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)

Some legal theorists deny that states can conceivably act extra-legally, in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen, and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and, ultimately, contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

The proliferation of forms of transnational regulation, often unclear in their relation to the law of nation states but also, in some cases, claiming authority as “law,” suggests that the concept of law should be reconsidered in the light of processes associated with globalisation. This article identifies matters to be taken into account in any such reconsideration: in particular, ideas of legal pluralism, of degrees of legalisation, and of relative legal authority. Regulatory authority should be seen as ultimately based in (...) the diverse moral conditions of the networks of community which regulation serves. (shrink)

Pragmatist reinterpretations of both deliberative‐communicative theory and legal positivism point out the mentalist fallacy entailed by these prevalent models. I argue that pragmatist approaches imply analogous erroneous beliefs since they presuppose as given the shared perception of social contexts. Therefore they take for granted the shared interpretation of social problems and shared selection of common goals. Hence I advance the necessity of inquiring into the possibility conditions for a shared perception of social contexts. This would entail the organization of institutional (...) incentives meant to extend the scope and inclusiveness of the immediate perception of social context expressed by different agents. (shrink)

This paper describes a model of legal reasoning and a logic for reasoning with rules, principles and goals that is especially suited to this model of legal reasoning. The paper consists of three parts. The first part describes a model of legal reasoning based on a two-layered view of the law. The first layer consists of principles and goals that express fundamental ideas of a legal system. The second layer contains legal rules which in a sense summarise the outcome of (...) the interaction of the principles and goals for a number of case types. Both principles, goals and rules can be used in legal arguments, but their logical roles are different. One characteristic of the model of legal reasoning described in the first part of the paper is that it takes these logical differences into account. Another characteristic is that it pays serious attention to the phenomena of reasoning about the validity and acceptance of rules, respectively principles and goals, and about the application of legal rules, and the implications of these arguments for the use of rules, principles and goals in deriving legal conclusions for concrete cases.The second part of the paper first describes a logic (Reason-Based Logic) that is especially suited to deal with legal arguments as described in terms of the previously discussed model. The facilities of the logic are illustrated by means of examples that correspond to the several aspects of the model. (shrink)

The concept of legal gap is tackled from a number of logical perspectives and semantic methods. After presenting our own goal (Section 1), a first introduction into legal logic refers to Bobbio’s works and his formalization of legal statements (Sections 2 and 3). Then Woleński’s contribution to the area is taken into account through his reference to the distinction between two juridical systems (viz. Common Law vs Civil Law) and the notion of conditional norms (Section 4). The notion of reason (...) is also highlighted in the case of Raz’s legal logic, thereby leading to a future connection with von Wright’s logic of truth and an analogy made with an anti-realist reading of truth-values and norms (Section 5). Our personal contribution is introduced through a reflection on how logic should deal with the logical form of norms (Section 6), before entering a number of crucial definitions and distinctions for the concepts of norm, legal statement, and promulgation (Section 7). The final point is a proposed semantics for legal statements, which is both many-valued and gap-friendly (Section 8). A distinction between a number of requirements for permission and forbiddance leads to a set of non-classical juridical systems in which non-permission and forbiddance are not equivalent with each other any more; this does justice to Woleński’s former distinction between Common Law and Civil Law, also leading ultimately to a non-classical square of legal oppositions in which several legal operators may collapse into other ones (Section 9). (shrink)

Taking into account one of the meanings of the expression binding precedent and stipulating a definition for that meaning, this article aims to contribute to the concept's structural characterization. By this I mean the effort to identify the legal norms on which the existence and functioning of binding precedents depend and to show that these norms constitute a group of Hohfeldian legal relations between the courts whose precedents must be followed, the courts that must follow them, and the individuals whose (...) legal situations are as a result modified by the observance and the breach of those precedents. (shrink)

In March 2021, the Mexican Constitution was amended to transition to a system of precedents. This amendment mandates that the “reasons” of Supreme Court rulings will be binding on the lower courts. However, the reform is rooted in a long-standing practice of ‘Tesis’, i.e., abstract statements that the Court itself identifies when deciding a case. Moreover, there is no consensus as to what these reasons are and why they should be binding. The aim of this article is to identify the (...) possible conceptions of reasons to explore the Court’s different judge-made law roles. Different common law conceptions of the ratio decidendi are used as “mirrors” to identify four models of judicial lawmaking in Mexican practice, namely: judicial legislation, implicit rules, moral-political justifications and social categories. Although the first model seems to prevail, the others provide means for a broader understanding of how the Court creates law depending on the interpretative context in which it operates. (shrink)

Speaker authority can spring into existence via accommodation mechanisms: a speaker acts as if they had authority and they can end up obtaining it if nobody objects. Versions of this claim have been advanced by Rae Langton, Ishani Maitra, Maciej Witek, and others. In this paper, I shift the focus from speaker to hearer authority. I develop a three-staged argument, according to which (i) felicity conditions for illocution can be recast in presupposition terms; (ii) just as certain illocutions require speaker (...) authority, there are also illocutions requiring hearer authority; (iii) accommodation may provide a way to confer authority to one’s audience, rather than gain it for oneself. Speakers sometimes act as if their hearer had authority, and the hearer can end up obtaining it solely by playing along. In closing, I pause on the potentially problematic interplay between informal authority conferral and social norms of female deference to men. (shrink)

Argues, against Anscombe, that Aristotle had the concept of morality as an interpersonal normative order: morality is justice in general. For an action to be wrong is not for it to warrant blame, or to wrong another person, but to be something one should not do that one has no right to do. In the absence of rights, morality makes no sense.

How can we make moral sense of the international humanitarian law doctrine of combatant immunity? The doctrine is morally shocking to many: It holds soldiers on both sides of a war immune from criminal prosecution for their otherwise criminal acts of killing, maiming, destroying property, etc., carried out as part of their country's war effort. That is, soldiers who kill as part of an attack benefit from the immunity just as much as those defending their country. Traditionally, just war theorists (...) have tried to provide situation‐specific arguments to show that soldiers on both sides had a good moral justification for their actions. Recently, self‐styled “revisionist just war theorists” have suggested that the doctrine of combatant immunity is just a convention designed to minimize harm. In this article, I suggest that the moral foundation of the doctrine lies in the status of soldiers as public officials in the service of their country. The reason why we hold them immune from prosecution for their war‐making acts is that such acts are properly thought of as acts of a state, rather than as acts of a particular individual. And the reason why states are immune from prosecution for their acts is one of moral standing: No other state has the moral standing to tell another how to carry out the matters that define its jurisdiction. So as long as a country deems (however implausibly) that it must use force to defend itself from aggression, then it may do what is required to defend itself. No other state has the standing to prohibit such acts or to punish those who carry them out. This argument is rooted in an understanding of how individuals may interact as free and equal under law. It does not aim at the perfection of human action, but it does serve to eliminate the worst forms of tyranny. (shrink)

The main thesis of this article is that Kant’s concept of law is a non-positivistic one, notwithstanding the fact that his legal philosophy includes very strong positivistic elements. My argument takes as its point of departure the distinction of three elements, around which the debate between positivism and non-positivism turns: first, authoritative issuance, second, social efficacy, and, third, moral correctness. All positivistic theories are confined to the first two elements. As soon as a necessary connection between these first two elements (...) and the third element, moral correctness, is established, the picture changes fundamentally. Positivism becomes non-positivism. There exist two kinds of connections between law and morality: classifying and qualifying connections. This distinction stems from different sorts of effects that moral defects give rise to. A classifying connection leads to the loss of legal validity, whereas a qualifying connection leads only to legal defectiveness. In Kant’s theory of law both connections are found. The qualifying connection is conspicuous throughout Kant’s theory of law, whereas the classifying connection, by contrast, is rare and well hidden. This will suffice to consider Kant as a representative of inclusive non-positivism. (shrink)

Can anti-deportation resistance be justified, and if so how and by whom may, or perhaps should, unjust deportations be resisted? In this paper, I seek to provide an answer to these questions. The paper starts by describing the main forms and agents of anti-deportation action in the contemporary context. Subsequently, I examine how different justifications for principled resistance and disobedience may each be invoked in the case of deportation resistance. I then explore how worries about the resister’s motivation for engaging (...) in the action and their epistemic position apply in the specific context of anti-deportation action and consider in what circumstances there is not merely a right but a duty to resist deportation. The upshot of this argument, I conclude, is that the liberal state ought to respond to anti-deportation action not by criminalising disobedience and resistance in this field, but rather by creating legal avenues for such actors to influence deportation decision-making. DOI 10.17879/95189423213. (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)

This paper examines the apparently widespread belief that the democratic pedigree of a state implies a moral obligation to obey its laws. The analysis focuses on the work of Ronald Dworkin, who is, perhaps surprisingly, alone among theorists of democracy in claiming that those whom the law addresses are morally bound to obey it whenever it is democratic. From Dworkin’s expansive conception of democracy, political obligation follows. But democracy should not be construed so widely. Rather, it ought to be conceived (...) more narrowly, such that, as other theorists concede, it cannot be more than part of a case for a moral obligation to obey the law. Hence, belief in the sufficiency of democracy for political obligation, notwithstanding its ostensible popularity, has yet to be justified. (shrink)

What do normative terms like “obligation” mean in legal contexts? On one view, which H.L.A. Hart may have endorsed, “obligation” is ambiguous in moral and legal contexts. On another, which is dominant in jurisprudence, “obligation” has a distinctively moralized meaning in legal contexts. On a third view, which is often endorsed in philosophy of language, “obligation” has a generic meaning in moral and legal con- texts. After making the nature of and disagreements between these views precise, I show how linguistic (...) data militates against both rivals to the generic meaning view, and argue that this has significant implications for jurisprudence. (shrink)

World Crisis and Underdevelopment examines the impact of poverty and other global crises in generating forms of structural coercion that cause agential and societal underdevelopment. It draws from discourse ethics and recognition theory in criticizing injustices and pathologies associated with underdevelopment. Its scope is comprehensive, encompassing discussions about development science, philosophical anthropology, global migration, global capitalism and economic markets, human rights, international legal institutions, democratic politics and legitimation, world religions and secularization, and moral philosophy in its many varieties.

Speech and thought about what the law is commonly function in practical ways, to guide or assess behavior. These functions have often been seen as problematic for legal positivism in the tradition of H.L.A. Hart. One recent response is to advance an expressivist analysis of legal statements (Toh), which faces its own, familiar problems. This paper advances a rival, positivist-friendly account of legal statements which we call “quasi-expressivist”, explicitly modeled after Finlay’s metaethical theory of moral statements. This consists in a (...) descriptivist, “rule-relational” semantics combined with a pragmatic account of the expressive and practical functions of legal discourse. We argue that this approach is at least as well-equipped as expressivism to explain the motivational and prescriptive features of “internal” legal statements, as well as a fundamental kind of legal disagreement, while being better positioned to account for various “external” uses of the same language. We develop this theory in a Hartian framework, and in the final part of the paper argue (particularly against Toh’s expressivist interpretation) that Hart’s own views in The Concept of Law are best reconstructed along such quasi-expressivist lines. (shrink)

According to a recent account of epistemic authority proposed by Linda Zagzebski (2012), it is rational for laypersons to believe on authority when they conscientiously judge that the authority is more likely to form true beliefs and avoid false ones than they are in some domain. Christoph Jäger (2016) has recently raised several objections to her view. By contrast, I argue that both theories fail to adequately capture what epistemic authority is, and I offer an alternative account grounded in the (...) abilities that different kinds of authorities are required to possess. (shrink)

It has become somewhat a commonplace in recent political philosophy to remark that all plausible political theories must share at least one fundamental premise, ‘that all humans are one another's equals’. One single concept of ‘basic equality’, therefore, is cast as the common touchstone of all contemporary political thought. This paper argues that this claim is false. Virtually all do indeed say that all humans are ‘equals’ in some basic sense. However, this is not the same sense. There are not (...) one but two concepts of basic equality, and they reflect not a grand unity within political philosophy but a deep and striking division. I call these concepts ‘Equal Worth’ and ‘Equal Authority’. The former means that each individual’s good is of equal moral worth. The latter means that no individual is under the natural authority of anyone else. Whilst these two predicates are not in themselves logically inconsistent, I demonstrate that they are inconsistent foundation stones for political theory. A theory that starts from Equal Worth will find it near impossible to justify Equal Authority. And a theory that starts from Equal Authority will find any fact about the true worth of things, including ourselves, irrelevant to justifying legitimate action. This helps us identify the origin of many of our deepest and seemingly intractable disagreements within political philosophy, and directs our attention to the need for a clear debate about the truth and/or relationship between the two concepts. In short, my call to arms can be summed up in the demand that political philosophers never again be allowed to claim ‘that all human beings are equals’ full stop. They must be clear in what dimension they claim that we are equals—Worth or Authority. (shrink)

Successful accounts of analogy in law have two burdens to discharge. First, they must reflect the fact that the conclusion of an argument by analogy is a normative claim about how to decide a certain case. Second, they must not fail to accord relevance to the fact that the source case was authoritatively decided in a certain way. We argue in the first half of this paper that the common view of the structure of analogical arguments in law cannot overcome (...) these hurdles. In the second half we develop an original account that aims to succeed where others failed. (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)

My goal in this paper is to advance a long-standing debate about the nature of moral rights. The debate focuses on the questions: In virtue of what do persons possess moral rights? What could explain the fact that they possess moral rights? The predominant sides in this debate are the status theory and the instrumental theory. I aim to develop and defend a new instrumental theory. I take as my point of departure the influential view of Joseph Raz, which for (...) all its virtues is unable to meet the challenge to the instrumentalist that I will address: the problem of justifying the enforcement of rights. I then offer a new instrumental theory in which duties are grounded on individuals’ interests, and individuals rights exist in virtue of the duties owed to them. I argue that my theory enables the instrumentalist to give the right sort of justification for enforcing rights. (shrink)

In the first section, I characterize skeptical theism more fully. This is necessary in order to address some important misconceptions and mischaracterizations that appear in the essays by Maitzen, Wilks, and O’Connor. In the second section, I describe the most important objections they raise and group them into four “families” so as to facilitate an orderly series of responses. In the four sections that follow, I respond to the objections.

Since its earliest incarnations, just war theory has included the requirement that war must be initiated and waged by a legitimate authority. However, while recent years have witnessed a remarkable resurgence in interest in just war theory, the authority criterion is largely absent from contemporary discussions. In this paper I aim to show that this is an oversight worth rectifying, by arguing that the authority criterion plays a much more important role within just war theorising than is commonly supposed. As (...) standardly understood, the authority criterion provides a necessary condition for the justification of the resort to war, but has no bearing on the question of permissible conduct in war. In opposition, I argue for an alternative interpretation of the criterion, which attributes to it a fundamental role in assessing this latter question. With this revised interpretation in place, I then demonstrate its advantages by applying it to the practical issue of armed conflicts that are initiated and fought by non-traditional belligerents. While several theorists have recognised that this common feature of modern armed conflict poses a challenge to mainstream just war theory in general—and to the authority criterion in particular—I argue that existing discussions frequently misconstrue the nature of the challenge, since they assume the standard interpretation of the authority requirement and its role within the theory. I then show that the revised interpretation provides a clearer account of both the challenge posed by non-traditional belligerency and the kind of response that it requires. (shrink)

According to Joseph Raz's sources thesis, the existence and content of authoritative directives must be identifiable by resort to the social fact of their provenance from a de facto authority, without regard to any of the normative considerations that the authority in question is supposed to rely on in its judgment. This article argues that the sources thesis fails to account for the role of jurisdictional considerations (namely, considerations about the scope of a de facto authority's power) in the identification (...) of valid law. It examines a legal system with a legislature and courts and a practice of constitutional review of legislation by the courts for its conformity with fundamental rights and argues that the special normative status of (at least some) authoritative directives in this legal system depends on respect for jurisdiction. An assessment of whether an authority has stayed intra vires involves recourse to the normative considerations that it is the authority's job to weigh up. This criticism of the sources thesis highlights the importance of incorporating jurisdiction into our philosophical accounts of legal authority. (shrink)

Robert Alexy has built his original theory of law upon pervasive claims for “necessary” features of law. In this article, I show that Alexy's claims suffer from two difficulties. First, Alexy is never clear about what he means by “necessity.” Second, Alexy writes as if there have been no challenges to claims of conceptual necessity. There have been such challenges and Alexy needs to answer them if his project is to succeed.

Existing accounts of the Rule of Law are inadequate and require fleshing out. The main value of the ideal of rule of law for liberal political theory lies in the notion of predictability, which is essential to individual autonomy. The author examines this connection and argues that conservative theories of rule of law claim too much. Liberal theory equates the rule of law with legality, which is only one of the elements necessary for a just social order.

A parallel may be drawn between the communicative aspect of civil disobedience and the communicative aspect of lawful punishment by the state. In punishing an offender, the state seeks to communicate both its condemnation of the crime committed and its desire for repentance and reformation on the part of the offender. Similarly, in civilly disobeying the law, a disobedient seeks to convey both her condemnation of a certain law or policy and her desire for recognition that a lasting change in (...) policy is required. When disobedients and authorities target each other, their confrontation allows for a direct comparison of the respective justifiability of their conduct. Their confrontation is explored in this paper with an eye to analysing how civil disobedients and authorities should engage with each other. (shrink)

The argument of this article is that the dual-nature thesis is not only capable of solving the problem of legal positivism, but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision-making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of legal argumentation (...) to both authoritative and non-authoritative reasons, and the distinction between rules as expressing a real “ought” and principles as expressing its ideal counterpart. All of this underscores the point that the dual nature of law is the single most essential feature of law. (shrink)

This article attempts to illustrate the originality, depth, and farsightedness of Joseph Raz's conception, especially his idea that legal norms provide us with protected reasons to act, that is, with first-order reasons to behave as they prescribe, and with second-order, exclusionary reasons not to act for reasons against what they prescribe. But the article also highlights some aspects that raise doubts in my mind, especially with regard to the scope of these exclusionary reasons. This in two ways: by asking, on (...) the one hand, in what sense and subject to what limits legal norms provide exclusionary reasons for the organs entrusted with applying the law, especially for judges, and on the other hand, how and to what extent legal norms provide citizens with exclusionary reasons. So, in recognizing the strength of the Razian conception, the article also points to some of the difficulties it faces. (shrink)

Coherentists fail to distinguish between the individual revision of a conviction and the intersubjective revision of a rule. This paper fills this gap. A conviction is a norm that, according to an individual, ought to be ascribed to a provision. By contrast, a rule is a judicially ascribed norm that controls a case and is protected by the formal principles of competence, certainty, and equality. A revision of a rule is the invalidation or modification such a judicially ascribed norm, provided (...) that the judge meets the burden of argumentation of formal principles. Thus, judges can revise their convictions without changing the law. (shrink)

Hart proposed that law is made possible by the practice among legal officials of observing conventional social rules, the most important being rules of recognition. This view has been dubbed the practice theory, and it has been attacked by many legal theorists. This paper argues that many criticisms of the practice theory fail because they misunderstand the nature of the organizational challenge to which rules of recognition are the solution. The challenge of constituting a legal system is essentially the challenge (...) of constituting a group agent, and when viewed through Pettit’s account of group agency, the practice theory can easily be defended. (shrink)

Consumers’ engagement in morally-questionable behaviors poses a serious threat to firms. To further the understanding of consumers’ behavior, this study explores the association and conflicts between their ethical and legal judgments. In addition, it examines the way consumers’ judgments depend on their mind-sets and the legal liability criterion of action. In two experiments, participants were asked to judge the ethicality and legality of consumers’ morally-questionable behaviors. Behavior activity and participants’ mind-sets were manipulated. The results show that consumers are more likely (...) to judge a behavior to be legal when they consider it ethical than when they consider it unethical. Nevertheless, conflicts between ethical and legal judgments are prevalent. Furthermore, ethical judgments, legal judgments, and the occurrence of conflicts between them depend on activity and on consumers’ mind-sets. Finally, consumers report uncertainty about the ethicality and legality of a wide range of morally-questionable behaviors. Thus, the results paint a picture of individuals who perceive the law to be often beyond their reach or in conflict with their ethical principles. They portray both ethical and legal judgments as dynamically-changing, subjective, and context-dependent. Theoretical contribution and business applications are discussed. (shrink)

Soft regulatory measures are often promoted as an alternative for existing regulatory regimes for nanotechnologies. The call for new regulatory approaches stems from several challenges that traditional approaches have difficulties dealing with. These challenges relate to general problems of governability, tensions between public interests, but also (and maybe particularly) to almost complete lack of certainty about the implications of nanotechnologies. At the same time, the field of nanotechnology can be characterized by a high level of diversity. In this paper, we (...) discuss and compare two models for framing public policy in relation to technology regulation: the first is a deliberative model based on foresight knowledge and the second the wide reflective equilibrium model, developed by political philosopher John Rawls. In both models, the aim is to find consensus on (a framework for) policy measures and regulation. On the basis of a critical discussion of the strengths and weaknesses of both models, some tentative conclusions are drawn for effective policy making and implementation based on soft law. (shrink)

This article discusses the desirability and feasibility of modeling precedents with multiple interpretations within factor-based models of precedential constraint. The main idea is that allowing multiple reasonable interpretations of cases and modeling precedential constraint as a function of what all reasonable interpretations compel may be advantageous. The article explains the potential benefits of extending the models in this way with a focus on incorporating a theory of vertical precedent in U.S. federal appellate courts. It also considers the costs of extending (...) the models in this way, such as the significant increase in the functional size of the case base and the need to provide some kind of ordering on interpretations to select a “best” interpretation. Finally, the article suggests partially incorporating multiple interpretations of dimensions as a realistic starting point for incorporating interpretations generally, and shows how doing so can help address difficulties with dimensions. The conclusion remarks on the use of interpretations to deal with inconsistent precedents. (shrink)

In this article, I argue,inter alia, that Kelsen’s mature view—as expressed in, and around the time of, the second edition ofReine Rechtslehre—was that of a metaethical relativist, and that the commitment to metaethical relativism was the reason why Kelsen defended democracy as well as tolerance in the shape of a constitutionally guaranteed freedom of thought. I also consider the possibility that in his post‐1960 phase Kelsen abandoned metaethical relativism for moral fictionalism, but argue that, on the whole, a relativist interpretation (...) of Kelsen’s late legal philosophy is to be preferred to a fictionalist interpretation. (shrink)

While the rule of law is surely a very important good, the familiar discussions found in the literature lead many to conclude that it is either a relatively trivial political ideal, or else a redundant one. What is needed is a new and persuasive defense of the rule of law that properly reflects its great significance for human well being. An important step towards building such an argument is to question a widely-shared but often unnoticed assumption that the rule of (...) law should be understood as a virtue of legal systems. The path is then cleared for a republican argument built on two theses: first, the thought that an ideal society would be one in which no one is the master of anyone else, and second, the thought that our freedom from domination is not natural or pre-institutional. (shrink)

European Journal of Philosophy, EarlyView.

The goal of this paper is to provide an accurate grounding-based formulation of positivism in the philosophy of law. I start off by discussing some simple formulations, based on the ideas that social facts are always either full or partial grounds of legal facts. I then raise a number of objections against these definitions: the full grounding proposal rules out possibilities that are compatible with positivism; the partial grounding proposal fails, on its own, to vindicate the distinctive role that is (...) played by social facts within positivist accounts of law. Then, I present a more adequate and insightful formulation capable of solving their problems, which crucially relies on a robust notion of a social enabler. Finally, I model inclusive and exclusive positivism on the resulting template, and set out the advantages of the ground-enablers proposal. (shrink)

Generally, regulation is thought of as a constant that carries with it both a formative and conservative power, a power that standardises, demarcates and forms an order, through procedures, rules and precedents. It is dominantly thought that the singularity and formalisation of structures like rules is what enables regulation to achieve its aim of identifying, apprehending, sanctioning and forestalling/pre-empting threats and crime or harm. From this point of view, regulation serves to firmly establish fixed and stable categories of what norms, (...) customs, morals and behaviours are applicable to a particular territory, society or community in a given time. These fixed categories are then transmitted onto individuals by convention, ritual and enforcement through imperatives of law (and technology) that mark certain behaviours as permissible and others as forbidden, off bounds. In this manner, regulation serves a programming (i.e., a calculable or determinable) purpose. It functions as a pro-active management or as a mastery of threats, risks, crimes and harms that affect a society and its security both in the future and in the present. Regulation for instance, will inscribe and codify what it determines to constitute crime or harm such as pornography, incitement of terrorism, extremist speech, racial hatred etc. These determined or calculated/calculable categories will then be enforced and regulated (e.g. through automated filtering) in order to ensure a preservation of public order within society. Drawing mainly from deconstruction, this article situates law and technologies within a wider ecological process of texts, speech and writing i.e., communication. In placing regulation within disseminatory and iterable processes of communication, this article complicates, destabilises and critiques the dominant position of determinability and calculability within the regulatory operations of law. (shrink)

The most influential theory of law in current analytic legal philosophy is legal positivism, which generally understands law to be a kind of institution. The most influential theory of institutions in current analytic social philosophy is that of John Searle. One would hope that the two theories are compatible, and in many ways they certainly are. But one incompatibility that still needs ironing out involves the relation of the social rule that undergirds the validity of any legal system (H.L.A. Hart's (...) rule of recognition) to Searle's notion of codification: the idea that institutions need official declarations of their constitutive rules in order to enjoy the full benefits of institutions. The incompatibility arises from the fact that, in order to do its institutional work, the basic validity rule must be codified in Searle's sense—yet, given the particular role it has in legal positivism, it may be impossible to codify in the Searlean sense. In this paper I develop the incompatibility in detail, consider and reject consigning the basic validity rule to Searle's “Background” capacities that support institutional facts, and conclude that the best route to eliminating it while doing a minimum of damage to the two theories is to make a slight emendation to Searle's theory of institutions. (shrink)

Joseph Raz’s theory of authority has become influential among moral, political, and legal philosophers. This article will provide an overview and accessible explanation of the theory, guiding those coming to it for the first time as to its theoretical ambitions within the wider issues of authority, and through its intricacies. I first situate the theory among philosophical examinations of authority, and then explain the theory itself in detail.

(2001). The rule of law and the rule of persons. Critical Review of International Social and Political Philosophy: Vol. 4, Trusting in Reason: Martin Hollis and the Philosophy of Social Action, pp. 221-251.

Despite increasing interest in studying arguments from deontic authority of the general form “(1) \(\delta\) is a deontic authority in institution \(\varOmega\) ; (2) according to \(\delta\), I should do \(\alpha\), _C_: therefore, (3) I should do \(\alpha\) ”, the state of the art models are not capable of grasping their complexity. The existing sets of critical questions assigned to this argumentation scheme seem to conflate two problems: whether a person is subject to an authority of an institution in the (...) first place and whether the command issued within the context of a particular institution is eventually binding. For this reason, we introduce (1) a set of Basic Critical Questions to scrutinize the former issue, and (2) a set of more detailed questions related to specific features, also referred to as “parameters”, of institutional environments (Intra-Institutional Critical Questions). We identify major elements of institutional environments in which authoritative utterances are made and the crucial parameters of arguments from deontic authority. The selected evidence from the decisions of the Polish Supreme Administrative Court helps us show how these parameters may be used to reconstruct subtypes of this argument scheme, with their associated sets of critical questions. In specific institutional contexts, such detailed schemes are capable of grasping the complexity of appeals to deontic authority and thus should be used rather than general schemes. The reconstruction of argumentation schemes with critical questions shows how particular arguments may successfully be attacked. (shrink)

This article models legal interpretation through argumentation and provides a logical analysis of interpretive arguments, their conflicts, and the resulting indeterminacies. Interpretive arguments are modelled as defeasible inferences, which can be challenged and defeated by counterarguments and be reinstated through further arguments. It is shown what claims are possibly (defensibly) or necessarily (justifiably) supported by the arguments constructible from a given interpretive basis, i.e., a set of interpretive canons coupled with reasons for their application. It is finally established under what (...) conditions such arguments provide single outcomes or rather support alternative interpretive conclusions, thus leading to propositions of law whose truth‐value is undetermined. (shrink)