This article seeks to clarify Joseph Raz’s contention that the task of the legal theorist is to explain the nature of law, rather than the concept of law. For Raz, to explain the nature of law is to explain the necessary properties that constitute it, those which if absent law would cease to be what it is. The first issue arises regarding his ambiguous usage of the expression “necessary property”. Concurrently Raz affirms that the legal theorist has the following tasks: (...) (a) explain the essential properties of that which the concept of law refers to, which exists independently from any concept of law; (b) explain the essential properties of law given our concept of law. After trying to dissolve the ambiguity of Raz’s argument, I conclude that based on his methodological commitments the only possible task for a legal philosopher would be conceptual analysis, understood as the task of explaining our concept of law. (shrink)

This article offers a functionalist account of trust. It argues that a particular form of trust—Communicated Interpersonal Trust—is paradigmatic and lays out how trust as a social practice in this form helps to satisfy fundamental practical, deliberative, and relational human needs in mutually reinforcing ways. We then argue that derivative (non-paradigmatic) forms of trust connect to the paradigm by generating a positive dynamic between trustor and trustee that is geared towards the realization of these functions. We call this trust’s proleptic (...) potential. Our functionalist approach does not only provide important insights into the practice of trust and its place in the broader web of social life, but also illuminates existing philosophical debates. First, pointing out how opposing theoretical accounts of trust each capitalise on only one of its functions, our paradigm-based approach reveals why they each contain a kernel of truth but are also deficient: the optimal realization of each function is tied to the existence of the other functions as well. Second, we show how a functionalist re-orientation can illuminate two recent disputes regarding (i) the question whether trust is explanatorily two- or three-place and (ii) whether (and to what extent) we can decide to trust others. (shrink)

H.L.A. Hart'sThe Concept of Lawis the most important and influential book in the legal positivist tradition. Though its importance is undisputed, there is a good deal less consensus regarding its core commitments, both methodological and substantive. With the exception of an occasional essay, Hart neither further developed nor revised his position beyond the argument of the book. The burden of shaping the prevailing understanding of his views, therefore, has fallen to others: notably, Joseph Raz among positivists, and Ronald Dworkin among (...) positivism's critics. Dworkin, in particular, has framed, then reframed, the conventional understanding, not only of Hart's positivism, but of the terms of the debate between positivists and him. While standing on the sidelines, Hart witnessed the unfolding of not only a lively debate between positivists and Dworkin, but an equally intense one among positivists as to positivism's (and his) core claims. The most important debate has been between so-called inclusive and exclusive positivists: a debate as much about Hart's legacy as about the proper interpretation of legal positivism. (shrink)

Dworkin's theoretical disagreement argument, developed in Law's Empire, is presented in that work as the motivator for his interpretive account of law. Like Dworkin's earlier arguments critical of legal positivism, the argument from theoretical disagreement has generated a lively exchange with legal positivists. It has motivated three of them to develop innovative positivist positions. In its original guise, the argument from theoretical disagreement is presented as ‘the semantic sting argument’. However, the argument from theoretical disagreement has more than one version. (...) This article briefly discusses two versions and the leading replies to them, then focuses on the most influential version, directed at Hartian positivism. The article surveys the leading positivist rejoinders to the recast version, indicating key Dworkinian replies or assessing the strength of these rejoinders, and concludes with a rejoinder of its own, making a new case that the argument from theoretical disagreement isn't fatal for Hartian legal positivism. (shrink)

In this analysis of Marcia Baron’s account of excuses, I seek to do two things. I try to draw out the nature of the distinction between forgiving and excusing. I also defend the distinction between excuses (like duress), and denials of responsibility (like insanity).

In modern jurisprudence it is taken as axiomatic that John Austin's sanction-based account of law and legal obligation was demolished in H.L.A. Hart's The Concept of Law, but Hart's victory and the deficiencies of the Austinian account may not be so clear. Not only does the alleged linguistic distinction between being obliged and having an obligation fail to provide as much support for the idea of a sanction-independent legal obligation as is commonly thought, but the soundness of Hart's claims, as (...) well as the claims of many legal theorists who have followed him, depend on a contested view of the nature of legal theory. If the task of a theory of law, as Joseph Raz and others have influentially argued, is to identify the essential features of the concept of law, then the theoretical possibility, if not the empirical reality, of a sanction-free legal system is what is most important. But if the task of a theory of law is to provide philosophical and theoretical illumination of law as it exists and as it is experienced, then a theory of law that fails to give a central place to law's coercive reality may for that reason be deficient as a theory of law. The question of the soundness of the Austinian account, therefore, may be a function of the answer to the question of what a theory of law is designed to accomplish. (shrink)

After the publication of Hart's Concept of Law, Dworkin published his article “The Model of Rules,” dividing positivism into two varieties: inclusive and exclusive. Many theorists involved in this debate have characterized Hart's position as inclusivist, which we reject in this article. We argue that Hart, in the postscript to The Concept of Law, conceded a point to Dworkin in accepting that inclusive positivism would imply the existence of objective moral standing, adopting a more “neutral” position—compatible with inclusive and exclusive (...) positivism—and consequently distancing himself from the incorporation thesis, which is paramount to inclusive positivism. (shrink)

In this short paper, I argue that legal philosophers ought to focus more than they have done so far on problems of legal reasoning. Not only is this a field with many philosophically interesting questions to consider, but it is also, in my estimation, the field in which legal philosophers can contribute the most to both the study and the practice of law. For even though reasoning and interpretation are at the center of what legal practitioners and legal scholars do, (...) neither legal practitioners nor legal scholars reason with the same care and precision as philosophers do. Against this background, I suggest that the following three types of questions regarding legal reasoning are especially worthy of serious consideration. The first is that of the possible relevance of the theory of reasons holism to legal reasoning in general. The second is the question of how to analyze legal statements in a way that does not undermine the rationality of legal reasoning. And the third is the question of whether legal arguments are to be understood as deductive arguments, or as inductive arguments, or both, and if so how. (shrink)

According to the received opinion there is a theoretical incompatibility between Herbert Hart's The Concept of Law and Alf Ross's On Law and Justice, and, according to the received opinion, it stems above all from Hart's emphasis on the internal point of view. The present paper argues that this reading is mistaken. The Concept of Law does not go beyond On Law and Justice in so far as both present arguments to the effect that law is based on a shared (...) understanding between participants in a project perceived by every participant to be a project in common. The paper demonstrates that there are substantive parallels between Hart's combination of “acceptance” or “acknowledgement” and a “critical reflective attitude” and Ross's combination of “motivation” or “feeling” and a “coherent whole of meaning and motivation.” The main conclusion is that the views of norms and normativity put forward in The Concept of Law and On Law and Justice are very close in essential respects, and, more specifically, that the two works are at root identical in their representation of the basis of normativity in reality. (shrink)

According to the received opinion there is a theoretical incompatibility between Herbert Hart'sThe Concept of Lawand Alf Ross'sOn Law and Justice, and, according to the received opinion, it stems above all from Hart's emphasis on the internal point of view. The present paper argues that this reading is mistaken.The Concept of Lawdoes not go beyondOn Law and Justicein so far as both present arguments to the effect that law is based on a shared understanding between participants in a project perceived (...) by every participant to be a project in common. The paper demonstrates that there are substantive parallels between Hart's combination of “acceptance” or “acknowledgement” and a “critical reflective attitude” and Ross's combination of “motivation” or “feeling” and a “coherent whole of meaning and motivation.” The main conclusion is that the views of norms and normativity put forward inThe Concept of LawandOn Law and Justiceare very close in essential respects, and, more specifically, that the two works are at root identical in their representation of the basis of normativity in reality. (shrink)

This essay presents a new theory of statutory application that is superior to two competitors. One of the competitors claims that statutory directives apply to act-tokens fitting the legislature's intention. The other holds that statutes apply to act-tokens that are of the genuine kinds named by the classifying words. These theories solve certain problems badly or not at all, respectively: (1) accounting for the capacity of statutes for epistemic guidance; and (2) avoiding literalism. Both do a limited job of accounting (...) for the rationality of statutory promulgation. The theory developed here, social salience theory, does better on all counts. According to social salience theory, the default position is that statutes apply to act-tokens that are socially salient, given the linguistic and social contexts. The departure from that position is also social, produced by conventions to defer to experts on the statute's applications to particular cases. (shrink)

Ratio Juris, Volume 35, Issue 3, Page 258-272, September 2022.

In this chapter I seek to rehabilitate and elaborate the so-called “mischief rule” of English law. I begin by interrogating two views of legal and constitutional interpretation which make symmetrical mistakes about legal interpretation: Larry Alexander and Emily Sherwin’s view in Demystifying Legal Reasoning and Jack Balkin’s in Living Originalism. Against these views I argue that the appropriate interpretation of laws is guided by the “mischief” the legislators were trying to remedy when they created the law and by what the (...) legislators and the subjects of the law understand when laws are created or changed. (shrink)