Take “legal reality” to be the part of reality that actual legal thought and talk is dis- tinctively about, such as legal institutions, legal obligations, and legal norms. Our goal is to explore whether legal reality is disunified. To illustrate the issue, consider the possibility that an important metaphysical thesis such as positivism is true of one part of legal reality (legal institutions), but not another (legal norms). We offer two arguments that suggest that legal reality is disunified: one concerns (...) the heteroge- neity of different entities that are part of legal reality; the other concerns variation within legal thought and talk. We then show that taking the possibility of the disunity of legal reality seriously has important upshots for how we think about the positivist and antipositivist traditions, the debate between them, and their relation to other parts of legal theory, such as critical legal theory and legal realism. (shrink)

The thesis examines the theoretical relationship between law and ethics. Its methodology is informed by both the existentialist tradition of ethical phenomenology and the natural law tradition in legal theory. The main claim of the thesis is that a phenomenological analysis of ethical experience, as suggested by the writings of existentialist authors such as Jean-Paul Sartre and Emmanuel Levinas, provides important support for the natural law tradition. This claim is developed and defended through detailed engagement with the natural law theory (...) of John Finnis. Specifically, I contend that Finnis’ account of moral reasoning as applying the principles of practical reasonableness to a context of self-evident, basic values gains significant support from a phenomenological theory of ethical experience. Finnis’ emphasis on the irreducible role of choice in moral deliberation also finds support in the existentialist tradition. However, I criticise some key aspects of Finnis’ theory, including his emphasis on the transcendental character of the basic values and his account of legal obligation. I begin by outlining some central features of the existentialist approach to philosophy. I advance an interpretation of existentialism as ethical phenomenology. I then discuss some possible methodological connections between the existentialist and natural law traditions. This discussion provides the methodological framework for the remainder of the thesis. The thesis develops and defends a substantially original theory of the relationships between law, ethics and politics. The exposition begins with an account of the relationship between law and community that draws upon the work of Finnis and G. W. F. Hegel. I then outline a phenomenological theory of ethical experience, drawing in particular on the writings of Sartre and Levinas. I employ this phenomenological account of ethics to develop a conception of moral reasoning as reflective, good faith engagement with pre-reflective social judgements of ethical significance. This view of ethical experience and moral reasoning is then used as the basis for an examination of the concept of law and its relationship to political discourse. I turn next to the notions of legal authority and obligation. I argue that law, in the focal sense of the term, presents a generic, peremptory obligation that is necessarily moral in character. In the course of the argument, I critically discuss the conceptions of legal authority proposed by Joseph Raz, Adolf Reinach, H. L. A. Hart, John Rawls, Finnis, Jacques Derrida and Hans Kelsen. This view of legal obligation entails there are fundamental moral conditions that positive rules must satisfy to qualify as law, in the focal sense. I explore the nature of the moral framework created by these conditions through a detailed analysis of the ethical foundations of political discourse. I argue that political discourse is founded upon an ontological apprehension of the nature of humans as free, ethical beings, which finds expression in a developed notion of political freedom. I suggest that the distinction between positive and negative forms of freedom advanced by Isaiah Berlin is best understood in terms of the different types of political claims invoked by those conceptions. I develop this theory by reference to the work of Charles Taylor, Gerald C. MacCallum, Wesley Newcomb Hohfeld, W. D. Ross, Robert Nozick and F. A. Hayek. I conclude by discussing the role of ethical experience in the interpretation of legal materials. I argue that ethical judgements play an irreducible role in constructing the natural interpretive context for judicial reasoning. I engage with the work of Hart, Lon L. Fuller, Martin Heidegger, Hans-Georg Gadamer, Ferdinand de Saussure and Ronald Dworkin, among others. In the final substantive chapter of the thesis, the potential for ethical judgements to play a constructive role in judicial action is illustrated through a detailed discussion of the doctrine of government neutrality. (shrink)

The idea that particular legal institutions are artifacts is not new. However, the idea that the “law” or “legal system” is itself an artifact has seldom been directly put forward, due perhaps to the ambiguities surrounding philosophical inquiries into law. Nevertheless, such an idea has recently been invoked more often, though not always developed in detail in terms of what the characterization of the “law” or “legal system” as an artifact entails ontologically, and what consequences, if any, this has for (...) philosophical accounts of law. As a result, the primary aim of this paper is to attempt an inquiry into what the claim that “law” by its nature or character is an artifact entails, and what an artifact theory of law might look like. (shrink)

I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating the concept of law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria generally offered for essential contestation. I then buttress this claim with the additional explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it is (...) useful to gain a greater understanding of uses of the concept to which it is applied (adducing criteria for making such judgments of usefulness). With that in mind, I then show that applying the appellation of essential contestation to the concept of law does not helpfully illuminate the most general concept of law (usually of most interest to legal philosophers) and therefore it should not be used, while allowing that it might be more useful for the related concept of the rule of law. (shrink)

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)

Justice, you might think, is the first virtue of the law. After all, we call our judges justices, the administration of law the administration of justice, and the government's legal department the Justice Department. We should reject this Priority of Justice for the Law in favor of the more moderate Priority of Justice for the Courts, the view that justice is the first virtue of the law courts. Under its comparative conception, justice is distinguishable by its concern with the relative (...) positions of subjects. I claim that legal duties divide into primary and secondary, that primary legal duties are not essentially comparative, and that this impugns the Priority of Comparative Justice for the Law. Still, the bipolar structure of litigation appears to suggest that comparative justice is the first virtue of the courts. I explain why that is not so. I then introduce a desert-based conception of justice I dub requitative justice. I argue that the Priority of Justice for the Law cannot draw succor from this conception of justice because primary legal duties are no more requitative than they are comparative. However, the special affinity between law courts and secondary legal duties suggests that requitative justice is the first virtue of the courts. Finally, I concede that the Priority of Justice for the Courts gives us reason to accept the Priority of Justice for the Law after all, if we accept the common Priority of Courts for the Law, the view that the courts are the first institution of the law. We should not do so, however. (shrink)

This article examines the possibility of moral considerations and arguments serving as validity conditions of law in legal positivist theory. I argue that, despite recent attempts, this possibility has yet to be established. My argument turns on a defense of Joseph Raz's Sources Thesis, yet I do not adopt his famous “argument from authority.” Rather, I offer a renewed defense of the distinction between creation and application of law and argue that moral considerations and arguments, whether recognized in law or (...) not, remain arguments about the modification of law. (shrink)

Ronald Dworkin is one of the most frequently cited legal philosophers. His work, notably his attack on H. L. A. Hart's positivist theory of law, has received considerable attention, earning him praise as well as trenchant criticism. Instead of discussing the analytical validity of Dworkin's claims, though, we propose an alternative reading of his jurisprudential writings that emphasises their rhetorical nature. After delineating the rhetorical context of his work, we provide several illustrations of his use of rhetorical strategies and, with (...) the help of sentiment‐analysis techniques, emotional language. While resorting to classical rhetorical tactics, Dworkin's rhetoric, we argue, appealed to the emotional power of rights talk at a time when the notion of rights enjoyed greater resonance with his audience. (shrink)

Algunos de los más relevantes filósofos del derecho de los últimos años, como Carlos S. Nino y Ronald Dworkin, han defendido que hay una pluralidad de conceptos de Derecho. Scott Shapiro ha sostenido una posición especialmente relevante acerca de ello: la palabra ‘Derecho’ es sistemáticamente ambigua, pues a veces designa un conjunto de normas y otras veces una organización social. Esta es precisamente la tesis criticada en el trabajo. Se argumenta, basándose en determinada literatura filosófica acerca de los conceptos, que (...) los conceptos de objetos sociales de carácter intencional contienen una dimensión social y una dimensión significativa, normativa en el caso del derecho. El mismo concepto de Derecho expresa una dimensión social y una normativa imbricadas entre sí. Some of the most relevant legal philosophers in the last decades, as Carlos S. Nino and Ronald Dworkin, have defended the idea that there is a plurality of concepts of law. Scott Shapiro has sustained this account in a particularly relevant way: the word ‘law’ displays a ubiquitous ambiguity, sometimes designates a set of norms and other a social organization. This is precisely the thesis which is criticized in the paper. It is argued, from a certain philosophical literature about the concepts, that concepts of social objects of intentional character contain a social dimension and a meaning dimension, normative in the case of the law. That is to say, the concept of law expresses a social dimension and a normative dimension intertwined. (shrink)