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)

If the bindingness of morality was to rest on something as ‘subjective’ as the non-cognitivist says it does, the grouse goes, and morality itself would come down crashing. Nothing less than an ‘objective’ source of normativity, it is supposed, could hold morality in orbit. Some of these worries automatically morph into worries about the projectivist model of normativity of law as well: one which understands the authority or normativity of law in terms of subjective attitudes taken towards the law. As (...) well as the stock worries about non-cognitivism, there are some additional ones that the projectivist model brings in its wake that it cannot account for the ‘uniform’ bindingness of law and that a subjective source of normativity of law based on mental states is unintelligible. This essay makes the case for acquitting the projectivist model of normativity of law from the above charges. But the route to that necessarily leads through first acquitt... (shrink)

Raz holds that necessarily all legal authorities, even de facto authorities, make a claim to legitimate authority. He does not say that legitimacy is a necessary property of law. This view, which I call the claim view, constitutes my focal point in this paper. Many commentators have criticized this view. I discuss and dismiss three critiques of the claim view: the verification critique (the claim view is not empirically confirmed), the legalistic critique (law claims legal authority, not moral authority), and (...) the semantic critique (legal obligations are semantically distinct from moral obligations). I submit that Raz equates the meaning of legal duties with that of moral duties and yet denies that legal statements entail moral propositions. In other words, I distinguish the semantic identity thesis from the semantic entailment thesis. Instead of a semantic interpretation of the claim view, I defend a presuppositional ascription of a general claim to moral authority to authoritative duty‐imposing and normatively committed uses of legal language by official spokesmen. I show that law’s claim to authority does not prove the truth of the sources thesis, because conceptual confusion or insincerity can affect the epistemic reliability of the propositions embodied in the claim, and because blatant immorality can altogether cancel law’s pragmatically presupposed claim to moral authority. I also argue that the claim view can only warrant two qualified versions of exclusive legal positivism, one of which is almost tautological, the other self‐contradictory. Finally, I suggest that exclusive legal positivism cannot be defended on conceptual grounds. (shrink)

ABSTRACTThe aim of this article is to see whether we can account for the normativity of law within the framework of legal positivism and whether the idea of a social convention could be of help in this endeavour. I argue, inter alia, that we should distinguish between the problem of accounting for the normativity of law, conceived as a necessary property of law, and the problem of accounting for the use of normative legal language on the part of legal actors; (...) that the debate about the normativity of law, which mainly concerns, is more or less identical to the debate between legal positivists and non-positivists; that one cannot account for the normativity of law, conceived along the lines of, within the framework of legal positivism, and that the question of the normativity of law considered within the framework of legal positivism is not an open question. (shrink)

Can Hart's non-cognitivism be reconciled with his rejection of the predictive and sanction-based explanations of law? This paper analyses Hart's notion of the internal point of view and focuses on the notion of acceptance of a rule along the lines of a non-cognitivist understanding of intentional actions. It is argued that a non-cognitivist analysis of acceptance of rules is incomplete and parasitic on a more basic or primary model of acceptance that does not involve mental states. This basic or primary (...) model of acceptance explains actions in terms of other actions and in terms of reasons for actions that are both presented as good-making characteristics and transparent to the agent. If Hart's internal point of view is able to work as the key argument to reject predictive and sanction-based explanations of law, it needs to make the outward approach of intentional action basic or primary rather than rely on an inward approach such as the one advanced by non-cognitivism. (shrink)

El propósito principal de este trabajo es presentar un argumento crítico aplicable a aquellas posiciones interpretativistas según las cuales, en la medida en que el objetivo de la teoría jurídica es identificar y explicar conceptos institucionales, es imprescindible asumir la necesidad de un punto de vista interno. Una parte substancial del artículo está dedicada, por una parte, a mostrar la ambigüedad de esta tesis y, por otra, a justificar la distinción entre dos sentidos, uno epistemológico y otro pragmático, en los (...) que las expresiones “punto de vista interno” y “punto de vista externo” pueden ser entendidas. Detectar esta ambigüedad, en primer lugar, permite mostrar diferentes formas de entender los conceptos institucionales. En segundo lugar, hace posible captar un peculiar tipo de indeterminación que afecta a todo discurso referido a las instituciones sociales en general y a las instituciones jurídicas en particular. La tesis central sostenida en este trabajo es que, para identificar y explicar un concepto institucional, la teoría jurídica debe necesariamente adoptar un punto de vista interno en sentido epistemológico, pero no en sentido pragmático. En la parte final del ensayo se sugiere que es posible generalizar la crítica formulada a las posiciones interpretativistas que sostienen indistintamente la necesidad de un punto de vista interno y aplicarla también a aquellas posiciones según las cuales, para identificar y explicar un concepto institucional, debemos necesariamente adoptar un punto de vista externo. La conclusión es que no existe un único método de estudio en la teoría jurídica y, sobre todo, que dicho método depende del modo en el que se configure el objeto de estudio. En este caso, los conceptos institucionales o el contenido de las instituciones jurídicas. (shrink)

This paper is divided into two parts. In the first one I distinguish between weak and strong Anti-Archimedeanisms, the latter being the view that metaethics, just as any other discipline attempting to work out a second-order conceptual, metaphysical non-committed discourse about the first-order discourse composing normative practices, is conceptually impossible or otherwise incoherent. I deal in particular with Ronald Dworkin’s famous exposition of the view. I argue that strong Anti-Archimedeanism constitutes an untenable philosophical stance, therefore making logical space for the (...) practice of a discipline such as metaethics—conceived as ethically neutral. This makes space, concurrently, for neutral conceptual jurisprudence. In the second part of the article, I attempt to show two things. On the one hand, that Dworkin’s widely discussed ‘challenge of disagreements’ to legal positivism is founded upon strong Anti-Archimedeanism. On the other hand, that having rejected strong Anti-Archimedeanism we should consequently reject the challenge as a serious challenge to positivism. This move, of course, does not thereby imply that accounting for legal disagreements is not an important jurisprudential task. But it marks—contra Dworkin—that there is no principled or a priori impossibility of doing so within a positivist framework. (shrink)

The recent “Windrush” scandal in the United Kingdom involved the application of law by Home Office officials in a manner that demonstrated gross lack of concern and humanity for its impact on many individuals. In an endeavour to reach some understanding of how ordinary individuals could have inflicted such hardships on others, this article considers the possible effect that acting within a legal environment might have on the actors’ response to moral norms. The inquiry leads to reconsideration of established theories (...) on the relationship between law and morality, concluding that the main theories ignore important aspects of that relationship. (shrink)

The concept of law is not a theorist's invention but one that people use every day. Thus one measure of the adequacy of a theory of law is its degree of fidelity to the concept as it is understood by those who use it. That means as far as possible. There are important truisms about the law that have an evaluative cast. The theorist has either to say what would make those evaluative truisms true or to defend her choice to (...) dismiss them as false of law or not of the essence of law. Thus the legal theorist must give an account of the truth grounds of the more central evaluative truisms about law. This account is a theory of legitimacy. It will contain framing judgments that state logical relations between descriptive judgments and directly evaluative judgments. Framing judgments are not directly evaluative, nor do they entail directly evaluative judgments, but they are nonetheless moral judgments. Therefore, an adequate theory of law must make (some) moral judgments. This means that an adequate theory of law has to take a stand on certain (but not all) contested issues in political philosophy. Legal theory is thus a branch of political philosophy. Moreover, one cannot be a moral-aim functionalist about legal institutions without compromising one's positivism about legal norms. (shrink)

En este texto comparo las concepciones de Eugenio Bulygin y Cristina Redondo acerca de aquellos enunciados que dan cuenta de que en una sociedad se aceptan ciertas reglas como pautas de conducta. Me concentro en la pregunta acerca de qué es lo que posibilita al observador “identificar”, “reconocer” normas jurídicas válidas en cuanto tales. Inspirada en el enfoque wittgensteiniano acerca del seguimiento de reglas —retomado a su vez por la crítica de Brandom al “regularismo”—, planteo una respuesta que discrepa de (...) la de Bulygin y coincide con la de Redondo en un punto en el que ambos difieren; mas señalo una sutil —aunque crucial— diferencia con esta última. (shrink)

In a recent article entitled, “Is General Jurisprudence Interesting?”, David Enoch answers his own question resoundingly in the negative. This article critically examines the character of Enoch’s claim, the presuppositions it rests on, and the way in which he seeks to establish it. Having argued that many of Enoch’s views in this regard hinge on a narrow and idiosyncratic understanding of the questions that general jurisprudence addresses, and of the relations between those questions and many other inquiries concerning the character (...) of law, the article concludes by offering its author’s own vision of what makes general jurisprudence engaging, intriguing, and... well... interesting. (shrink)

There is at least one immediate sense in which legal discourse is perspectival: it qualifies acts and facts in the world on the basis of rules. Legal concepts are for the most part constituted by rules, both in the sense that rules define these concepts’ semantic content and that, in order to engage with legal practice, we must act according to those rules, not necessarily complying with them but at least having them in mind. This is the distinctive perspective of (...) law: however, it would be misleading to think that this is the only perspective we can have in legal discourse. That of rule-constituted legal concepts is the fundamental perspective -- the inevitable presupposition of most legal assertions -- but other perspectives are possible on top of this fundamental background: perspectives on law, stemming from the basic perspective of law. -/- In this paper, I will try to argue that some different perspectives regarding law can be accounted for by analyzing different kinds of concepts that emerge in connection with legal institutions. My argument will consist of three steps as follows. First, I will explain how legal concepts are constituted by rules, referring in this regard to John Searle’s analysis of institutional concepts as it emerges in his Making the Social World, of 2010, and amending this analysis according to some criticisms that in 1986 Neil MacCormick had raised against Searle with specific reference to the legal domain. -/- Second, I will show that there are some kinds of concepts relevant for an institution which are not captured by Searle’s analysis in terms of constitutive rules, even if this is amended according to MacCormick’s criticisms. This I will do by considering the game of chess as a simple system of rule-constituted concepts (concepts such as 'checkmate,' 'bishop,' 'king'). I will consider four examples of perfectly legitimate assertions regarding a match of chess -- these being (1) ‘I won’; (2) 'you made a good attack'; (3) 'you are cheating'; (4) 'you made good use of the first-move advantage,' and I will show that, while the first three assertions can be analyzed in terms of concepts (those of 'victory,' 'attack,' and 'cheating') which are not constituted by the rules of chess but are rather common to several different competitive games, being typical of the broader practice of competitive game-playing of which chess is an instance, the fourth assertion includes a concept (that of 'first-move advantage') which is peculiar to chess, just like a rule-constituted element, but is not constituted by the rules of chess. This analysis will lead to a new categorization of institutional concepts. Apart from rule-constituted institutional concepts, which are the only ones recognized by Searle, in order to account for cases (1), (2), and (3) I will distinguish between three kinds of meta-institutional concepts, namely, goal-oriented, mode-oriented, and value-oriented meta-institutional concepts, and then I will introduce the category of para-institutional concepts to account for case (4). -/- Finally -- and this is the third step of my argument -- I will explain how these different kinds of institutional concepts appear when we adopt different perspectives on the institutional frameworks we deal with. This will lead us to a categorization of possible perspectives regarding law that corresponds to the previous one regarding concepts. There is first a structural perspective regarding the instantiation of institutional elements which clearly involves rule-constituted institutional concepts -- as when we say 'I am making a will.' There is then a teleological perspective regarding the goal of our institutional acts which calls into question goal-oriented meta-institutional concepts -- as when we say 'I wrote that will in order for you to have a distinctive right to my property.' Then, we can adopt a strategical perspective regarding some peculiar ways in which institutional acts can be performed, and this has often to do with mode-oriented meta-institutional concepts -- as when we say 'the Labour Party is making parliamentary obstructionism so that the Government will fall before the enactment of the labour reform,' or 'workers start today a work-to-rule action.' Clearly, we can also adopt an evaluative perspective over institutional facts or acts, and here typically value oriented meta-institutional concepts emerge -- as when we say 'that rule is clearly unjust' or 'that contract is unfair.' Finally, we can limit ourselves to a descriptive perspective on phenomena which are peculiar to a given institutional setting, and here para-institutional concepts are often useful -- as when we say 'the Italian electoral system before 1990 led to a sort of reform paralysis' or 'a strict use of the criterion requiring proof beyond any reasonable doubt can be expected to entail a low conviction rate.'. (shrink)