In this paper, I argue that dialogue between legal philosophers and social scientists can be mutually beneficial. Nicola Lacey offers a vision of jurisprudence that supposes as much. I start by setting out my interpretation of her view. I then defend its potential, which she takes for granted, from the challenges posed by, first, an apparent friend—Brian Leiter—and, second, obvious adversaries—Joseph Raz and others. My response proposes an alternative to their conceptions of legal philosophy, one that is consistent with my (...) understanding of the approach to jurisprudence that Lacey recommends. (shrink)

In this article, I discuss Alf Ross's claim that the concept of a legal right is best understood as a technical tool of presentation, which ties together a disjunction of operative facts and a conjunction of legal consequences, and that rights statements render the content of a number of legal norms in a convenient manner. I argue that while Ross's analysis is appealing, it is problematic in at least three respects. I also argue, however, that despite these difficulties Ross's analysis (...) deserves our continued attention, because the fundamental idea—that the concept of a legal right must be understood functionally—is sound. (shrink)

Legal positivism's ``separation thesis'' is usually taken in one of two ways: as an analytic claim about the nature of law – roughly, as some version of the Social Thesis; or as a substantive claim about the moral value of law – roughly, as some version of the Value Thesis. In this paper I argue that we should recognize a third kind of positivist separation thesis, one which complements, but is distinct from, positivism's analytic and moral claims. The Neutrality Thesis (...) says that the correct analytic claim about the nature of law does not by itself entail any substantive claims about the moral value of law. I give careful formulations of these three separation theses, explain the relationships between them, and sketch the role that each plays in the positivist approach to law. (shrink)

Although much ink has been spilled on different aspects of legal concepts, the approach based on the developments of cognitive science is a still neglected area of study. The “mental” and cognitive aspect of these concepts, i.e., their features as mental constructs and cognitive tools, especially in the light of the developments of the cognitive sciences, is discussed quite rarely. The argument made by this paper is that legal concepts are best understood as mental representations. The piece explains what mental (...) representations are and why this view matters. The explanation of legal concepts, understood as mental representations is one of three levels of explanation within legal philosophy, but—as will be argued—it is the most fundamental level. This paper analyzes the consequences of such understanding of concepts used in the field of legal philosophy. Special emphasis is put on the current debate on the analogical or amodal nature of concepts. (shrink)

The relationship between Legal Realism and Legal Positivism has been a recurrent source of debate. The question has been further complicated by the related difficulty of assessing the internal relationship between the two main original strands of Legal Realism: American and Scandinavian. This paper suggests considering American and Scandinavian Realism as instantiations of forward-looking and backward-looking rule skepticism respectively. This distinction brings into sharp relief not only the fundamentally different relationship between each of these two Realist schools and Legal Positivism (...) but also their equally different potentials as starting points for naturalizing jurisprudence. (shrink)

This essay is concerned with Brian Leiter’s so-called replacement naturalism, according to which the traditional methodology of conceptual jurisprudence ‘should be replaced by reliance on the best social scientific explanations of legal phenomena.’ I argue that, although the methodology of experimental jurisprudence is the only plausible replacement for the traditional methodology, it cannot can replace the philosophical methods traditionally used to address conceptual issues and, further, that experimental jurisprudence needs a theoretical foundation that properly locates its role relative to that (...) of conceptual theorising and clarifies its methodology. To this end, I discuss three recent studies that attempt to ascertain the intuitions of competent speakers on three longstanding conceptual disputes about law: two attempt to show our folk concept of law is antipositivist, whereas the other attempts to show our folk concept of law is consistent with the existence of sanction-less legal systems. I argue that all three studies suffer from defects indicating the empirical methodology of experimental jurisprudence can supplement, but cannot replace, the traditional philosophical methodology for addressing conceptual questions. I argue, finally and far more worrisomely, that the last study calls into question its usefulness even in supplementing the traditional philosophical methodology. (shrink)

This article surveys methodological matters that shape, drive, and plague analytic legal philosophy. Section 2 briefly explicates conceptual analysis, analytic definitions, and family resemblance concepts. It also argues that central cases are used in more than one way. Section 3 presents criticisms of those concepts and methods, and suggests that some of these difficulties are due to the lack of a shared paradigm regarding a counterexample’s impact. Section 4 explains “meta- theoretical” desiderata. It contends that, to date, legal philosophical appeals (...) to such norms have not been as helpful as some suggest. Section 5 returns to the issue of concept selection by addressing whether legal theorising is an invariably “normative” enterprise. It argues that certain “normativist” methodologies, such as Dworkin’s constructive interpretation and Finnis’ appeal to the central case of the internal point of view, are unnecessary. (shrink)

The aim of this chapter is to test the degree to which Deleuze’s philosophy can be reconciled with the subject naturalist approach to pragmatism put forward by Macarthur and Price.

Este trabajo es una crítica a la distinción entre lagunas de conocimiento y reconocimiento. En Normative Systems, Alchourrón y Bulygin sostienen que estas indeterminaciones en la aplicación del derecho son problemas diferentes. Según AB, las lagunas de conocimiento surgen por nuestro deficiente conocimiento de las circunstancias del caso, pero las lagunas de reconocimiento se producen por la vaguedad del lenguaje. Para resolver las lagunas de conocimiento, los juristas usan presunciones y para resolver las lagunas de reconocimiento es preciso redefinir los (...) conceptos. Sin embargo, AB no ofrecen una reconstrucción específica de la vaguedad y ello afecta al análisis de esos tipos de lagunas. En particular, AB creen que la vaguedad es un problema epistémico y, por ello, un sistema completo puede ofrecer una respuesta correcta para cada caso individual aun cuando no podamos conocer esa solución. Pero, cuando se asume que la vaguedad es un problema epistémico, entonces no existen mayores razones para distinguir entre lagunas de conocimiento y lagunas de reconocimiento. This paper analyzes the distinction between gaps of knowledge and gaps of recognition. In Normative Systems, Alchourrón and Bulygin claim that both indeterminacies are different problems that arise in the application of general norms to individual cases. Where through ignorance of certain properties of the facts, we cannot determine whether an individual case belongs to a generic case, we speak of gap of knowledge. On the contrary, gaps of recognitions are caused by the semantic indeterminacy of the concepts which define a generic case. In order to solve gaps of knowledge, jurists use legal presumptions, but the solution of a gap of knowledge requires the redefinition of a certain concept. However, AB believe that vagueness is only an epistemic problem. For this reason, they conclude that a complete normative system resolves every possible individual case even though we can still find epistemic indeterminacies. However, this paper shows that if vagueness is characterized as an epistemic problem, there will be no relevant reason for stressing the distinction between gaps of recognition and gaps of knowledge. (shrink)

En este trabajo muestro la existencia de un "giro experimentalista" en ética que pertenece a una tendencia de la filosofía en general hacia la experimentación. Explicito la conexión entre este giro y un tipo de naturalismo que denominaré "débil". En el trabajo reflexiono sobre la manera en que este giro experimental, en tanto forma de un tipo de naturalismo, tiene un doble impacto en la ética como disciplina filosófica. En realidad, examino la manera en que el naturalismo subyacente al experimentalismo (...) afecta la naturaleza del análisis conceptual y el carácter normativo de la ética. In this paper I show the existence of an "experimental turn" in ethics belonging to a trend of general philosophy towards experimentation. I specify the connection between this turn and a type of naturalism that I will name "weak". In this work I reflect on how this experimental turn, shaped as a type of some sort of naturalism, has a double impact on ethics as a philosophical discipline. Actually, I examine how the type of naturalism that underlies experimentalism, affects the nature of the conceptual analysis and the normative character of ethics. (shrink)