In 'The Standard Picture and its Discontents', Mark Greenberg remarks that the typical way that legal theorists think about legal obligations does not sit well with the way the common law works. I argue that Alexander's and Sherwin’s Rule Model of precedent can deal with all the problems that Greenberg accuses the Standard Picture of having. Nonetheless, I further argue that combining the Standard Picture and the Rule Model ultimately leads to another problem: the inability of the Standard Picture – (...) Rule Model to separate rule from dicta. (shrink)

ABSTRACTThe aim of this paper is to show that general jurisprudence is in no need of reinvention. The sentiment shared by many contemporary legal philosophers that theories about the nature of law...

The function of law and of constitutional law is to make determinate what we ought to do. And in constitutional law, that is true of both structural provisions and rights provisions. It is not the function of constitutions to establish our real moral rights. We possess those independently of the constitution, which cannot affect them. And all organs of government are bound morally if not legally by those rights. I have taken no position on the relative competence of legislatures and (...) courts to ascertain the content of real moral rights, and it is possible that the judiciary is well-equipped to be our wise Platonic guardians. However, if the game is interpretation, all that can be interpreted are authored rules, and what those rules mean can only be what their authors meant by them. Anything else is reauthoring—that is, creating new rules. There is no “living tree” constitutional interpretation. The only “living trees” are the judges. So you’d better hope that they are well cultivated. And you may conclude that a bit of pruning is in order. (shrink)

In this paper, I argue that there is a picture of how law works that most legal theorists are implicitly committed to and take to be common ground. This Standard Picture (SP, for short) is generally unacknowledged and unargued for. SP leads to a characteristic set of concerns and problems and yields a distinctive way of thinking about how law is supposed to operate. I suggest that the issue of whether SP is correct is a fundamental one for the philosophy (...) of law, more basic, for example, than the issue that divides legal positivists and anti-positivists, at least as the latter issue is ordinarily understood. The goals of the paper are fourfold: 1) to identify and articulate in some detail the Standard Picture; 2) to show that SP is widely held and has important consequences for other debates in the philosophy of law; 3) to show that SP leads to a serious theoretical problem; 4) to sketch an alternative picture that promises to avoid this problem. I emphasize the modesty of these goals in one respect. I make no claim to refute SP or to fully develop and defend an alternative picture. (shrink)

A spectre is haunting legal positivists – and perhaps jurisprudes more generally – the spectre of the normativity of law. Whatever else law is, it is sometimes said, it is normative, and so whatever else a philosophical account of law accounts for, it should account for the normativity of law[1]. But law is at least partially a social matter, its content at least partially determined by social practices. And how can something social and descriptive in this down-to-earth kind of way (...) be normative?[2] This is presumably a problem for any theory of law, but it is especially acute for legal positivism, according to which (roughly speaking) all there is to facts about legality are such descriptive social facts. If this is so, the thought goes, the task of accommodating the law’s normativity immediately becomes both more daunting, and more urgent[3]. Unfortunately, though, it is entirely unclear what the problem of the normativity of law is supposed to be. Indeed, I suspect that there is no one problem here, as different people seem to have in mind different problems when they use this unhelpful phrase[4]. At least one family of issues people seem to have in mind when they talk about the normativity of law is a host of issues pertaining to the reason-giving force of the law. The law, it is sometimes said, gives reasons for action, and a theory of law should accommodate this obvious fact. But even when we focus just on questions regarding the reason-giving force of the law (and from now on I will restrict myself to just those, leaving other things people may have in mind when they talk about the normativity of law for another occasion), it is still not clear what the problem is. Indeed, my main purpose in this paper is to make some progress in understanding the relevant question here. And my conclusion is going to be somewhat skeptical: Once we are clear on what reason-giving in general consists in, and on what reason-giving powers the law actually has, there is not much by way of a problem here that needs to be solved, not a deep and interesting phenomenon here that theories of law need to accommodate, and that therefore places adequacy constraints on plausible theories of the nature of law.. (shrink)