This paper is about when associations, and in particular associations that are part of the state, should be treated as legal persons. I distinguish two forms of association – those that render coherent the agency of their members and those that are group agents – and argue that only the latter should be treated as persons. Following this, I discuss the conditions under which associations that are part of the state can legitimately be group agents.

Contra recent, inflationary views, the paper submits a deflationary approach to legal ontology. It argues, in particular, that to answer ontological questions about legal entities, we only need conceptual analysis and empirical investigation. In developing this proposal, it follows Amie Thomasson’s ‘easy ontology’ and her strategy for answering whether ordinary objects exist. The purpose of this is to advance a theory that, on the one hand, does not fall prey to sceptical views about legal reality (viz., that ontological truths about (...) legal entities are established by metaphysical principles); and, on the other, is compatible with common-sense jurisprudence (viz., that there in fact exist legal entities, and they all have important practical implications). While this methodology is common to legal philosophers interested in elucidating the ‘artifactual nature’ of law, the paper departs from their projects by taking a step forward in connecting this deflationary approach to legal ontology with an expressivist account of legal discourse, thus providing enough resources to satisfy the general ambition of jurisprudence, viz., to establish the conditions for the analysis of legal reality and its normative character. (shrink)

This chapter offers an overview of experimental legal philosophy with a special focus on questions in general jurisprudence, that part of legal philosophy that asks about the concept and nature of law. Much of the experimental general jurisprudence work has tended to follow the questions that have interested general jurisprudence scholars for decades, that is, questions about the relation between legal norms and moral norms. Wholesale criticism of experimental general jurisprudence is scant, but, given existing debates about experimental philosophy generally, (...) one can anticipate where disagreement is likely to occur. Outside of experimental general jurisprudence, there is plenty of vibrant discussion about how experimental results can enrich our understanding of various concepts that figure in everyday legal thought such as causation, intention, consent, or meaning. In the future, experimental legal philosophers should continue to consider the degree to which their project is purely descriptive or whether it is revisionary or pragmatic in its ambitions. Also, future work might consider whether to focus more attention on legal experts. (shrink)

In this paper, I contrast two approaches to political legitimacy, both influenced by Rawls. One is the classic political liberal picture, according to which a state is legitimate if its “constitutional essentials” could be endorsed by reasonable citizens. The alternative is the idea that what makes a state legitimate is primarily its success at organizing the basic structure in a way that is demonstrably favorable to the governed. Specifically, I suggest that a state is legitimate insofar as it organizes the (...) basic structure in a manner that makes it easier for citizens to behave justly towards one another and adopt autonomous choices. I then move to demonstrate the superiority of this normative impact solution to the problem of legitimacy vis-à-vis political liberalism, even when reasonable disagreement about justice is factored in. (shrink)

How should we make sense of praise and blame and other such reactions towards collective agents like governments, universities, or corporations? My argument is that collective agents do not have to qualify as moral agents for us to make sense of their responsibility. Collective agents can be appropriate targets for our moral feelings and judgements because they can maintain and express moral positions of their own. Moral agency requires being capable of recognizing moral considerations and reasons. It also necessitates the (...) ability to react reflexively to moral matters, i.e., to take into account new moral concerns when they arise. While members of a collective agent are capable of this, the collective frames the thinking of the individual moral agents within it and affects their options in myriad ways. The moral positions thus formed and expressed belong to the collective. Crucially, unlike marginal moral agents, collective agents as moral actors can be held fully responsible for their acts and omissions. (shrink)

Legal discourse consists largely of legal claims. These are claims that there is a legal obligation, legal right, or other legal incident. What is the meaning of “legal obligation”, “legal right” and so on in legal claims? The standard view among philosophers of law is that “legal” indicates that, according to law, there is a moral obligation, moral right or other moral incident. Here I set out a new objection to the standard view. The objection is that the standard view (...) is unable to account for the use of legal claims in some common forms of logically complex arguments. (shrink)

Many business transactions and employment contracts are wrongfully exploitative despite being consensual and beneficial to both parties, compared with a nontransaction baseline. This form of exploitation can present governments with a dilemma. Legally permitting exploitation may send the message that the public condones it. In some economic conditions, coercively enforced antiexploitation law may harm the people it is intended to help. Under these conditions, a way out of the dilemma is to enact laws with provisions that lack coercive enforcement. Noncoercive (...) law would convey the state’s condemnation of wrongful exploitation without risking the harmful effects of coercively enforced law. It would also give firms and their agents a way of explaining nonexploitative pricing decisions to investors, and it may help give precise content to the moral duty to set prices and wages fairly. Governments should thus consider noncoercive law a viable component of their responses to exploitation. (shrink)

Dass wir alle in einer gemeinsamen Wirklichkeit leben, setzen wir meist unhinterfragt voraus. Sehen Andere die Welt dann doch einmal anders, mag es uns scheinen, als sähen sie diese einfach nicht so, wie sie wirklich ist. Schwerer fällt uns anzuerkennen, dass andere zuweilen in ganz anderen Wirklichkeiten unterwegs sind als wir selbst. - Tom Poljansek zeigt, wie sich die Vorstellung einer Pluralität menschlicher Wirklichkeiten mit der Annahme einer wahrnehmungsunabhängigen Realität vereinbaren lässt, ohne sich in einen Relativismus der vielen Wirklichkeiten zu (...) verlaufen. In Auseinandersetzung mit »kontinentalen« und »analytischen« Ansätzen legt er eine elegante Theorie menschlicher Wirklichkeiten vor, die konstruktivistische und realistische, phänomenologische und naturalistische Motive unerwartet miteinander verbindet. (shrink)

In this essay both the facts/values and facticity/normativity divides are considered from the perspective of global semiotics and with specific regard to the relationships between legal meaning and spatial scope of law’s experience. Through an examination of the inner and genetic projective significance of categorization, I will analyze the semantic dynamics of the descriptive parts comprising legal sentences in order to show the intermingling of factual and axiological/teleological categorizations in the unfolding of legal experience. Subsequently, I will emphasize the translational (...) and enactive cognitive disposition underlying the construction of the second premise of the so-called judiciary syllogism and thereby the untenability of the idea that ‘law makes its facts.’ Hence, I will try to bring to the fore the cultural pre-assumptions encapsulated in the positivistic and therefore also formalistic or analytical approaches to legal experience and the loss of their inner consistency when legal experience confronts the phases and major changes of global semiotics. Finally, I will strive to relativize the opposition between the positivist and non-positivistic theories of law in view of an understanding of legal experience focused not only, or at least not primarily, on what ‘law is’ but also on ‘how’ it unwinds through, and _in spite of_, environmental and semantic transformations. (shrink)

This chapter discusses two different issues about the relationship between legal positivism and robust normativity (understood as the most authoritative kind of normativity to which we appeal). First, the chapter argues that, in many contexts when discussing “legal positivism” and “legal antipositivism”, the discussion should be shifted from whether legal facts are ultimately partly grounded in moral facts to whether they are ultimately partly grounded in robustly normative facts. Second, the chapter explores an important difference within the kinds of arguments (...) that legal philosophers give for the (purported) truth of legal positivism. The difference concerns whether (purportedly) robustly normative facts are appealed to as premises in those arguments or not. (A closely connected issue is whether (purportedly) normative facts that bear one or more important connections to robustly normative facts are appealed to in premises to those arguments.) The chapter argues that thinking about this dividing line helps people better situate the positivist/antipositivist dispute, better understand the space of views in legal philosophy, better evaluate those views, and avoid having merely verbal disputes. (shrink)

Legal norms are an invention. This paper advances a proposal about what kind of invention they are. The proposal is that legal norms derive from rules which specify role functions in a legal system. Legal rules attach to agents in virtue of their status within the system in which the rules operate. The point of legal rules or a legal system is to solve to large scale coordination problems, specifically the problem of organizing social and economic life among a group (...) of people and their successors, though not every legal rule pertains to a coordination problem. The framework for thinking about legal norms that I describe is a framework for thinking about institutions and policies more generally. The idea is to show that legal norms are a species of institutional norm. There are two central ideas. The first is the idea of a role in an institution. The second is the idea of proxy agency. Proxy agency involves one agent or group acting under the authorization of another agent or group (perhaps subsuming it) in a way that makes the actions of the proxy count as actions (under a description) of the individual or group for which it is a proxy. We get the characteristic structure of a legal system by conceiving of an institutional group, itself conceived of as a set of interlocking roles realized in individuals, as having one or more roles for proxy agents who are authorized by the group to make policy for the group. The set of rules governing the basic constitution of the group and spelling out the powers of the policy proxies determine fundamental norms for the group with specific role responsibilities attaching to particular positions in institutional arrangements. The policies determine further norms whose force derives from the fundamental norms. We must then say some further things to distinguish institutions and policies which we wish to designate as legal. (shrink)

ABSTRACT Most theorists agree that our social order includes a distinctive legal dimension. A fundamental question is that of whether reference to specific legal phenomena always involves a commitment to a particular moral view. Whereas many philosophers advance the ‘positivist’ claim that any correspondence between morality and the law is just a function of political circumstance, natural law theorists insist that law is intrinsically moral. Each school claims the crucial advantage of consistency with our folk concept. Drawing on the notion (...) of dual character concepts, we develop a set of hypotheses about the intuitive relation between a rule’s moral and legal aspects. We then report a set of studies that conflict unexpectedly with the predictions by legal positivists. Intuitively, an evil rule is not a fully-fledged instance of law. (shrink)

The experimental turn in philosophy has reached several sub-fields including ethics, epistemology, and metaphysics. This paper is among the first to apply experimental techniques to questions in the philosophy of law. Specifically, we examine Lon Fuller's procedural natural law theory. Fuller famously claimed that legal systems necessarily observe eight principles he called "the inner morality of law." We evaluate Fuller's claim by surveying both ordinary people and legal experts about their intuitions about legal systems. We conclude that, at best, we (...) should be skeptical of Fuller's inner morality of law in light of the experimental data. (shrink)

We study shared intentions in what we call “loose groups”. These are groups that lack a codified organizational structure, and where the communication channels between group members are either unreliable or not completely open. We start by formulating two desiderata for shared intentions in such groups. We then argue that no existing account meets these two desiderata, because they assume either too strong or too weak an epistemic condition, that is, a condition on what the group members know and believe (...) about what the others intend, know, and believe. We propose an alternative, pooled knowledge, and argue that it allows formulating conditions on shared intentions that meet the two desiderata. (shrink)

The standard model of precedential constraint holds that a court is equally free to modify a precedent of its own and a precedent of a superior court—overruling aside, it does not differentiate horizontal and vertical precedents. This paper shows that no model can capture the U.S. doctrine of precedent without making that distinction. A precise model is then developed that does just that. This requires situating precedent cases in a formal representation of a hierarchical legal structure, and adjusting the constraint (...) that a precedent imposes based on the relationship of the precedent court and the instant court. The paper closes with suggestions for further improvements of the model. (shrink)

[ENG] The aim of this paper is to analyze the „possibility puzzle” presented by Shapiro (2011) in the context of the debate between conventionalism and non-conventionalism in speech act theory. Conventionalism claims that for every speech act there is a pattern (convention) which determines its illocutionary force. To perform a felicitous speech act is to fulfil necessary and sufficient conditions for this particular speech act. Non-conventionalism criticizes the view that for every speech act there is a conventional pattern and hidden (...) conditions, which are to be fulfilled. This view maintains the conventional thesis for the so-called strict conventional speech acts (e.g. performatives), but negates using universal quantifier for so-called communicative speech acts whose aim is, in short, to express an intention and force someone to act by virtue of this intention. As in (Shapiro 2011), Phil said: in order for someone to have the power to make, change and apply rules, there has to be a rule that empowers someone to do so. This objection concerned „The First Legis- lator” only from the conventional perspective on speech acts. If it can be maintained that The First Legislator’s speech acts may be non-conventional, then Phil’s argument misses the point. Finally, I will emphasize that only lawyers analyze „the very first speech acts” whereas for philosophers, the problem of e.g. „the very first question” is less absorbing. -/- [PL] Celem niniejszego artykułu jest przedstawienie tak zwanej Aporii Phila (possibility puz- zle) przedstawionej przez Shapiro (2011) w kontekście sporu konwencjonalizm–nonkon- wencjonalizm w teorii aktów mowy. Konwencjonalizm utrzymuje, że dla każdego aktu mowy istnieje konwencja, która determinuje moc illokucyjną aktu. Wykonać w pełni for- tunny akt mowy to spełnić wystarczające i konieczne warunki określone dla danego aktu mowy. Nonkonwencjonalizm krytykuje pogląd, że dla każdego aktu mowy istnieje okre- ślona konwencja oraz ukryte warunki, które należy spełnić. Ten pogląd utrzymuje kon- wencjonalną tezę dla tak zwanych stricte konwencjonalnych aktów mowy (na przykład performatywów), ale neguje użycie dużego kwantyfikatora dla tak zwanych komunika- cyjnych aktów mowy, których celem jest, w skrócie, wyrażenie pewnej intencji i zmusze- nie kogoś poprzez jej wyrażenie do określonego postępowania. Phil, bohater historii z książki Shapiro (2011), podkreślił, iż zawsze musi istnieć reguła upoważniająca do two- rzenia prawa. Ten zarzut dotyczący „Pierwszego Legislatora” jest zasadny tylko z per- spektywy konwencjonalizmu. Jeżeli można utrzymywać, że akt mowy Pierwszego Legislatora może być nonkonwencjonalny, wtedy argument Phila jest nietrafny. Na końcu scharakteryzowany jest następujący fenomen: tylko prawnicy analizują „pierwsze akty mowy”, natomiast dla filozofów problem „pierwszego pytania” nie jest tak absorbujący. (shrink)

Social ontology is the study of the nature and properties of the social world. It is concerned with analyzing the various entities in the world that arise from social interaction. -/- A prominent topic in social ontology is the analysis of social groups. Do social groups exist at all? If so, what sorts of entities are they, and how are they created? Is a social group distinct from the collection of people who are its members, and if so, how is (...) it different? What sorts of properties do social groups have? Can they have beliefs or intentions? Can they perform actions? And if so, what does it take for a group to believe, intend, or act? -/- Other entities investigated in social ontology include money, corporations, institutions, property, social classes, races, genders, artifacts, artworks, language, and law. It is difficult to delineate a precise scope for the field (see section 2.1). In general, though, the entities explored in social ontology largely overlap with those that social scientists work on. A good deal of the work in social ontology takes place within the social sciences (see sections 5.1–5.8). -/- Social ontology also addresses more basic questions about the nature of the social world. One set of questions pertains to the constituents, or building blocks, of social things in general. For instance, some theories argue that social entities are built out of the psychological states of individual people, while others argue that they are built out of actions, and yet others that they are built out of practices. Still other theories deny that a distinction can even be made between the social and the non-social. -/- A different set of questions pertains to how social categories are constructed or set up. Are social categories and kinds produced by our attitudes? By our language? Are they produced by causal patterns? And is there just one way social categories are set up, or are there many varieties of social construction? -/- The term ‘social ontology’ has only come into wide currency in recent years, but the nature of the social has been a topic of inquiry since ancient Greece. As a whole, the field can be understood as a branch of metaphysics, the general inquiry into the nature of entities. (shrink)

The principle of fair play is widely thought to require simply that costs and benefits be distributed fairly. This gloss on the principle, while not entirely inaccurate, has invited a host of popular objections based on misunderstandings about fair play. Central to many of these objections is a failure to treat the principle of fair play as a transactional principle—one that allocates special obligations and rights among persons as a result of their interactions. I offer an interpretation of the principle (...) of fair play that emphasizes its similarities to another transactional principle: consent. This interpretation reveals that playing fair requires one to reciprocate specifically by following the rules of the cooperative scheme from which one benefits, just as consent requires one to act according to the terms of an agreement. I then draw on the comparison with consent to reply to some popular and persistent objections to the principle. (shrink)

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)

Many existing defenses of group rights seem to rely on the notion of group freedom. To date, however, no adequate analysis of this notion has been offered. Group freedom is best understood in terms of processes of social categorization that are embedded in social mechanisms. Such processes often give rise to group-specific constraints and enablements. On the proposed social mechanism account, group rights are demands for group freedom. Even so, group rights often serve to eradicate individual unfreedom. Furthermore, generic measures (...) sometimes provide the most appropriate solution to a problem of group unfreedom. (shrink)

The philosophical literature on state legitimacy has recently seen a significant conceptual revision. Several philosophers have argued that the state's right to rule is better characterized not as a claim right to obedience, but as a power right. There have been few attempts to show that traditional justifications for the claim right might also be used to justify a power right, and there have been no such attempts involving the principle of fair play, which is widely regarded as the most (...) promising basis for a claim right to obedience. William Edmundson argues that the principle of fair play cannot generate power rights, and so any attempt at a fair play account of legitimacy must fail. I explain how fair play could generate a power right, owing to its stipulation that the rules of a cooperative scheme specify the form of participants' repayment. (shrink)

Zero tolerance policies are often mistakenly thought to be the best way to deal with pressing social problems. However, most arguments for zero tolerance policies are either based on inaccurate premises or they commit the zero tolerance fallacy. This paper explores ways that we might counteract the bias in favor of zero tolerance policies by adding a query list to the choice architecture.

It is sometimes thought that the normative justification for responding to large-scale violations of human rights via the judicial appararatus of trial and punishment is undermined by the desirability of reconciliation between conflicting parties as part of the process of conflict resolution. I take there to be philosophical, as well as practical and psychological issues involved here: on some conceptions of punishment and reconciliation, the attitudes that they involve conflict with one another on rational grounds. But I shall argue that (...) there is a conception of political reconciliation available which does not involve forgiveness and this forms of reconciliation may be the best we can hope for in many conflicts. Reconciliation is nevertheless likely to require the expression of what Darrell Moellendorf has called 'political regret' and the denunciatory role aspect of punishment makes it particularly well-suited to this role. (shrink)

This paper presents an analysis of the various dimensions of independence and impartiality. Among other things, I will argue that the two concepts, both of which are profoundly implicated in the rule of law, can be conceived as values and are perfectly distinguishable from each other. I will also propose a conception of neutrality, as a third distinct value that satisfies the requirement for non-redundancy with regard to independence and impartiality. Hence, judges and arbitrators must be independent, impartial and neutral. (...) Each of these values contributes in different ways to enabling the law to fulfil its distinctive function of facilitating social interaction in complex and plural societies. (shrink)

We are responsible for some things but not for others. In this thesis, I investigate what it takes for an entity to be responsible for something. This question has two components: agents and actions. I argue for a permissive view about agents. Entities such as groups or artificially intelligent systems may be agents in the sense required for responsibility. With respect to actions, I argue for a causal view. The relation in virtue of which agents are responsible for actions is (...) a causal one. I claim that responsibility requires causation and I develop a causal account of agency. This account is particularly apt for addressing the relationship between agency and moral responsibility and sheds light on the causal foundations of moral responsibility. (shrink)

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)

Whether collective agency is a coherent concept depends on the theory of agency that we choose to adopt. We argue that the enactive theory of agency developed by Barandiaran, Di Paolo and Rohde (2009) provides a principled way of grounding agency in biological organisms. However the importance of biological embodiment for the enactive approach might lead one to be skeptical as to whether artificial systems or collectives of individuals could instantiate genuine agency. To explore this issue we contrast the concept (...) of collective agency with multi-agent systems and multi-system agents, and argue that genuinely collective agents instantiate agency at both the collective level and at the level of the component parts. Developing the enactive model, we propose understanding agency – both at the level of the individual and of the collective – as spectra that are constituted by dimensions that vary across time. Finally, we consider whether collectives that are not merely metaphorically ‘agents’ but rather are genuinely agentive also instantiate subjectivity at the collective level. We propose that investigations using the perceptual crossing paradigm suggest that a shared lived perspective can indeed emerge but this should not be conflated with a collective first-person perspective, for which material integration in a living body may be required. (shrink)

Many of the problems we face can usefully be modeled as prisoners’ dilemmas. All the standard game-theoretic solutions to prisoners’ dilemmas lead, in the real world, to assurance games. But too often some aspects of our social interaction are as much obscured by, as illuminated by, game theory. Removing some of the epistemic constraints often accepted by game theorists will enable us to distinguish between productive and destructive prisoners’ dilemmas. Doing so is an important step in understanding the nature of (...) some of our social problems. (shrink)

Recent philosophical research on normativity has clarified the nature and dynamics of social norms. Social norms are distinguished from legal and moral norms on the basis of their scope, their grounds, their characteristic forms of accountability, or some combination of these features. Because of their distinct character, social norms can reinforce practical prescriptions, prohibitions, and permissions provided to particular actors by legal or moral norms. They also can conflict drastically with those prescriptions, prohibitions, and permissions resulting in serious practical dilemmas. (...) The identification of normative principles capable of resolving practical dilemmas arising from conflicts between different kinds of norms is a major aim of contemporary moral and political philosophy. This dissertation contributes to this aim by establishing the significance of conflicts between social norms and legal or moral norms during mass atrocities and liberalizing political transitions. The dissertation argues that social norms, and changes in social norms, are critical components of accurate descriptions and responsible evaluations both legal and moral of the actions of individuals and groups before, during, and after mass atrocities. The dissertation contends, further, that distinct principles of justice may apply to transitional efforts by non-state actors to transform social norms in societies recovering from large-scale crimes. Three principal results follow from this dissertations effort to integrate the conceptual framework of social norms into the study of mass atrocity. First, the dissertation clarifies and extends the historiographical thesis of norm transformation, according to which participation by ordinary individuals in mass atrocities is at least partially explained by transformations in basic norms that structure social and political life. Second, the dissertation identifies a novel basis on which to apportion legal and moral accountability for mass atrocities between individuals and groups or collectivities i.e. on the basis of the specific contributions of social norms. Third, the dissertation provides new support for the disputed claim that distinct principles of justice apply to the various actors involved in liberalizing political transitions. (shrink)

Many assume that whenever government is entitled to make a law, it is entitled to enforce that law coercively. I argue that the justification of legal authority and the justification of governmental coercion come apart. Both in ideal theory and in actual human societies, governments are sometimes entitled to make laws that they are not entitled to enforce coercively.

Though political philosophers often presuppose that coercive enforcement is fundamental to law, many legal philosophers have doubted this. This article explores doubts of two types. Some legal philosophers argue that given an adequate account of coercion and coerciveness, the enforcement of law in actual legal systems will generally not count as coercive. Others accept that actual legal systems enforce many laws coercively, but they deny that law has a necessary connection with coercion. There can be individual laws that lack coercive (...) sanctions, and it is at least conceptually possible for there to be a legal system that lacks coercive enforcement altogether. This article then examines why most political philosophers and some legal philosophers have been reluctant to treat the conceptual possibility of non-coercive law as significant. (shrink)

This article addresses the question of whether judges can take the internal point of view towardtheir legal system's rule of recognition for purely prudential reasons. It takes a fresh look at an underappreciated conceptual argument of Joseph Raz's that answers: no. In a nutshell, Raz argues that purely prudential reasons are reasons of the wrong kind for judges to accept their legal system's rule of recognition. And should Raz's argument succeed, an important necessary connection between law and morality would be (...) established. (shrink)

Many of the most important social institutions—e.g., law and language—are thought to be normative in some sense. And philosophers have been puzzled by how this normativity can be explained in terms of the social, descriptive states of affairs that presumably constitute them. This paper attempts to solve this sort of puzzle by considering a simpler and less contentious normative social practice: table manners. Once we are clear on the exact sense in which a practice is normative, we see that some (...) practices can be normative in an interesting and non-trivial sense, but also explicable with merely descriptive resources. In addition to arguing that it is possible to explain normative practices with descriptive resources, this paper presents and defends just such an explanation—an account of the nature of table manners that appeals only to descriptive states of affairs. (shrink)

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)

What are rules? In this paper I develop a view of regulative rules which takes them to be a distinctive normative kind occupying a middle ground between orders and normative truths. The paradigmatic cases of regulative rules that I’m interested in are social rules like rules of etiquette and legal rules like traffic rules. On the view I’ll propose, a rule is a general normative content that is in force due to human activity: enactment by an authority or acceptance by (...) a community. Rules are unlike orders in being not necessarily communicative, not an expression’s of the giver’s will, not evaluable for sincerity, and in that they have propositional content. And they’re unlike normative truths in that they’re themselves not even truth-evaluable (though their contents are). This is because rules qua things that are in force are not like constatives which have a mind to world direction of fit, but more like performatives. Furthermore, they differ from normative truths in that their normativity is isolated from their background justification and is therefore not dependent on contributory notions like reasons coming together in a weighing explanation. As such, they occupy a middle ground between orders and normative truths, much like in H. L. A. Hart’s opinion law occupies a middle ground between “coercion” and “morality” (Hart 1961/1994). I also illustrate the virtues of this understanding of rules by showing how proper appreciation of how they differ from normative truths helps us defuse a common objection to Hart’s practice theory of rules. (shrink)

A menudo se piensa que los estándares genéricos de diligencia son una fuente importante de incertidumbre ya que están radicalmente indeterminados. A fin de favorecer la seguridad jurídica, el derecho de daños debería prescindir de ellos tanto como sea posible y optar por ofrecer estándares específicos, redactados en un lenguaje preciso. En este trabajo argumento que los estándares genéricos no están tan indeterminados como usualmente se asume y que, además, cumplen un papel normativo fundamental en la práctica de la responsabilidad (...) civil. (shrink)

Hume’s Law that one cannot derive an “ought” from an “is” has often been deemed to bear a significance that extends far beyond logic. Repeatedly, it has been invoked as posing a serious threat to views about normativity: naturalism in metaethics and positivism in jurisprudence. Yet in recent years, a puzzling asymmetry has emerged: while the view that Hume’s Law threatens naturalism has largely been abandoned (due mostly to Pigden’s work, see e.g. Pigden 1989), the thought that Hume’s Law is (...) a serious challenge to positivism has only grown in prominence. Our main aim is to establish that Hume’s Law is not a threat to positivism or naturalism. First, we connect extensive, but unfortunately siloed, discussions of this issue. Second, we show that Hume’s Law is not a serious threat to naturalism or positivism, for the gap between logic and such theses is very hard to bridge in a way that would make Hume’s Law able to bear this significance. Finally, we emphasize an implication of our discussion: it undermines one of the main “dialectical tributaries” in jurisprudence (Toh 2018). (shrink)

The article considers what arbitrary law-making is and what may count as arbitrary law-making in the field of migration policy. It contributes to the discussion of arbitrary law-making in relation to migration policy in two ways. First, it offers an analysis of arbitrariness, pointing out that rhetorical definitions abound – perhaps not surprisingly, given that migration is a highly-contested policy area – and argues for why transposing a conception developed in ethical theory to the law has high theoretical costs. An (...) alternative conception is described and found to be better equipped to deal with arbitrary law-making in migration policy. It is argued that if we want to understand how arbitrariness plays out in the field of migration law – which is necessary to find ways to hinder its spread by the adoption of specific law-making practices – we first need to distinguish arbitrariness from legitimate choices of legislators. Secondly, a typology of forms of arbitrariness is fleshed out in relation to contemporary migration policy. The policy area is here broadly construed to include not only naturalisation processes, but also migration, asylum and refugee policies and more generally border control. The examples are taken from a broad selection of countries. They have been chosen for illustrative purposes only. Keywords: arbitrariness, discretion, arbitrary power, forms of arbitrary power, borders, migration policy, citizenship policy. (shrink)

Scott Shapiro’s Legality argues the positivist Planning Theory of law meets the anti-positivist challenge posed by the argument from theoretical disagreements about law in Ronald Dworkin’s Law’s Empire. Legality equates theoretical disagreements with what Shapiro calls meta-interpretive disagreements, and then offers a legal theory of meta-interpretation that purportedly accounts for the existence of meta-interpretive disagreements by showing how it is rational or intelligible for legal actors to have such disagreements. This paper argues Legality misconstrues Law’s Empire. The true challenge of (...) ATD was to provide a theory of law that would vindicate the judgment that law is discovered in cases of theoretical disagreements, rather than made. Legality sees the challenge of Law’s Empire to be to show how it is rational or intelligible for legal actors to have theoretical disagreements, which is different from showing how there really is pre-existing law to be found in cases of theoretical disagreements. So the challenge Legality addresses is circumscribed. But Legality does not even succeed at addressing its own more circumscribed challenge, because, under the Planning Theory of meta-interpretation, legal actors are mistaken to think they are finding law in cases of theoretical disagreements. (shrink)

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. (...) In the second part I briefly analyze B. Leiter’s famous claim that legal realism is conceptually dependent on hard legal positivism (as a general theory of law). The critique of this claim opens the possibility for some alternative understanding of legal realism. (shrink)

Etiquette and other merely formal normative standards like legality, honor, and rules of games are taken less seriously than they should be. While these standards are not intrinsically reason-providing in the way morality is often taken to be, they also play an important role in our practical lives: we collectively treat them as important for assessing the behavior of ourselves and others and as licensing particular forms of sanction for violations. This chapter develops a novel account of the normativity of (...) formal standards where the role they play in our practical lives explains a distinctive kind of reason to obey them. We have this kind of reason to be polite because etiquette is important to us. We also have this kind of reason to be moral because morality is important to us. This parallel suggests that the importance we assign to morality is insufficient to justify it being substantive. (shrink)

An influential strand in recent action-theory employs constitutivist arguments in order to present accounts of individual agency and practical identity. I argue for an extension of this framework into the interpersonal realm, and suggest using it to reassess issues in jurisprudence. A legal system is an instantiation of the solution to the inescapable tasks of self-constituting action and identity-formation in the presence of other agents. Law's validity and normativity can be enlightened when the constitutivist approach considers the external prerequisites of (...) individuals' self-conceptions qua agents. More specifically, this argumentative strategy allows a reassessment of Fuller's “internal morality of law.” Whereas, pace Fuller, morally substantive conclusions cannot be derived from formal criteria of legality, there are unconditional normative requirements that constrain law. (shrink)

In this article I argue for rule-based, non-monotonic theories of common law judicial reasoning and improve upon one such theory offered by Horty and Bench-Capon. The improvements reveal some of the interconnections between formal theories of judicial reasoning and traditional issues within jurisprudence regarding the notions of the ratio decidendi and obiter dicta. Though I do not purport to resolve the long-standing jurisprudential issues here, it is beneficial for theorists both of legal philosophy and formalizing legal reasoning to see where (...) the two projects interact. (shrink)

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should (...) be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it isnecessarilyinvolved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project. (shrink)

In “How Facts Make Law” and other recent work, Mark Greenberg argues that legal positivists cannot develop a viable constitutive account of law that meets what he calls the “the rational-relation requirement.” He argues that this gives us reason to reject positivism in favor of antipositivism. In this paper, I argue that Greenberg is wrong: positivists can in fact develop a viable constitutive account of law that meets the rational-relation requirement. I make this argument in two stages. First, I offer (...) an account of the rational-relation requirement. Second, I put forward a viable positivist account of law that I argue meets this requirement. The account that I propose is a version of Scott Shapiro’s Planning Theory of Law. The version of Shapiro’s account that I propose combines (1) the account of concepts and conceptual analysis put forward by David Chalmers and Frank Jackson with (2) the account of the concept LEGAL INSTITUTION (and its conceptual connections to the concept LEGAL NORM) that we get from a certain reading of Shapiro’s Planning Theory. In addition to providing a compelling response to Greenberg’s argument in “How Facts Make Law,” I argue that the explanation for why my response to Greenberg works underscores one of the central problems facing legal antipositivism: namely, its lack of a convincing account of the nature of legal institutions. (shrink)