The proposed theoretical motivation for legal fictionalism begins by focusing upon the seemingly supernatural powers of creation and control that mere mortals exercise over legal things, as a subclass of socially constructed things. This focus brings to the fore a dilemma of uncharitableness concerning the ontological commitments expressed in the discourse of whole societies about such things. Either, there is widespread equivocation as to the fundamental concept expressed by terms such as ‘existence’ or our claims about legal and other institutional (...) things are never really true. When stated as a dilemma, rather than assuming either horn from the outset, our broader social practice of fiction-telling yields a reason to prefer the fictionalist horn. -/- I differentiate three grades of legal fictionalism and contrast strong legal fictionalism with Horacio Spector’s weak form. Only the stronger form has it that engagement in a fictional discourse of law can provide reasons for legal decision-making independent of moral opinions or policy considerations. This stance relies on the claim that maintaining a fictional discourse with respect for its integrity justifies inferences to conclusions about a fictional domain beyond what is described in existing expressions of the discourse. Focusing on ontology allows an analogy between a fictional discourse of law and literary or popular fiction, in which context such inferences are more obviously persuasive. I argue that this notion of respect for the integrity of such a discourse saves legal formalist jurisprudence from the indeterminacy objections of legal realists. (shrink)

This essay examines an ambiguity in Hans Kelsen’s theory of a norm. On the one hand, Kelsen claims to adhere to what he considers the ‘is/ought’ dichotomy. Kelsen claims that he is describing what really is. On the other hand, Kelsen seems to be understanding the is/ought dichotomy in a very different manner than that by which his contemporaries or, indeed, today’s readers understand the distinction. The clue to this ambiguity is Kelsen’s understanding of a norm. Although legal existence is (...) said to rest with norms, this existence is very different than an existence constituted from social behaviour. Instead, in Kelsen’s view, a norm is a signifying relation between a sign and a cognitive object. Kelsen’s theory of language, however, is very different from a theory of speech acts. When addressing why a norm is binding, we find that Kelsen’s full theory of language excludes important phenomena in order to retain its purity. (shrink)

This article uses Hans Kelsen's theory of a legal system to take a fresh look at European Community law, and the relationship between the European Community, its Member States, and international law. It argues that the basis of the Community's legal legitimacy is indeterminate, and offers a model to accommodate that indeterminacy. This model is founded on a constructivist approach suggested to be particularly useful in the EC context. Using this approach, it is argued that the concepts of system, autonomy (...) and sovereignty in the Community can only be understood through the recognition of a plurality of viewpoints, and that it is crucial, in describing the Community, to distinguish between a concept per se and the choice to adopt that concept. (shrink)