The author's thesis is that there is a conceptually necessary connection between law and morality which means legal positivism must fail as a comprehensive theory. The substantiation of this thesis takes place within a conceptual framework which shows that there are at least 64 theses to be distinguished, concerning the relationship of law and morality. The basis for the author's argument in favour of a necessary connection, is formed by the thesis that individual legal norms and decisions as well as (...) whole legal systems necessarily make a claim to correctness. The explication of this claim within the frame of discourse theory shows that the law has a conceptually necessary, ideal dimension, which connects law with a procedural, universalistic morality. (shrink)

The author presents a relatively formal theory of the rule of law which includes three basic components: conceptual, institutional and axiological. He then emphasizes the differences between a formal and a substantive theory of the rule of law and highlights the advantages and limits of the former. Finally, the author indicates the importance of this type of theory, namely the values it implies such as predictability, justified reliance, autonomous choice, minimization of disputes and legitimacy.**.

Two claims lay the foundation for Beyleveld and Brownsword’s legal theory. The first says that immoral laws cannot be law, the second that rights to freedom and welfare can be proven to be logically necessary given merely the phenomenon of agency. The author argues that both claims are too strong. The first is an overidealization of law, which fails to do justice to its double nature as a real as well as an ideal phenomenon. The second must fail, for a (...) moral “ought” cannot be deduced from a merely instrumental “ought.”. (shrink)

The article considers the nature of legalistic, or formal, conceptions of the rule of law, focusing particularly on the work of Joseph Raz and Albert Venn Dicey. It asks how such apparently narrow conceptions are generated, and how far they can resist including broader social claims. It concludes that the rationale behind legalistic conceptions compels them to address issues of poverty and the literacy of the law's subjects. However, legalistic conceptions of the rule of law can still avoid sliding into (...) the wider non‐legalistic models advanced by writers such as T. R. S. Allan. (shrink)

Purpose of this article is to assess the validity of the Razian conception of the rule of law by subjecting it to the acid test of Michel Troper's 'realist theory of interpretation'. The author argues that, in light of the Wittgensteinian view of rule-following, a serious indeterminacy can be seen as inherent in both this conception of the rule of law and Troper's theory of interpretation.

The fact that A has relied on B to do something is often taken to be a relevant factor in judging that B has a moral or legal obligation to do that thing. This paper investigates the relation between reliance and obligation. Specifically, the question is whether reliance and moral obligation are connected by some relation of conditionality. I consider four such relations - necessary condition, sufficient condition, necessary part of a sufficient condition, and independent necessary part of a sufficient (...) condition. I argue that only the third one connects reliance and moral obligation, and that it does so in a trivial way. There are nevertheless two justifications for the prominence given to reliance in morality and law. First, reliance appears to be a sufficient condition of states of affairs involving concepts related to obligation. Second, reliance is a fairly reliable indicator of obligation. (shrink)

In this paper I outline various different objects of investigation that may be picked out by word “law” (or its cognates). All of these objects must be investigated in an integrated way before one can provide a complete philosophical explanation of the nature of law. I begin with the distinction between laws (artefacts) and law (the genre to which the artefacts belong). This leads me to the distinction between the law (of a particular legal system) and law (the genre of (...) artefacts). Then I discuss the contrast between law (the genre of artefacts) and law (the practice). Finally I comment on legality as the name of an ideal for laws and legal systems to live up to. I commend H. L. A. Hart's explanation of the nature of law for investigating these various objects in an integraed way, while nevertheless respecting the distinctions among them. I also criticise some of R. M. Dworkin's work for failing to respect the same distinctions. (shrink)

I take it as obvious that attempts to justify the criminal law must be sensitive to matters of criminalization—to what conduct is proscribed or permitted. I discuss three additional matters that should be addressed in order to justify the criminal law. First, we must have a rough idea of what degree of deviation is tolerable between the set of criminal laws we ought to have and the set we really have. Second, we need information about how the criminal law at (...) any given time and place is administered, since the law in action is bound to differ radically from the law on the books. Finally, we must have some basis for speculating what life would be like in the absence of a system of criminal justice—if the state ceased to impose punishments. (shrink)

My aim is to vindicate two distinct and important moral categories – ideals and aspirations – which have received modest, and sometimes negative, attention in recent normative debates. An ideal is a conception of perfection or model of excellence around which we can shape our thoughts and actions. An aspiration, by contrast, is an attitudinal position of steadfast commitment to, striving for, or deep desire or longing for, an ideal. I locate these two concepts in relation to more familiar moral (...) concepts such as duty, virtue, and the good to demonstrate, amongst other things, first, that what is morally significant about ideals and aspirations cannot be fully accommodated within a virtue ethical framework that gives a central role to the Virtuous Person as a purported model of excellence. On a certain interpretation, the Virtuous Person is not a meaningful ideal formoral agents. Second, I articulate one sense in which aspirations are morally required imaginative acts given their potential to expand the realm of practical moral possibility. (shrink)

The purpose of this paper is to propose and consider a new constitutional provision that can contribute to the protection of the vital needs of future generations. The proposal I wish to elaborate can be termed the posterity provision, and it has both substantive and procedural elements. The aim of this constitutional provision is twofold. The first is to encourage state authorities to make more future‐oriented deliberations and decisions. The second is to create more public awareness and improve the process (...) of public deliberation about issues affecting near and remote future generations. It is argued that a good case can be made for the proposed reforms compared with alternative substantive constitutional environmental provisions found in existing constitutions and in the literature on legal and political theory. The main reason for this is that the proposed law constitutes a better and more adequate basis for judicial enforcement than the alternatives, which tend to be very vague or unclear. In this connection, I contend that there are both epistemological and moral reasons for introducing constitutional provisions that focus on the protection of critical natural resources essential for meeting the basic physiological needs of future people. It is also argued that the posterity provision can be defended on the basis of central ideas and ideals in recent theory of deliberative democracy. (shrink)

In this essay, I consider the implications for traditional philosophical ethics posed by discoveries in brain research or neurocognition as well as psychological discoveries concerning human biases and cognitive limitations presented in behavioral economics. I conclude that although there still is much for philosophical ethics to do, the empirical research shows that human freedom and responsibility for ethical decisions is somewhat diminished and that choice architecture and nudges through public policy become important for getting people to do the right thing.

Amongst the latest, and ever-changing, pathways of death and dying, “suicide tourism” presents distinctive ethical, legal and practical challenges. The international media report that citizens from across the world are travelling or seeking to travel to Switzerland, where they hope to be helped to die. In this paper I aim to explore three issues associated with this phenomenon: how to define “suicide tourism” and “assisted suicide tourism”, in which the suicidal individual is helped to travel to take up the option (...) of assisted dying; the legality of assisted suicide tourism, particularly in the English legal system where there has been considerable recent activity; and the ethical dimensions of the practice. I will suggest that the suicide tourist—and specifically any accomplice thereof—risks springing a legal trap, but that there is good reason to prefer a more tolerant policy, premised on compromise and ethical pluralism. (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)

Price gouging occurs when, in the wake of an emergency, sellers of a certain necessary goods sharply raise their prices beyond the level needed to cover increased costs. Most people think that price gouging is immoral, and most states have laws rendering the practice a civil or criminal offense. The purpose of this paper is to explore some of the philosophic issues surrounding price gouging, and to argue that the common moral condemnation of it is largely mistaken. I make this (...) argument in three steps, by rebutting three widely held beliefs about the ethics of price gouging: 1) that laws prohibiting price gouging are morally justified, 2) that price gouging is morally impermissible behavior, even if it ought not be illegal, and 3) that price gouging reflects poorly on the moral character of those who engage in it, even if the act itself is not morally impermissible. (shrink)

Chaïm Perelman resuscitated the rhetorical tradition by developing an elegant and detailed theory of argumentation. Rejecting the single-minded Cartesian focus on rational truth, Perelman recovered the ancient wisdom that we can argue reasonably about matters that admit only of probability. From this one would conclude that Perelman's argumentation theory is inalterably opposed to natural law, and therefore that I would have done better to have written an article titled "Perelman's Theory of Argumentation as a Rejection of Natural Law."However, my thesis (...) is precisely that Perelman's theory of argumentation connects to the natural law tradition in interesting and productive ways. Perelman referred to natural law in. (shrink)

Abstract. The paper begins by challenging Hart's argument aimed to show that sanctions are not part of the concept of law. It shows that in the "minimal" legal system as understood by Hart, sanctions may be required for keeping the legal system efficacious. I then draw a methodological conclusion from this argument, which challenges the view of Hart (and his followers) that legal philosophy should aim at discovering some general, politically neutral, conceptual truths about law. Instead, the aim should be (...) to discover the values because of which certain things in the world are classified as law and others as non-law. Focusing on those would give us a more insight to the roles law plays in society, as well as more illuminating answers to traditional jurisprudential questions like the status of law in evil regimes. (shrink)

In comparison to Aristotle, Plato's general understanding of law receives little attention in legal theory, due in part to ongoing perceptions of him as a mystic or a totalitarian. However, some of the critical or communitarian themes that have guided theorists since Aristotle find strong expression in Plato's work. More than any thinker until the nineteenth and twentieth centuries, Plato rejects the rank individualism and self-interest which, in his view, emerge from democratic legal culture. He rejects schisms between legal norms (...) and community values, institutional separation of law from morals, intricate regimes of legislation and adjudication, and a culture of rampant litigation. He rejects the alienation of individuals, from each other and from their communities, that is so easily bred within highly complex political and legal systems. An understanding of his approach to some of the classic questions of legal theory provides insight not only into some central ideas of his own thought, but also into the roots of critical and communitarian critiques of law. (shrink)

In this article we address the question of individual identity and its place – or rather omission – in contemporary discussions about the cosmopolitan extension of liberalism as the dominant political theory. The article is divided into two parts. In the first part we show that if we consistently emphasise the complementarity of the “inner” and “outer” identity of a person, which is essential to liberalism from its very beginnings, then a fundamental flaw in the liberal cosmopolitan project becomes apparent. (...) This is the underestimation of the indispensability of an unambiguously determined public framework which will fix and enforce liberal principles and values in a comprehensible way. Such a framework for liberalism was always the political community and then, above all, the modern state, in which the liberal identity could then be realised. The discussion in this part of the article prepares the ground for an examination, in the second part, of a dilemma which cosmopolitan liberalism must face. In the second part we argue that the attempt to tackle the given problem presents liberals with the following dilemma: either it is necessary to plead for the institution of a global political authority (a “world state”), or to give up the belief that fundamental liberal principles and values can be realised to a global extent. We show, at the same time, that because of the character and ambitions of the cosmopolitan project, the promise of plural identities and multi­centred law cannot be relied upon. By way of conclusion we then ask what is the price of the realisation of cosmopolitan liberal ideals. -/- NOTE: This is a two-part article (in Czech). For download here is the first part; please see the link below for the second part as well. (shrink)

This paper presents a succinct review of the movement for moral genesis in business that arose in the 1970s. The moral genesis movement is characterized by: the rejection of the premise that business and ethics are antagonistic; the rise of the Issues Management approach, which stresses the social responsibility of the corporation: disdain of government regulation as a means of business moralization, and a search for control measures aimed at improving organization moral behavior. This movement now begins to give rise (...) to a new organizational model, the Self-Moralizing Corporation, which transcends existing paradigms of corporate rectitude. The tenets of the Self-Moralizing Corporation are that: the moral behavior of members is a requisite to the attainment of organization goals; individual moral behavior is an asset which must be managed and developed by the corporation; individual moral development is a collectively and individually shared responsibility; and, the maintenance of moral values is more important than the preservation of organization structure. (shrink)

The moral right to privacy consists of the power to determine who may gain access to information about oneself. Individual human beings need some measure of privacy in order to develop a sense of self and to avoid manipulation by the state. Journalists who respect the privacy rights of those on whom they report should especially be careful not to intrude unduly when gathering information, in publishing they should be able to demonstrate a public need to know private information. Individual (...) journalists should establish their own guidelines for reporting on the private lives of different categories of people in the news. (shrink)

In this paper, we discuss the notion of inevitable ignorance that the Italian Constitutional Court has introduced in justifying a restriction of the legal maxim Ignorantia legis non excusat. In particular, we argue that the epistemic flavor of the notion extends to the notion of inevitability beside that of ignorance, and we offer an epistemic analysis of the notion. This analysis is based both on the legal-theoretical framework defined by the justification of the restriction of the maxim, and on a (...) discussion of some paradigmatic Italian cases where the standard of excusability involving inevitable ignorance is applied. The analysis reveals that the notion of inevitable ignorance is closely connected to a number of notions also used in formal epistemology, such as belief, evidence, rationality, and trust. (shrink)

In this paper I argue that textualism is far less attractive as a theory of written law than some of its modern proponents think. For it is not usually sensible to expect the grammatical meaning of a provision to determine its appropriate legal meaning. Factors that are unrelated to grammar in the identification of law (e.g., legal theory, context) do too much of the work. **Draft -- acknowledgments welcome, but please do not cite.**.

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)

Since at least the 1980s, police departments in the United States have embraced a set of practices that aim, not to enable the prosecution of past criminal activity, but to discourage people from breaking the law in the first place. It is not clear that these practices effectively lower the crime rate. However, whatever its effect on the crime rate, I argue that preventive policing is essentially distinct from legal governance, and that excessive reliance on preventive policing undermines legal governance. (...) To show this, I emphasize law’s unique aptitude to define legal subjects’ ‘manifest’ status relations – that is, the rights and obligations that live within their local practices. I then argue, first, that preventive policing does not aim to define these relationships; and second, that excessive preventive policing threatens the relationship that law must bear with its subjects if law is to define their manifest relations authoritatively. (shrink)

In this article, the co-editors of the Leadership and Ethics: Quantitative Analysis section of the journal outline some of the key issues about conducting quantitative research at the intersection of business, ethics, and leadership. They offer guidance for authors by explaining the types of papers that are often rejected and how to avoid some common pitfalls that lead to rejection. They also offer some ideas for future research by drawing upon the opinions of four noted experts in the field to (...) consider the types of research questions we should be asking, the types of theory we should be building, the types of models we should be testing, and the types of methods we should be using. (shrink)

In addition to protecting agents’ autonomy, consent plays a crucial social role: it enables agents to secure partners in valuable interactions that would be prohibitively morally risk otherwise. To do this, consent must be observable: agents must be able to track the facts about whether they have received a consent-based permission. I argue that this morally justifies a consent-practice on which communicating that one consents is sufficient for consent, but also generates robust constraints on what sorts of behaviors can be (...) taken as consent- communicating. (shrink)

Following Kelsen’s influential theory of law, the concept of validity has been used in the literature to refer to different properties of law (such as existence, membership, bindingness, and more), and so it is inherently ambiguous. More importantly, Kelsen’s equivalence between the existence and the validity of law prevents us from accounting satisfactorily for relevant aspects of our current legal practices, such as the phenomenon of “unlawful law.” This chapter addresses this ambiguity to argue that the most important function of (...) the concept of validity is constituting the complex ontological paradigm of modern law as an institutional-normative practice. In this sense, validity is an artificial ontological status that supervenes on that of the existence of legal norms, thus allowing law to regulate its own creation and creating the logical space for the occurrence of “unlawful law.” This function, I argue in the last part, is crucial to understanding the relationship between the ontological and epistemic dimensions of the objectivity of law. Given the necessary practice-independence of legal norms it is the epistemic accessibility of their creation that enables the law to fulfill its general action-guiding (and thus coordinating) function. (shrink)

Besides their skepticism about universal reason and universal morality, the Frankfurt Schools of Critical Systems Theory and Critical Theory share basic assumptions: (1) the thinking in societal-systemic, institutional concepts, which transcend simple reciprocal relations by dint of their complexity; (2) the assumption that society is based on fundamental paradoxes, antagonisms, antinomies; (3) the strategy to conceptualize justice as a contingent and transcendental formula; (4) the form of immanent (and not morality-based, external) critique as an attitude of transcendence; (5) the aim (...) of societal (and not only political) emancipation in an ‘association of free individuals’ (Marx). The article focuses on those parallels and aims to conceptualize a critical turn-around of autopoietic systems theory. (shrink)

In recent years an increasing quantity of UK legislation has introduced blended or ‘hybridised’ procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately circumvent the enhanced procedural (...) protections of the criminal law. By conceptualising the rule of law as a structural coupling between the political and legal systems, and due process rights as necessary and self-imposed limitations upon systemic operations, this paper employs a systems-theoretical approach to critique this balancing act between expediency and principle, and queries the circumstances under which legislation contravening the rule of law can be said to lack legitimacy. (shrink)

This paper is a critical notice of Philip Pettit's On the People's Terms: A Republican Theory and Model of Democracy. Pettit argues that only Republicanism can respond appropriately to the ‘evil of subjection to another's will – particularly in important areas of personal choice’ because its ideal of liberty – freedom as non-domination – both captures better than liberalism our commitment to individual liberty and explains better our commitment to the legitimacy of democratic decision-making than standard democrat accounts. If this (...) argument succeeds, it demonstrates that there is no real tension between the liberal thought that justice provides a standard for evaluating public decisions independent of the fact that they are taken democratically and the democratic thought that the fact that a decision is democratic suffices to make it legitimate. I argue, however, that Pettit finds himself caught between two contradictory positions: a version of Isaiah Berlin's negative concept of liberty and a positive liberty account of democracy. And I show that his attempt to resolve the tension fails because it requires him to embrace the positive liberty account he is committed to rejecting. (shrink)

Research using current literature on legal reasoning was conducted with the goals of (a) determining what skills are most important in good legal reasoning according to such literature, (b) determining the extent to which existing Law School Admission Test item types and subtypes are designed to assess those skills, and (c) suggesting test specifications or new or refined item types and formats that could be developed in the future to assess any important skills that appear [by (a) and (b)] to (...) be measured in a limited or minimal way by the current LSAT. So far as can be determined, such systematic research using legal reasoning literature has never been previously conducted. This report presents the findings of this research. (shrink)

One of the pressing challenges we face today—in a post-Westphalian order and post-Bretton Woods world —is how to design the right kind of MAS that can take full advantage of the socio-economic and political progress made so far, while dealing successfully with the new global challenges that are undermining the best legacy of that very progress. This is the topic of the article. In it, I argue that in order to design the right kind of MAS, we need to design (...) the right kind of norms that constitute them; in order to design the right kind of constitutive norms, we need to identify and adopt the right kind of principles of normative design; toleration is one of those principles; unfortunately, its role as a foundation for the design of norms has been undermined by the “paradox of toleration”; however, the paradox can be solved; so toleration can be re-instated as the right kind of foundational principle for the design of the right kind of norms that can constitute the right kind of MAS that can operate across cultures, societies and states, to help us to tackle the new global challenges facing us. (shrink)

Recent philosophical research on normativity has clarified the nature and dynamics of social norms. Social norms are distinguished from legal and moral norms on the basis of their scope, their grounds, their characteristic forms of accountability, or some combination of these features. Because of their distinct character, social norms can reinforce practical prescriptions, prohibitions, and permissions provided to particular actors by legal or moral norms. They also can conflict drastically with those prescriptions, prohibitions, and permissions resulting in serious practical dilemmas. (...) The identification of normative principles capable of resolving practical dilemmas arising from conflicts between different kinds of norms is a major aim of contemporary moral and political philosophy. This dissertation contributes to this aim by establishing the significance of conflicts between social norms and legal or moral norms during mass atrocities and liberalizing political transitions. The dissertation argues that social norms, and changes in social norms, are critical components of accurate descriptions and responsible evaluations both legal and moral of the actions of individuals and groups before, during, and after mass atrocities. The dissertation contends, further, that distinct principles of justice may apply to transitional efforts by non-state actors to transform social norms in societies recovering from large-scale crimes. Three principal results follow from this dissertations effort to integrate the conceptual framework of social norms into the study of mass atrocity. First, the dissertation clarifies and extends the historiographical thesis of norm transformation, according to which participation by ordinary individuals in mass atrocities is at least partially explained by transformations in basic norms that structure social and political life. Second, the dissertation identifies a novel basis on which to apportion legal and moral accountability for mass atrocities between individuals and groups or collectivities i.e. on the basis of the specific contributions of social norms. Third, the dissertation provides new support for the disputed claim that distinct principles of justice apply to the various actors involved in liberalizing political transitions. (shrink)

In this thesis I outline a view of primary legislation from a systems perspective. I suggest that systems theory and, in particular, autopoietic theory, as modified by field theory, is a mechanism for understanding how society operates. The description of primary legislation that I outline differs markedly from any conventional definition in that I argue that primary legislation is not, and indeed cannot be, either a law or any of the euphemisms that are usually accorded to an enactment by a (...) parliament. I cite two reasons for such a conclusion. The primary reason for my conclusion is that I see primary legislation as being an output of a particular subsystem of society, while the law is the output of another subsystem of society. I argue that these outputs are the discrete products of separate subsystems of society. I argue that primary legislation should be viewed as a trinity. The first state of this trinity is that, upon enactment, primary legislation is a brute fact in that it is but a thing and the only property of this thing is that of being a text. The second state of this trinity is that following the act of enactment, the thing enacted will be reproduced and this reproduction is a separate thing that will sit in some repository until used. The third state of this trinity is that, upon use, this thing that is primary legislation will be transformed into an object and the user will attribute such functions and attributes to that object as are appropriate to the context within which the object is used. The thing has therefore become an object and an institutional fact. The second reason for my conclusion that primary legislation is not a law relates to the fact that the thing that is primary legislation is a text and the only function of a text is that it is available to be read. That is to say, of itself, a text is incapable of doing anything: it is the reader who defines the status of the text and attributes functions and attributes. Upon use, primary legislation thus becomes a censored input for future action and one of these actions may be some statement by a court of law. I assert that the view of primary legislation that has been accepted within the body politic is the product of the discourse of a particular subsystem of society that I have designated 'the legal practice', and I outline why and how this has occurred. Outlining a view about primary legislation also necessitates outlining a view as to the nature of the law. I assert that the law is a myth and I see this myth as a product of the discourse of the legal practice. I have asserted that although it is the judges that state the law, such statements flow from the discourse of those who practise the law. (shrink)

I will center the discussion of the Hart-Fuller debate on the five claims Hart mentions might be understood as legal positivisms main tenets: (1) the command theory; (2) the no necessary connection thesis; (3) the methodological claim; (4) the charge of positivism as formalism and the problem of interpretation; and (5) the meta-ethical confusion. In light of these five claims, I will explore whether the exchange of views between Hart and Fuller in 1957 truly amounted to a debate. Sorting out (...) this issue is the aim of this article. (shrink)

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should (...) be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it isnecessarilyinvolved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project. (shrink)

Many different kinds of professionals work with law, but often they seek to use law for particular governmental or private purposes, they focus on some specific areas or aspects of its creation, interpretation or application, or they study it for its interest judged by criteria that are given by fields of scholarly practice outside it. Is there a special significance for a role exclusively concerned with analysing, protecting and enhancing the general well-being or worth of law as a practical idea? (...) This article argues that such a role is important. Building on Gustav Radbruch's juristic thought, it asks how that role could be elaborated and how a professional responsibility for discharging it might be envisaged. Many professionals concerned with law adopt such a role incidentally or intermittently, but it needs more prominence and clear demarcation. The article suggests that it might be seen as the specialised role of the jurist, treated as a particular kind of legal professional. The term “jurist” would then have not just an honorific connotation. It would indicate a Weberian “pure” type that may approximate some current understandings of “juristic” practice; but it would also identify a normative ideal—something intrinsically valuable. Seen in this way, the jurist is one who assumes a certain unique responsibility for law. (shrink)

Law contains many dualities, though most, if not all, of these dualities resolve into one complex puzzle: To what extent is law a matter of pure social facts, or moral value untethered to social facts? I argue that each concept of law reconciles this duality in a different way on the basis of certain beneficial consequences that might result. Instead of pitting concepts against one another universally, we should accept that the balance between law's social fact and moral value dimensions (...) is context-specific in relation to particular legal puzzles. This balance can be achieved only by considering both political theory and empirical data. (shrink)

Our purpose in this article is to draw attention to a connection that obtains between two dilemmas from two separate spheres: sports and the law. It is our contention that umpires in the game of cricket may face a dilemma that is similar to a dilemma confronted by legal decision makers and that comparing the nature of the dilemmas, and the arguments advanced to solve them, will serve to advance our understanding of both the law and games.

This paper guides the reader through the use of functions in contemporary legal philosophy: in developing those philosophies and through methodological debates over their proper role. This paper is broken into two sections. In the first I canvass the role of functions in the legal philosophies of several mid to late twentieth century Anglo-American general jurisprudents whose theories are still common topics of discussion: Ronald Dworkin, H.L.A. Hart, Lon L. Fuller, John Finnis, and Joseph Raz. In the second, I examine (...) contemporary arguments over the role of functions in the methodology of legal philosophy. (shrink)

This paper describes and defends a novel and distinctively egalitarian conception of the rule of law. Official behavior is to be governed by preexisting, public rules that do not draw irrelevant distinctions between the subjects of law. If these demands are satisfied, a state achieves vertical equality between officials and ordinary people and horizontal legal equality among ordinary people.

In this article we aim to open a new line of debate about religion in public schools by focusing on religious ideals. We begin with an elucidation of the concept ‘religious ideals’ and an explanation of the notion of reasonable pluralism, in order to be able to explore the dangers and positive contributions of religious ideals and their pursuit on a liberal democratic society. We draw our examples of religious ideals from Christianity and Islam, because these religions have most adherents (...) in Western liberal democracies that are the focus of this article. The fifth and most important section ‘‘Reasonable pluralism and the inclusion of religious ideals in public secondary schools’’ provides three arguments for our claim that public schools should include religious ideals, namely that they are important to religious people, that they are conducive for the development of pupils into citizens of a liberal democracy, and that the flourishing of pupils as adults is advanced by encountering religious ideals. We also offer a more practical reason: religious ideals can more easily be included within public education than religious dogmas and rules. (shrink)

Criminal law doctrine fails to provide an adequate solution for imputing responsibility to organized crime leaders for the offenses committed by their subordinates. This undesirable state of affairs is made possible because criminal organizations adopt complex organizational structures that leave their superiors beyond the reach of the law. These structures are characterized by features such as the isolation of the leadership from junior ranks, decentralized management, and mechanisms encouraging initiative from below. They are found in criminal organizations such as the (...) American Mafia, the Japanese Yakuza, and even outlaw motorcycle gangs. The paper offers a doctrine that may transcend this shortcoming. Referred to as “leaders’ liability,” this doctrine will be assessed and appraised through a comparison with competing theories such as accomplice liability, Organisationsherrschaft , and conspiracy. (shrink)

This article delineates some of the main issues that are debated by philosophers of law. It explores the connections between legal philosophy and other areas of philosophy, while also seeking to specify the distinctiveness of many of the concerns that have preoccupied philosophers of law. It illustrates its abstract points with examples focused on the separability of law and morality, the nature of the rule of law, the nature of rights, justifications for the imposition of punishment, and the identification of (...) basic legal entitlements. (shrink)

This paper considers the justifiability of criminalising anti-social behaviour through two-step prohibitions such as the Anti-Social Behaviour Order (ASBO). The UK government has recently proposed to abolish and replace the ASBO; however, the proposed new orders would retain many of its most controversial features. The paper begins by criticising the definition of anti-social behaviour employed in both the current legislation and the new proposals. This definition is objectionable because it makes criminalisation contingent upon the irrational judgements of (putative) victims, and (...) its often modest preventive benefits come at a high cost to citizens’ liberty and autonomy. The paper then goes on to propose a new definition of anti-social behaviour that would meet these objections: that is, as a course of conduct that causes others to experience serious and justifiable anxiety about the safety of their local community. Whilst this definition identifies a serious form of wrongdoing, its precise scope is inevitably uncertain. The paper thus concludes that we have good reason to use two-step prohibitions such as the ASBO to regulate such conduct, so as to enable the use of the criminal law against it whilst minimising possible concerns of legality arising from the proposed definition’s uncertain scope. (shrink)

.The article deals with the difference between some forms of legal positivism. It is argued that, even in continental legal systems which are typically “rule bound,” there is some space left for principles in the legal system. The author tries to explain how this space can be filled and what methods should be used by a judge to do so.