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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 (...) |
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Political theorist Jeremy Waldron makes a bracing case against identifying rule of law with predictability. Seeing the rule of law as just one value to which democracies aspire, he embraces thoughtfulness rather than rote rule-following, flexibility even at the cost of vagueness, and emphasizing procedure and argument over predictable outcomes. |
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Ratio Juris, Volume 34, Issue 4, Page 331-355, December 2021. |
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The norms of a legal system are relevant in deciding on people's rights and duties within that system. Some norms that are not part of a legal system are also relevant within it: norms of foreign legal systems, games, clubs, contracts, grammar, and so on. What distinguishes the norms of a legal system from the norms merely relevant within it? Where, in other words, are law's boundaries? There are three existing answers in the literature, from Kramer, Shapiro, and Raz. None (...) |
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Genomic research is an expanding and subversive field, leaking into various others, from environmental protection to food production to healthcare delivery, and in doing so, it is reshaping our relationship with them. The international community has issued various declaratory instruments aimed at the human genome and genomic research. These soft law instruments stress the special nature of genomics and our genetic heritage, and attempt to set limits on our activities with respect to same, as informed by the human rights paradigm. (...) |
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Systemic validity has been criticised based on its supposed inability to account for the validity of so-called extra systemic norms and unconstitutional statutes. The article argues that these crit... |
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This paper offers a critical assessment of the way the influential “conception of law as a shared activity” explains the normative component of law in general and legal obligation in particular. I argue that the conception provides a bipartite account of legal obligation: we have full-blooded legal obligation, carrying genuine practical force, and legal obligation in a perspectival sense, the purpose of which is not to engage with us in practical reasoning, but simply to state what we ought to do (...) |
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American legal realism is commonly treated as a theory-pariah. The article exposes certain reasons explaining such a treatment. Generally, it seems that such an attitude is a result of many misunderstandings of realist aims and ambitions, some of which pertain to the theoretical status of legal realism and its relation to so called general jurisprudential theories, such as legal positivism. In the first part of the article I explain generally what these aims were and how one should see these relations. (...) |
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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 (...) |
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The central argument of this article turns on the dual‐nature thesis. This thesis sets out the claim that law necessarily comprises both a real or factual dimension and an ideal or critical dimension. The dual‐nature thesis is incompatible with both exclusive legal positivism and inclusive legal positivism. It is also incompatible with variants of non‐positivism according to which legal validity is lost in all cases of moral defect or demerit (exclusive legal non‐positivism) or, alternatively, is affected in no way at (...) |
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ABSTRACT The current article is inserted in the domain of legal theory, having as objective to discuss the concept and the centrality of authority in contemporaneous debate around legal positivism, just as offer an alternative position, sustained by Pashukanis and based on legal subject (a nearly forgotten category, overshadowed by the horizon of legal norm and its authority). The study proceeds with a comparative analysis of the notion of authority in legal positivism’s classical authors (Austin, Kelsen e Hart), pointing out (...) |
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This article contains the author's responses to five critics of his book Law as a Leap of Faith whose criticisms appear in this journal. The critics are Kimberley Brownlee, Antony Hatzistavrou, Kristen Rundle, Sari Kisilevsky and Nicola Lacey. The criticisms and responses pick up the following fifteen themes from the book: law, morality, society, explanation, continuity, rationality, ends, instruments, values, justice, allocation, games, modalities, generalities, jurisprudence. |
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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 (...) |
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There are all sorts of ways in which one can dirty one’s hands in politics. The classic problem is that of the political leader who finds he has to act immorally for the sake of the greater good. But some dirty-hands problems are more mundane. They arise out of the fact that one acts in politics alongside others, particularly in a democracy, and so one is not always in control of the values and principles that are being put into play. (...) |
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Much of the work in contemporary jurisprudence is done on the assumption that legal philosophy should find the set of necessary and sufficient conditions that something must have in order to count as law. This essay challenges this view. It examines in detail two versions of this view: the first is the view that jurisprudence should find the necessary features of law and then, from among them, those that are “important” for understanding law. I argue that these two features are (...) |
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Some authors have speculated about the fact that if the law were connected to morality, then it would not be relevant, because morality would be enough to regulate social life. A study of this objection to the connection thesis will be outlined in this paper. In other words, the possible answers to the question about the practical difference that law gives to morality will be analyzed. The work of the Argentine philosopher Carlos Nino will be taken as the starting point (...) |
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Abstract. The purpose of this paper is to address some of the main issues of contemporary jurisprudential methodology by considering the contribution of Jules Coleman to this subject. After a description of Coleman's methodological approach and a clarification of its philosophical background, the paper focuses on some related problems, such as the relation between linguistic meaning and conceptual content, the nature of legal concepts, the different aspects of the normativity of content, and the revisability of conceptual truths. |
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In this article, we propose a novel account of general jurisprudence by situating it within the broader project of metanormative inquiry. We begin by showing how general jurisprudence is parallel to another well-known part of that project, namely, metaethics. We then argue that these projects all center on the same task: explaining how a certain part of thought, talk, and reality fits into reality overall. Metalegal inquiry aims to explain how legal thought, talk, and reality fit into reality. General jurisprudence (...) |
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Jurisprudential debate about the grounds of law often focuses on the status of morality. Given the undoubted fact of judicial engagement with morality in legal reasoning, the key question is whether morality legitimately counts as a ground of law. This article seeks to challenge the special status accorded to morality in debates about the grounds of law. The claim I seek to advance is that very often judicial engagement with morality is not different in kind to judicial engagement with other (...) |
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Joseph Raz famously argues that given that the law necessarily claims authority and given the account of authority he provides, exclusive legal positivism is the only tenable theory of law. In this article, I contend that even if one accepts that the law necessarily claims authority and that Raz's account of authority is correct, it does not follow that exclusive legal positivism is the only tenable theory of law. This is because even if the law necessarily claims authority, it need (...) |
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The article presents a vision of the challenges to which contemporary legal positivism has to respond. The constitutionalisation that governs current legal systems offers a new framework in which to develop the classic controversy between positivism and iusnaturalism. This article analyses the different positivist proposals put before the reality of the constitutional state as well as its replies to the criticisms of those who consider it anoutdated theory of little use. Finally, it will also deal with the relationship between positivism (...) |
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