A central tenet of modern Legal Positivism is the claim that “the existence of the law is one thing, its merit or demerit another.” I shall call this “the Positivist dictum.” Jeremy Bentham, the first and perhaps the greatest of the English Positivists, announced this doctrine in his early Fragment on Government, when he distinguished the “Expositor” of the law—who “explains what the law is” and “shows what the Legislator and Judge have done” — from the “Censor” — who instructs (...) us in “what the law ought to be.”. (shrink)

I argue in this article (i) that Karl Olivecrona's legal philosophy, especially the critique of the view that law has binding force, the analysis of the concept and function of a legal rule, and the idea that law is a matter of organized force, is a significant contribution to twentieth century legal philosophy. I also argue (ii) that Olivecrona fails to substantiate some of his most important empirical claims, and (iii) that the distinction espoused by Olivecrona between the truth and (...) the correctness of legal statements is problematic but not needed in Olivecrona's legal philosophy. (shrink)

Consequentialism is often charged with being self-defeating, for if a person attempts to apply it, she may quite predictably produce worse outcomes than if she applied some other moral theory. Many consequentialists have replied that this criticism rests on a false assumption, confusing consequentialism’s criterion of the rightness of an act with its position on decision procedures. Consequentialism, on this view, does not dictate that we should be always calculating which of the available acts leads to the most good, but (...) instead advises us to decide what to do in whichever manner it is that will lead to the best outcome. Whilst it is typically afforded only a small note in any text on consequentialism, this reply has deep implications for the practical application of consequentialism, perhaps entailing that a consequentialist should eschew calculation altogether. (shrink)

What is commonly called a right has since about 1980 increasingly come to be called a subjective right. In this paper the origin and rise of this solecism is investigated. Its use can result in a lack of clarity and even confusion. Some aspects of rights-concepts and their history are also discussed. A brief postscript introduces Leibniz's Razor.

Abstract.In the debates about legal determinacy, an important but often neglected issue is what is meant in the legal context by saying that a question has a right answer. By way of a critique of A. D. Woozley's discussion of “right answers,” I try to show how this issue is connected with issues of legal truth, legal mistake, and precedent.

Abstract.Legal philosophy must consider the way in which laws function as reasons for action. “Simple positivism” considers laws as merely reasons in the balance of reasons. Joseph Raz, as a representative of “sophisticated positivism,” argues that laws are exclusionary reasons for action, not merely reasons in the balance of reasons. This paper discusses Raz's arguments for his view. The Functional Argument provides no more reason for positivism than against it. The Phenomenological Argument is best supported by an account of how (...) character traits function in explaining behaviour. But then the distinction between exclusionary reasons and expressive reasons is obliterated. Legal positivism cannot absorb laws as expressive reasons for action. Raz's positivism implies the correctness of an anti‐positivistic legal theory. (shrink)

Jones and Felps claim that social welfare would be enhanced, if corporate managers adopted the goal of directly improving the happiness of their stakeholders instead of profit maximization. I argue that their argument doesn’t establish this. They show that a utilitarian case for profit orientation cannot be made from the armchair. But neither can the case for Jones and Felps’ preferred alternative. And their defense of it relies on empirically unsubstantiated assumptions.

Uno de los temas de más profundo debate en la filosofía del derecho de los últimos años ha sido el de las maneras en que dar cuenta del fenómeno del desacuerdo entre operadores jurídicos y entre juristas a la hora de desentrañar el contenido del derecho y, por ende, de dar con la respuesta jurídica para controversias particulares. A partir del trabajo de Ronald Dworkin, el tema se ha convertido en un instrumento de intenso análisis crítico del positivismo jurídico y (...) consecuentemente ha generado diversos enfoques que intentan dar cuenta del fenómeno de manera armónica con las tesis positivistas centrales. Uno de estos enfoques, en particular, intenta afrontar este desafío ligando al positivismo con un análisis expresivista del discurso jurídico de primer orden; análisis análogo al que importantes autores abocados a la metaética contemporánea han propuesto para el discurso moral. En el presente trabajo presento los lineamientos centrales de este enfoque iusfilosófico, indagando tanto en algunas de sus virtudes como en algunas de sus mayores dificultades. (shrink)

Abstract.Although the Hart/Dworkin debate has as much to do with Dworkin's affirmative theory of judicial discretion as with Hart's more comprehensive theory of law, the starting point was of course Dworkin's attempt to demolish the “model of rules,” Hart's alleged analysis of legal systems as collections of conclusive reasons for specified legal consequences. The continuing relevance of this attack for the prospects for any theory of law is the subject of the present essay.

Kratochwil argues that a social-scientific study of the behavior of regimes, and how they exercise power, is a useful method to challenge the exaggerated view of international relations as a "normless anarchy.".

Logic is concerned with the design or structure of arguments. It describes the forms of valid argument and is concerned with the public presentation and reception of arguments. Hence it has a close connection with politics and the public sphere, and with rhetoric as the science of persuasion. Philosophers have analysed the objective conditions of validation, that is, the justifiability of assertions about the world. This quest for objective and scientific validity in argumentation about the nature of reality dominated much (...) of the development of logic in the 20th century. Logical arguments are held to be successful as a result of the ‘force of reason’ rather than because one's opponents have been bribed or coerced. Logic involves the study of the abstract, deductive moves in argumentation rather than an empirical study of how actual arguments are conducted. However, there is also a tension between rhetoric and philosophy; Plato drew a clear distinction between knowledge and persuasion. Logic is intended to give security to the former. The historical drift of logic is towards abstraction, especially the use of mathematical forms of representation. The study of logic is an important component of any project on encyclopaedic knowledge, that is, with knowledge that circulates in the public sphere, but the globalization of culture has raised an important problem about the universalistic claims of traditions of logic, namely, are there different forms of logical reasoning? (shrink)

General theory of law (general jurisprudence, allgemeine Rechtslehre) has often claimed to deal with general or universal concepts, i.e., concepts which are deemed to be common to any legal system whatsoever. At any rate, this is the classic determination of such a field of study as provided by John Austin in the nineteenth century—a determination, however, which deserves careful analysis. In what sense, indeed, can one assert that some legal concepts are common to different legal systems? And, above all, in (...) what sense can one assert that some concepts are common to different languages and cultures? My paper sets out to discuss such questions—although, obviously, they are too complicated to be answered in a single paper. The first section reconstructs the Austinian argument for general jurisprudence by placing it in its historical context. The second section tries to apply to legal concepts some suggestions derived from the contemporary debate on conceptual relativism. The third section, returning to the Austinian problem, comes to the following conclusion: Even if conceptual relativism were true and there were no general or universal legal concepts, this would not invalidate in any way the didactic and scientific value of (general) theory of law. (shrink)