantive goals. In contrast, on the view put forward here, Fuller’s principles possess (inter alia) an expressive moral quality, but their expressive effect does not materialise in isolation from other, contextual factors. In particular, the extent to which it materialises is partly sensitive to the moral quality of the law’s content. (shrink)

This chapter begins with an empirical analysis of attitudes towards the law, which inspires a philosophical re-examination of the moral status of the rule of law. The chapter analyses survey data from the US about law-related attitudes and legal compliance. Consistently with prior studies, it finds that people’s ascriptions of legitimacy to the legal system are predicted strongly by their perceptions of the procedural justice and lawfulness of police and court officials’ action. Two factors emerge as significant predictors of people’s (...) compliance with the law: (i) their belief that they have a (content-independent, moral) duty to obey the law (which is one element of legitimacy, as defined in the chapter); and (ii) their moral assessment of the content of specific legal requirements (referred to in the chapter as ‘perceived moral content of laws’). The chapter also observes an interactive relationship between these two factors. The authors then identify a parallel (similarly interactive) modality in the way that form and content mutually affect the value of the rule of law. They argue that Lon Fuller’s precepts of legality possess an expressive moral quality, but that the extent to which their expressive effect materialises is sensitive to the moral quality of the law’s content. (shrink)

Em 2015 o jurista norte-americano Frederick Schauer publicou a obra The Force of Law, cujo teor não omite, desde o princípio de seu texto, que seu anseio ao escrevê-lo era opor-se à concepção proposta pelo estudioso inglês Herbert L. A. Hart no livro The Concept of Law, lançado em 2012, de que a natureza do Direito não abrange o componente coercitivo. Em The Force of Law é exposto que a coerção é o único componente do Direito usado até mesmo pelas (...) democracias mais desenvolvidas a fim de que se garanta o cumprimento de seus próprios atos normativos. Entretanto, de acordo com o raciocínio perpetrado na obra, é um fato empírico que os indivíduos muito raramente obedecem à lei meramente por deferência à sua autoridade. O presente artigo se propõe a apresentar considerações sobre o livro, tomando como referência não apenas seu texto, mas publicações científicas relacionadas. (shrink)

The chapter explores the ways in which philosophical thinking about public reason and public justification can shed light on some deep issues regarding the legitimacy or purpose of law, as well as shallower yet no less important questions of constitutional engineering and institutional desing.

Argues that reasons internalism, suitably understood, explains categorical reasons for us to cooperate with each other. The norms we then cooperate to satisfy can lie at the heart of legal systems, yielding unexpected implications in the philosophy of law.

This paper explores the possibility that Hobbesian jurisprudence is best understood as a ‘third way’ in legal theory, irreducible to classical natural law or legal positivism. I sketch two potential ‘third theories’ of law -- legal pragmatism and legal dualism -- and argue that, when considered in its broadest sense, Leviathan is best viewed as an example of legal pragmatism. I consider whether this legal pragmatist interpretation can be sustained in the examination of Leviathan’s treatment of civil law, and argue (...) that the pragmatic interpretation can only be successful if we can resolve two textual issues in that chapter. First, while Hobbes argues that law entails the existence of public (sharable) reasons, he does not adequately defend the view that the sovereign is the unique authority over such reasons in all cases, especially as far as they concern known collective emergencies. Second, Hobbes both affirms and denies that a sovereign can fail to do justice, which is paradoxical. Both problems are best resolved by legal pragmatism, though the second problem resists a fully satisfying resolution. The upshot is that, although Leviathan ought to be regarded as an episode of legal pragmatism, there are trade-offs on every reading. (shrink)

In this response to eight commentaries on my article “Kelsen, Hart, and legal normativity” I clarify some points in my original analysis and agree with some comments regarding work that still needs to be done. In particular, I attempt to distinguish my position from both Berkeleyan idealism and mere subjective perception. I agree with the commentators who urge that more must be done to analyze the nature of normativity in general, and legal normativity in particular.

This paper investigates whether different philosophers’ claims about “normativity” are about the same subject or (as recently argued by Derek Parfit) theorists who appear to disagree are really using the term with different meanings, in order to cast disambiguating light on the debates over at least the nature, existence, extension, and analyzability of normativity. While I suggest the term may be multiply ambiguous, I also find reasons for optimism about a common subject-matter for metanormative theory. This is supported partly by (...) sketching a special kind of hybrid view of normative judgment, perspectivism, that occupies a position between cognitivism and noncognitivism, naturalism and nonnaturalism, objectivism and subjectivism, making it more plausible that radically different metanormative theories could be about the same thing. I explore three main fissures: between (i) the “normativity” of language/thought versus that of facts and properties, (ii) abstract versus substantive senses, and (iii) formal versus robust senses. (shrink)

This chapter considers whether legal requirements can constitute reasons for action independently of the merits of the requirement at hand. While jurisprudential opinion on this question is far from uniform, sceptical views are becoming increasingly dominant. Such views typically contend that, while the law can be indicative of pre-existing reasons, or can trigger pre-existing reasons into operation, it cannot constitute new reasons. This chapter offers support to a somewhat less sceptical position, according to which the fact that a legal requirement (...) has been issued can be a reason for action, yet one that is underpinned by bedrock values which law is apt to serve. Notions discussed here include a value-based conception of reasons as facts ; a distinction between complete and incomplete reasons ; and David Enoch’s idea of triggering reason-giving. Following a discussion of criticism against the view adopted here, the chapter concludes by considering some more ‘robust’ conceptions of law’s reason-giving capacity. (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)

This article focuses on issues relating to legal normativity, emphasizing the way these matters have been elaborated in the works of Kelsen and Hart and later commentators on their theories. First, in Section 2, the author offers a view regarding the nature of law and legal normativity focusing on Kelsen's work (at least one reasonable reading of it). The argument is that the Basic Norm is presupposed when a citizen chooses to read the actions of legal officials in a normative (...) way. In this Kelsenian approach, all normative systems are structurally and logically similar, but each normative system is independent of every other system – thus, law is, in this sense, conceptually separate from morality. Second, in Section 3, the author turns to Hart's theory, analyzing the extent to which his approach views legal normativity as sui generis. This approach raises questions regarding what has become a consensus view in contemporary jurisprudence: that law makes moral claims. The author shows how a more deflationary (and less morally-flavored) understanding of the nature of law is tenable, and may, in fact, work better than current conventional (morality-focused) understandings. (shrink)

Speech and thought about what the law is commonly function in practical ways, to guide or assess behavior. These functions have often been seen as problematic for legal positivism in the tradition of H.L.A. Hart. One recent response is to advance an expressivist analysis of legal statements (Toh), which faces its own, familiar problems. This paper advances a rival, positivist-friendly account of legal statements which we call “quasi-expressivist”, explicitly modeled after Finlay’s metaethical theory of moral statements. This consists in a (...) descriptivist, “rule-relational” semantics combined with a pragmatic account of the expressive and practical functions of legal discourse. We argue that this approach is at least as well-equipped as expressivism to explain the motivational and prescriptive features of “internal” legal statements, as well as a fundamental kind of legal disagreement, while being better positioned to account for various “external” uses of the same language. We develop this theory in a Hartian framework, and in the final part of the paper argue (particularly against Toh’s expressivist interpretation) that Hart’s own views in The Concept of Law are best reconstructed along such quasi-expressivist lines. (shrink)

This book investigates law's interaction with practical reasons. What difference can legal requirements—e.g. traffic rules, tax laws, or work safety regulations—make to normative reasons relevant to our action? Do they give reasons for action that should be weighed among all other reasons? Or can they, instead, exclude and take the place of some other reasons? The book critically examines some of the existing answers and puts forward an alternative understanding of law's interaction with practical reasons. -/- At the outset, two (...) competing positions are pitted against each other: Joseph Raz's view that (legitimate) legal authorities have pre-emptive force, namely that they give reasons for action that exclude some other reasons; and an antithesis, according to which law-making institutions (even those that meet prerequisites of legitimacy) can at most provide us with reasons that compete in weight with opposing reasons for action. These two positions are examined from several perspectives, such as justified disobedience cases, law's conduct-guiding function in contexts of bounded rationality, and the phenomenology associated with authority. -/- It is found that, although each of the above positions offers insight into the conundrum at hand, both suffer from significant flaws. These observations form the basis on which an alternative position is put forward and defended. According to this position, the existence of a reasonably just and well-functioning legal system constitutes a reason that fits neither into a model of ordinary reasons for action nor into a pre-emptive paradigm—it constitutes a reason to adopt an (overridable) disposition that inclines its possessor towards compliance with the system's requirements. (shrink)

Recension de la traduction française de l'ouvrage de F. Schauer, Penser en Juriste, Dalloz, 2018.

This is a short introduction to a book symposium on Paul Gowder's recent book, _The Rule of Law in thee Real World_ (Cambridge University Press, 2016). The book symposium will appear in the St. Luis University Law Journal, 62 St. Louis U. L.J., -- (2018), with commentaries on Gowder's book by colleen Murphy, Robin West, Chad Flanders, and Matthew Lister, along with replies by Paul Gowder.

Discussions of political obligation and political authority have long focused on the idea that the commands of genuine authorities constitute content-independent reasons. Despite its centrality in these debates, the notion of content-independence is unclear and controversial, with some claiming that it is incoherent, useless, or increasingly irrelevant. I clarify content-independence by focusing on how reasons can depend on features of their source or container. I then solve the long-standing puzzle of whether the fact that laws can constitute content-independent reasons is (...) consistent with the fact that some laws must fail to bind due to their egregiously unjust content. Finally I defend my understanding of content-independence against challenges and show why it retains a place of special importance for questions about the law and political obligation. Content-independence highlights that it is some feature of the law or law-making process in general that is supposed to generate moral obligations for citizens, not the merits of particular laws. (shrink)

This essay is an examination of the relationship between phenomenology and analytic method in the philosophy of law. It proceeds by way of a case study, the requirement of compliance in Raz’s theory of mandatory norms. Proceeding in this way provides a degree of specificity that is otherwise neglected in the relevant literature on method. Drawing on insights from the philosophy of art and cognitive neuroscience, it is argued that the requirement of compliance is beset by a range of epistemological (...) difficulties. The implications of these difficulties are then reviewed for method and normativity in practical reason. A topology of normativity emerges nearer the end of the paper, followed by a brief examination of how certain normative categories must satisfy distinct burdens of proof. (shrink)

The nature of legislative intent remains a subject of vigorous debate. Its many participants perceive the intent in different ways. In this paper, I identify the reason for such diverse perceptions: three intentions are involved in lawmaking, not one. The three intentions correspond to the three aspects of a speech act: locutionary, illocutionary and perlocutionary. The dominant approach in legal theory holds that legislative intent is a semantic (locutionary) one. A closer examination shows that it is, in fact, an illocutionary (...) one. In the paper, I draw the consequences for legal interpretation of this more theorized model of legislative intent. (shrink)

Confrontée à l’exigence de neutralité axiologique, comprise comme le rejet de tout jugement de valeur, la doctrine environnementaliste ne fait pas preuve d’une particulière originalité. Elle porte peu d’intérêt à cette exigence, son discours est inéluctablement affecté par les mêmes biais que ceux qui touchent les autres catégories de doctrine et elle y apporte aussi des réponses comparables. Elle met d’une part en place des processus d’objectivation dont la portée est limitée en raison de l’étroitesse de la communauté scientifique du (...) droit de l’environnement. D’autre part, elle expose peu ses méthodes et sa posture théorique alors même que ces deux éléments seraient de nature à améliorer sa réflexivité. Mais là encore, on ne peut déceler aucune véritable spécificité de la doctrine environnementaliste par rapport aux autres. Elle apparaît donc ni plus ni moins critiquable que les autres au regard de l’exigence de neutralité axiologique. Au-delà, une première phase de la doctrine environnementaliste s’achève probablement, phase qui ressemble d’ailleurs à ce qu’ont connu d’autres catégories de doctrine, entre défense de son objet et recherche de légitimité. Il s’agit désormais d’ouvrir une nouvelle phase que nous souhaiterions à la fois plus théorique et plus méthodique. (shrink)

Scott Shapiro’s theory that law is a social plan is helpful in seeing law essentially as a tool of human creation and as such is sympathetic to understanding law in terms of the social functions it performs, a method I argue for elsewhere. I focus here on two problems with the theory as presented. The planning theory does not adequately explain the persistence of law beyond the utility of those who implement it. Generally, plans can cease to exist as soon (...) as those engaged in them have no more use for them. Laws however, must usually be declared invalid or otherwise nullified for them to have no further effect. Shapiro’s use of self-certification to explain how law is differentiated from other forms of social planning is ad hoc and threatens circularity when he admits it to be a matter of degree. Both of these issues can be better solved by seeing law as an institutionalised abstract artefact, with a greater emphasis upon the nature of institutions doing much of the work done by the idea of planning. (shrink)

I argue that law is best understood as an institutionalized abstract artifact. Using the ideas of John Searle on institutions and Amie Thomasson on artifacts, I show how the law is capable of generating new reasons for action, arguing against recent work by David Enoch who holds that legal reason-giving is ultimately a form of triggering conditional reasons.

Several European and North American states encourage or even require, via good Samaritan and duty to rescue laws, that persons assist others in distress. This paper offers a utilitarian and contractualist defense of this view as applied to corporations. It is argued that just as we should sometimes frown on bad Samaritans who fail to aid persons in distress, we should also frown on bad corporate Samaritans who neglect to use their considerable multinational power to undertake disaster relief or to (...) confront widespread social ills such as those currently befalling public health (obesity) and the environment (climate change). As such, the corporate duty to assist approach provides a novel justification for sustainable business practices in such cases. The paper concludes by arguing that traditional stakeholder approaches have not articulated this duty of assistance obligation, though a new utilitarian stakeholder theory by Thomas Jones and Will Felps may be coextensive. (shrink)

In ‘Excusing Mistakes of Law’, Gideon Yaffe sets out to ‘vindicate’ the claim ‘that mistakes of law never excuse’ by ‘identifying the truth that is groped for but not grasped by those who assert that ignorance of law is no excuse’. Yaffe does not offer a defence of the claim that mistakes of law never excuse. That claim, Yaffe argues, is false. Yaffe’s article is, rather, an effort to assess what plausible thought might be behind the idea that mistakes of (...) law often should not excuse. (Yaffe is interested in more than just the descriptive claim that in Anglo-American legal jurisdictions mistakes of law routinely do not, in fact, excuse.) More particularly, Yaffe is interested in what plausible normative justification there might be for this asymmetric pattern: -/- Asymmetry: False beliefs about non-legal facts often excuse, but false beliefs about the law rarely excuse. -/- Yaffe offers a complex argument in support of Asymmetry. This paper is organised around my reconstruction of Yaffe’s argument. I argue that Yaffe’s argument does not succeed, but that his argument provides a template for an argument that could succeed. (shrink)

This article argues that using Joseph Raz’s service conception of authority to reject philosophical anarchism can be affected by political anarchism. Whereas philosophical anarchism only denies the authority of the state, political anarchism claims that anarchism is a better alternative to the state. Raz’s theory holds that an institution has authority if it enables people to better conform with reason. I argue that there are cases where anarchism is an existing alternative to the state and better fulfils this condition. Consequently, (...) in these cases, anarchist groups and societies and not the state have legitimate authority. When anarchism is not an existing alternative to the state, the state will, under Raz’s theory, have some legitimate authority, but that authority will be limited because anarchism remains a better possible alternative to the state. To support the political anarchist claim I discuss the anarchist collectives during the Spanish civil war, which I argue are an example of anarchism as an existing alternative to the state that better fulfils Raz’s service conception and also provide suggestive evidence that anarchism is in general a better possible alternative. I also discuss the relationship between political anarchism and authority and I argue that despite some tension they are not irreconcilable. I conclude that the interesting anarchist challenge for political theorists is political not philosophical. (shrink)