This is the most comprehensive book ever published on philosophical methodology. A team of thirty-eight of the world's leading philosophers present original essays on various aspects of how philosophy should be and is done. The first part is devoted to broad traditions and approaches to philosophical methodology. The entries in the second part address topics in philosophical methodology, such as intuitions, conceptual analysis, and transcendental arguments. The third part of the book is devoted to essays about the interconnections between philosophy (...) and neighbouring fields, including those of mathematics, psychology, literature and film, and neuroscience. (shrink)

Many claims about conceptual matters are often represented as, or inferred from, claims about the meaning, reference, or mastery, of words. But sometimes this has led to treating conceptual analysis as though it were nothing but linguistic analysis. We canvass the most promising justifications for moving from linguistic premises to substantive conclusions. We show that these justifications fail and argue against current practice (in metaethics and elsewhere), which confuses an investigation of a word’s meaning, reference, or competence conditions with an (...) analysis of some concept or property associated with that word. (shrink)

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 paper deals with the possibility of faultless disagreement in law. It does this by looking to other spheres in which faultless disagreement appears to be possible, mainly in matters of taste and ethics. Three possible accounts are explored: the realist account, the relativist account, and the expressivist account. The paper tries to show that in the case of legal disagreements, there is a place for an approach that can take into account our intuitions in the sense that legal disagreements (...) are genuine and at times faultless. (shrink)

The “naturalistic turn” that has swept so many areas of philosophy over the past three decades has also had an impact in the last decade in legal philosophy. Methodological naturalists (M-naturalists) view philosophy as continuous with empirical inquiry in the sciences. Some M-naturalists want to replace conceptual and justificatory theories with empirical and descriptive theories; they take their inspiration from more-or-less Quinean arguments against conceptual analysis and foundationalist programs. Other M-naturalists retain the normative and regulative ambitions of traditional philosophy, but (...) emphasize that it is an empirical question what normative advice is actually useable and effective for creatures like us. Some M-naturalists are also.. (shrink)

Two influential approaches to conceptualising the relationship between public and private law have suggested that the distinction between them should be abandoned. The first, as exemplified by Oliver, suggests that the distinction should be abandoned in favour of fusion based on the notion of commonality. The second, as exemplified by Teubner, rejects fusion, arguing for the replacement of the distinction with a concept capturing the multi-dimensional complexity of law in multiple social contexts: `polycontexturality'. This article focuses primarily on exploring conceptual (...) puzzles presented by Oliver's `commonality thesis', and argues for a reconceptualisation of the relationship between public and private law as multi-layered. Monolithic and rigidly binary concepts alike should be replaced by a complex set of relationships – a position broadly supportive of Teubner's. However, it is argued that the relationships between public and private law are to be seen as existing on a spectrum, or even on an overarching meta-spectrum, in which the existence of distinctive `archetypal conceptual paradigms' influence as `meta-spectrum extremities'. This presents a limited caveat to Teubner's thesis. I suggest that explicit theoretical attention to both the implications of polycontexturality and the existence of the archetypal conceptual paradigms as meta-spectrum extremities might avoid occluding important distinctions and nuances within a fusion that tends illegitimately to subsume private law within a public law paradigm. Such an analysis, I argue, could enhance the coherence of the law in complex, multi-dimensional cases at the troubled borderline between public and private law. (shrink)

Relationships between empirical and philosophical approaches to the law have not been always peaceful. Agreement seems the most natural way to build up and implementing regulations and justice within human-machine inter-faces (natural and artificial societies), and might help to bridge the gap between both theoretical approaches. Recent researches on relational law, relational jus-tice, crowdsourcing, regulatory systems and regulatory models are introduced. These concepts need further clarification, but they stand as political companions to more standard conceptions of law in the Semantic (...) Web. (shrink)

This chapter develops an account of the meaning and use of various types of legal claims, and uses this account to inform debates about the nature and normativity of law. The account draws on a general framework for implementing a contextualist theory, called 'Discourse Contextualism' (Silk 2016). The aim of Discourse Contextualism is to derive the apparent normativity of claims of law from a particular contextualist interpretation of a standard semantics for modals, along with general principles of interpretation and conversation. (...) Though the semantics is descriptivist, it avoids Dworkin’s influential criticism of so-called “semantic theories of law,” and elucidates the nature of “theoretical disagreements” about the criteria of legal validity. The account sheds light on the social, interpersonal function of normative uses of language in legal discourse. It also gives precise expression to Hart’s and Raz’s intuitive distinctions among types of legal claims (internal/external, committed/detached), while giving them a uniform type of analysis. The proposed semantics and pragmatics of legal claims provides a fruitful framework for further theorizing about the nature and metaphysics of law, the relation between law and morality, and the apparent practical character of legal language and judgment. Discourse Contextualism provides a solid linguistic basis for a broader account of legal discourse and practice. (shrink)

Hart's and Kelsen's respective outlooks on the concept of normativity not only differ by the way they explain this concept but also, more importantly, in what they seek to achieve when endeavouring to account for the normative dimension of law. By examining Hart's and Kelsen's models in the light of Korsgaard's understanding of the “normativity problem,” my aim is to emphasise not only their contrasted perspectives, but also the common limit they impose on their theories by dismissing as inappropriate any (...) question regarding the emergence of legal normativity. On the basis of my previous arguments, I shall explain why I deem Raz's analysis of the contrast between Hart's and Kelsen's conceptions of normativity to be misleading. (shrink)

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 (...) in tension with each other, and that there are good reasons for thinking that an account that tries to discover the important features about law will not limit itself only to those features that all laws necessarily possess. The second version is one that tries to discover what necessarily belongs to “our” concept (or practice) of law by looking at those features that participants in the practice of law deem most important about it. I argue that this argument is indeterminate because it has no non-circular standard of defining what belongs to “our” concept of law. I then offer an alternative role for jurisprudence that focuses on trying to solve certain puzzles about law, such as explaining how a social practice can create binding norms. Answering questions of legal philosophy does not require finding what features all laws necessarily possess while maintaining a role for jurisprudence alongside other interdisciplinary approaches to law. (shrink)

A general practice of precedent is one that can plausibly apply to any well-functioning legal system. This practice, which can be grounded in the Rule of Law, needs to make it the case that courts always have a legal reason for following relevant precedent – even if the precedent is morally suboptimal, so long as it is not evil. Without this reason, a precedent may be treated as having no legal influence for the later court (‘the Null Model’), and this (...) runs counter to the Rule of Law. On top of this reason, courts may have a general legal obligation to follow precedent – stare decisis – but this risks entrenching morally bad decisions in the law. We need, therefore, a type of reason that lies in between the Null Model and stare decisis as a necessary step for any future justification of stare decisis. But how can courts have a legal reason for following morally suboptimal precedent? They can have that reason, I argue, in virtue of a specific judicial duty, positively laid down in a legal source, which aims to advance the Rule of Law in an institutionalised way. In this article, I aim to explain and justify that judicial duty. (shrink)

Ronald Dworkin is one of the most important, and one of the most controversial, contemporary legal philosophers. This article elucidates the main aspects of Dworkin's theory of law, discussing both his key criticisms of legal positivism and his own positive views about law. The article also briefly examines some of the major controversies surrounding Dworkin's theory of law, such as the debates arising out of his right answer thesis and semantic sting argument.

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).

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 (...) not be capable of satisfying the requirements for possessing authority laid down by the correct account of authority. Thus, even if exclusive legal positivism is the only theory of law according to which the law can satisfy those requirements, this does not show that exclusive legal positivism is correct. (shrink)

El positivismo jurídico como enfoque, en general, y el realismo jurídico en particular siguen al menos tres variantes filosóficas: el empirismo, el naturalismo y el pragmatismo. El realismo jurídico contemporáneo tiene múltiples variantes. Se habla de realismo norteamericano, escandinavo e italiano. Sin embargo, las corrientes del realismo jurídico no suelen seguir completamente a las teorías filosóficas. Más bien siguen algunas tesis, abandonan otras, y desarrollan algunas tesis propias complementarias. El presente trabajo se ocupa de una variante del realismo jurídico e (...) intenta mostrar que las tesis que éste movimiento sostiene generan numerosas tensiones. Lo que aquí se sostiene sobre el realismo analizado tiene relevancia, a su vez, sobre lo que se conoce como positivismo jurídico en cuanto enfoque. (shrink)