In this essay, I focus on what appear to be Shapiro’s views about the normativity of law, as well as with his surprising claim that law necessarily has a moral aim. I argue that even if Shapiro offers a more compelling reply to the problem of the normativity of law than Hart offers in The Concept of Law, the moves that he makes appear to be equally available to a defender of Hart’s theory, and so in this respect, the planning (...) theory has no particular advantage over the practice theory. As for the Moral Aim Thesis, it appears to be in tension with Shapiro’s positivism. If he is right that law has a moral aim and law claims moral legitimacy, then he should embrace a richer account of the nature and normativity of law than the one that he has offered. (shrink)

Subjectivism about welfare is the view that something is basically good for you if and only if, and to the extent that, you have the right kind of favorable attitude toward it under the right conditions. I make a presumptive case for the falsity of subjectivism by arguing against nearly every extant version of the view. My arguments share a common theme: theories of welfare should be tested for what they imply about newborn infants. Even if a theory is intended (...) to apply only to adults, the fact that it is false of newborns may give us sufficient reason to reject it. (shrink)

David Enoch develops, argues for, and defends a strongly realist and objectivist view of ethics and normativity more broadly. This view--according to which there are perfectly objective, universal, moral and other normative truths that are not in any way reducible to other, natural truths--is familiar, but this book is the first in-detail development of the positive motivations for the view into reasonably precise arguments. And when the book turns to defend Robust Realism against traditional objections, it mobilizes the original positive (...) arguments for the view to help with fending off the objections. (shrink)

Natural Law and Natural Rights is widely recognised as a seminal contribution to the philosophy of law, and an essential reference point for all students of the subject. This new edition includes a substantial postscript by the author responding to thirty years of comment, criticism, and further work in the field.

This essay examines two dominant traditions in legal philosophy, the natural law theory and legal positivism, in terms of how they account for the normativity of law. I argue that, although these two traditions generally take the question of the normativity of law seriously and try to account for it, they are not successful in doing so. This failure in the prevailing literature on the philosophy of law, I suggest, nevertheless has an implicit reconstructive impact: the insights into the failure (...) of natural law theory and legal positivism imply an alternative philosophical framework that may provide a positive answer to the question of the normativity of law. (shrink)

The is-ought gap is Hume’s claim that we can’t get an ‘ought’ from just ‘is’s. Prior (“The Autonomy of Ethics,” 1960) showed that its most straightforward formulation, a staple of introductory philosophy classes, fails. Many authors attempt to resurrect the claim by restricting its domain syntactically or by reformulating it in terms of models of deontic logic. Those attempts prove to be complex, incomplete, or incorrect. I provide a simple reformulation of the is-ought gap that closely fits Hume’s description of (...) it. My formulation of the gap avoids the proposed counterexamples from Prior and offers a natural explanation of why they seem compelling. Moreover, I show that my formulation of the gap is guaranteed by standard theories of the semantics of normative terms, and that provides a more general reason to accept it. (shrink)

This paper is a survey of the supervenience challenge to non-naturalist moral realism. I formulate a version of the challenge, consider the most promising non-naturalist replies to it, and suggest that no fully effective reply has yet been given.

In this reprint of Law's Empire,Ronald Dworkin reflects on the nature of the law, its given authority, its application in democracy, the prominent role of interpretation in judgement, and the relations of lawmakers and lawgivers to the community on whose behalf they pronounce. For that community, Law's Empire provides a judicious and coherent introduction to the place of law in our lives.Previously Published by Harper Collins. Reprinted (1998) by Hart Publishing.

Grounding is often glossed as metaphysical causation, yet no current theory of grounding looks remotely like a plausible treatment of causation. I propose to take the analogy between grounding and causation seriously, by providing an account of grounding in the image of causation, on the template of structural equation models for causation.

Can there be grounding without necessitation? Can a fact obtain wholly in virtue of metaphysically more fundamental facts, even though there are possible worlds at which the latter facts obtain but not the former? It is an orthodoxy in recent literature about the nature of grounding, and in first-order philosophical disputes about what grounds what, that the answer is no. I will argue that the correct answer is yes. I present two novel arguments against grounding necessitarianism, and show that grounding (...) contingentism is fully compatible with the various explanatory roles that grounding is widely thought to play. (shrink)

A critical discussion of Kelsen's philosophy of law.

In Philosophy of Law, Andrei Marmor provides a comprehensive analysis of contemporary debates about the fundamental nature of law—an issue that has been at the heart of legal philosophy for centuries. What the law is seems to be a matter of fact, but this fact has normative significance: it tells people what they ought to do. Marmor argues that the myriad questions raised by the factual and normative features of law actually depend on the possibility of reduction—whether the legal domain (...) can be explained in terms of something else, more foundational in nature. In addition to exploring the major issues in contemporary legal thought, Philosophy of Law provides a critical analysis of the people and ideas that have dominated the field in past centuries. It will be essential reading for anyone curious about the nature of law. (shrink)

Hume seems to contend that you can’t get an ought from an is. Searle professed to prove otherwise, deriving a conclusion about obligations from a premise about promises. Since (as Schurz and I have shown) you can’t derive a substantive ought from an is by logic alone, Searle is best construed as claiming that there are analytic bridge principles linking premises about promises to conclusions about obligations. But we can no more derive a moral obligation to pay up from the (...) fact that a promise has been made than we can derive a duty to fight a duel from the fact that a challenge has been issued – just conclusions about what we ought to do according to the rules of the relevant games. Hume suggests bridge principles that would take us from the rules of the games to conclusions about duties, but these principles are false. My argument features an obstreperous earl, an anarchist philosopher and a dueling Prime Minister. (shrink)

Survey article on Naturalism dealing with Hume's NOFI (including Prior's objections), Moore's Naturalistic Fallacy and the Barren Tautology Argument. Naturalism, as I understand it, is a form of moral realism which rejects fundamental moral facts or properties. Thus it is opposed to both non-cognitivism, and and the error theory but also to non-naturalism. General conclusion: as of 1991: naturalism as a program has not been refuted though none of the extant versions look particularly promising.

The elucidations and regimentations of grounding offered in the literature standardly take it to be a necessary connection. In particular, authors often assert, or at least assume, that if some facts ground another fact, then the obtaining of the former necessitates the latter; and moreover, that grounding is an internal relation, in the sense of being necessitated by the existence of the relata. In this article, I challenge the necessitarian orthodoxy about grounding by offering two prima facie counterexamples. First, some (...) physical facts may ground a certain phenomenal fact without necessitating it; and they may co-exist with the latter without grounding it. Second, some instantiations of categorical properties may ground the instantiation of a dispositional one without necessitating it; and they may co-exist without grounding it. After arguing that these may be genuine counterexamples, I ask whether there are modal constraints on grounding that are not threatened by them. I propose two: that grounding supervenes on what facts there are, and that every grounded fact supervenes on what grounds there are. Finally, I attempt to provide a rigorous formulation of the latter supervenience claim and discuss some technical questions that arise if we allow descending grounding chains of transfinite length. (shrink)

Argument that full grounds modally entail what they ground.

Virtually everyone takes the moral supervenience thesis to be a basic conceptual truth about morality. As a result, if a metaethical theory has difficulties respecting or adequately explaining the supervenience relationship it is deemed to be in big trouble. However, the moral supervenience thesis is a not a conceptual truth (though it may be true) and as such it is not a problem if a metaethical theory cannot respect or explain it.

Some of the most eminent and enduring philosophical questions concern matters of priority: what is prior to what? What 'grounds' what? Is, for instance, matter prior to mind? Recently, a vivid debate has arisen about how such questions have to be understood. Can the relevant notion or notions of priority be spelled out? And how do they relate to other metaphysical notions, such as modality, truth-making or essence? This volume of new essays, by leading figures in contemporary metaphysics, is the (...) first to address and investigate the metaphysical idea that certain facts are grounded in other facts. An introduction introduces and surveys the debate, examining its history as well as its central systematic aspects. The volume will be of wide interest to students and scholars of metaphysics. (shrink)

What is law (and why should we care)? -- Crazy little thing called "law" -- Austin's sanction theory -- Hart and the rule of recognition -- How to do things with plans -- The making of a legal system -- What law is -- Legal reasoning and judicial decision making -- Hard cases -- Theoretical disagreements -- Dworkin and distrust -- The economy of trust -- The interpretation of plans -- The value of legality.

This chapter contains sections titled: Jurisprudence: Method and Subject Matter Legality and Authority Positivism: Austin vs. Hart The Authority of Law Judicial Discretion Incorporationism and Legality Raz' s Theory of Authority Incorporationism and Authority Conclusion Postscript References.

It ‘seems altogether inconceivable', says Hume, that this ‘new relation' ought ‘can be a deduction' from others ‘which are entirely different from it' The idea that you can't derive an Ought from an Is, moral conclusions from non-moral premises, has proved enormously influential. But what did Hume mean by this famous dictum? Was he correct? How does it fit in with the rest of his philosophy? And what does this suggest about the nature of moral judgements? This collection, the first (...) on this topic for forty years, assembles a distinguished cast of international scholars to discuss these questions. The book combines, historical scholarship, meta-ethics and cutting-edge research in philosophical logic. It includes three distinct attempts to reformulate and prove No-Ought-From-Is in the face of Prior's famous counterexamples. -/- Contributors: A.N. Prior, Gerhard Schurz, Charles Pigden, J.M.Shorter, Annette.C.Baier, Wade Robison, Adrian Heathcote, Alan Musgrave, Norva Y.S. Lo, Gillian Russell, Hakan Salwén, Greg Restall, Peter Vranas, Edwin Mares, Stephen Maitzen. (shrink)

Recently, some philosophers have suggested that a form of robust realism about ethics, or normativity more generally, does not face a significant explanatory burden in metaphysics. I call this view metaphysically quietist normative realism . This paper argues that while this view can appear to constitute an attractive alternative to more traditional forms of normative realism, it cannot deliver on this promise. I examine Scanlon’s attempt to defend such a quietist realism, and argue that rather than silencing metaphysical questions about (...) normative reasons, his defense at best succeeds only in shifting the focus of metaphysical enquiry. I then set aside the details of Scanlon’s view, and argue on general grounds that that the quietist realist cannot finesse a crucial metanormative task: to explain the contrast between the correct normative system and alternative putatively normative standards. (shrink)

Practical Reason and Norms focuses on three problems: In what way are rules normative, and how do they differ from ordinary reasons? What makes normative systems systematic? What distinguishes legal systems, and in what consists their normativity? All three questions are answered by taking reasons as the basic normative concept, and showing the distinctive role reasons have in every case, thus paving the way to a unified account of normativity. Rules are a structure of reasons to perform the required act (...) and an exclusionary reason not to follow some competing reasons. Exclusionary reasons are explained, and used to unlock the secrets of orders, promises, and decisions as well as rules. Games are used to exemplify normative systems. Inevitably, the analysis extends to some aspects of normative discourse, which is truth-apt, but with a diminished assertoric force. (shrink)

Laws form counterfactually stable sets -- Natural necessity -- Three payoffs of my account -- A world of subjunctives.

I LAW AND NATURE i. The "Pure" Theory The Pure Theory of Law is a theory of positive law. It is a theory of positive law in general, not of a specific legal ...

In this much-anticipated book, Jonathan Dancy offers the only available full-scale treatment of particularism in ethics, a view with which he has been associated for twenty years. Dancy now presents particularism as the view that the possibility of moral thought and judgement does not in any way depend on an adequate supply of principles. He grounds this claim on a form of reasons-holism, holding that what is a reason in one case need not be any reason in another, and maintaining (...) that moral reasons are no different in this respect from others. Ethics Without Principles offers detailed treatment and criticism of opposing positions of all sorts, with useful summaries. It also contains three chapters on the nature of what Dancy calls 'contributory' reasons, which, though the topic of much interest at the moment, are not often discussed in anything like the detail given here. And it offers a distinctive form of value-holism to go with the holism of reasons. As Dancy's definitive statement on particularism, the book will be required reading for all those working on moral philosophy and ethical theory. (shrink)

I offer a new argument against the legal positivist view that non-normative social facts can themselves determine the content of the law. I argue that the nature of the determination relation in law is rational determination: the contribution of law-determining practices to the content of the law must be based on reasons. That is why it must be possible in principle to explain what makes the law have the content that it does. It follows, I argue, that non-normative facts about (...) statutes, judicial decisions, and other practices cannot themselves determine the content of the law. A full account must appeal to considerations independent of the practices that determine the relevance of the practices to the content of the law. Normative facts are the best candidates. (shrink)

My first paper on the Is/Ought issue. The young Arthur Prior endorsed the Autonomy of Ethics, in the form of Hume’s No-Ought-From-Is (NOFI) but the later Prior developed a seemingly devastating counter-argument. I defend Prior's earlier logical thesis (albeit in a modified form) against his later self. However it is important to distinguish between three versions of the Autonomy of Ethics: Ontological, Semantic and Ontological. Ontological Autonomy is the thesis that moral judgments, to be true, must answer to a realm (...) of sui generis non-natural PROPERTIES. Semantic autonomy insists on a realm of sui generis non-natural PREDICATES which do not mean the same as any natural counterparts. Logical Autonomy maintains that moral conclusions cannot be derived from non-moral premises.-moral premises with the aid of logic alone. Logical Autonomy does not entail Semantic Autonomy and Semantic Autonomy does not entail Ontological Autonomy. But, given some plausible assumptions Ontological Autonomy entails Semantic Autonomy and given the conservativeness of logic – the idea that in a valid argument you don’t get out what you haven’t put in – Semantic Autonomy entails Logical Autonomy. So if Logical Autonomy is false – as Prior appears to prove – then Semantic and Ontological Autonomy would appear to be false too! I develop a version of Logical Autonomy (or NOFI) and vindicate it against Prior’s counterexamples, which are also counterexamples to the conservativeness of logic as traditionally conceived. The key concept here is an idea derived in part from Quine - that of INFERENCE-RELATIVE VACUITY. I prove that you cannot derive conclusions in which the moral terms appear non-vacuously from premises from which they are absent. But this is because you cannot derive conclusions in which ANY (non-logical) terms appear non-vacuously from premises from which they are absent Thus NOFI or Logical Autonomy comes out as an instance of the conservativeness of logic. This means that the reverse entailment that I have suggested turns out to be a mistake. The falsehood of Logical Autonomy would not entail either the falsehood Semantic Autonomy or the falsehood of Ontological Autonomy, since Semantic Autonomy only entails Logical Autonomy with the aid of the conservativeness of logic of which Logical Autonomy is simply an instance. Thus NOFI or Logical Autonomy is vindicated, but it turns out to be a less world-shattering thesis than some have supposed. It provides no support for either non-cognitivism or non-naturalism. (shrink)

The explanatory gap . Consciousness is a mystery. No one has ever given an account, even a highly speculative, hypothetical, and incomplete account of how a physical thing could have phenomenal states. Suppose that consciousness is identical to a property of the brain, say activity in the pyramidal cells of layer 5 of the cortex involving reverberatory circuits from cortical layer 6 to the thalamus and back to layers 4 and 6,as Crick and Koch have suggested for visual consciousness. .) (...) Still, that identity itself calls out for explanation! Proponents of an explanatory gap disagree about whether the gap is permanent. Some say that we are like the scientifically naive person who is told that matter = energy, but does not have the concepts required to make sense of the idea. If we can acquire these concepts, the gap is closable. Others say the gap is uncloseable because of our cognitive limitations. Still others say that the gap is a consequence of the fundamental nature of consciousness. (shrink)

Tye's book develops a persuasive and, in many respects, original argument for the view that the qualitative side of our mental life is representational in..

Lycan not only uses the numerous arguments against materialism, and functionalist theories of mind in particular, to gain a more detailed positive view of the ..

“X-Firsters” hold that there is some normative feature that is fundamental to all others (and, often, that there’s some normative feature that is the “mark of the normative”: all other normative properties have it, and are normative in virtue of having it). This view is taken as a starting point in the debate about which X is “on first.” Little has been said about whether or why we should be X-Firsters, or what we should think about normativity if we aren’t (...) X-Firsters. Hence the chapter’s two main goals. First, to provide a simple argument that one shouldn’t be an X-Firster about the normative domain, which starts with the observation that analogous views have dubious merits in analogous domains. Second, to offer an alternative view—taking normativity to be a determinable explained in terms of its determinates—that offers an interesting way to think about the structure and unity of normativity. (shrink)

According to many, that the normative supervenes on the non-normative is a truism of normative discourse. This chapter argues that those committed to more specific moral, aesthetic, and epistemic supervenience theses should also hold : As a matter of conceptual necessity, whenever something has a normative property, it has a base property or collection of base properties that metaphysically necessitates the normative one. The main aim in this chapter is to show that none of the available arguments establish, or indeed (...) the relevant epistemic, aesthetic, and moral supervenience theses. is not a conceptual truth. This has considerable dialectical importance. One interesting upshot is that it affords non-reductivists and non-naturalists a novel way of resisting certain prominent supervenience-based objections to their views, including objections that formulate supervenience as a purely metaphysical thesis. (shrink)

This chapter argues that the best way for a non-naturalist to explain why the normative supervenes on the natural is to claim that, while there are some sui generis normative properties whose essences cannot be fully specified in non-normative terms and do not specify any non-normative sufficient conditions for their instantiation, there are certain hybrid normative properties whose essences specify both naturalistic sufficient conditions for their own instantiation and sufficient conditions for the instantiation of certain sui generis normative properties. This (...) is the only metaphysical explanation for supervenience on offer, the chapter argues, that can both clearly maintain the pre-theoretical commitments of non-naturalism, and provide a metaphysical explanation not just for supervenience, but for all metaphysical necessities involving natural and normative properties. (shrink)

Discussion of the relevance of grounding to substantiveness, theory-choice, and “location problems” in metaphysics.

This paper is an attempt to apply the truthmaker approach, recently developed by a number of authors, to the problem of providing an adequate formulation of the is–ought gap. I begin by setting up the problem and criticizing some other accounts of how the problem should be stated; I then introduce the basic apparatus of truth-making and show how it may be extended to include both descriptive and normative truth-makers; I next consider how the gap principle should be formulated, attempting (...) to deal as systematically as possible with the ‘harmless’ counter-examples; I also consider the relationship between the gap principle and various other doctrines concerning the separation between the normative and descriptive realms; and I conclude this part of the paper with some general remarks in favor of adopting the truth-maker approach over some of the alternative approaches. The paper concludes with a formal appendix, which gives precise expression to some of claims made in the previous informal part of the paper. (shrink)

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)

It is regrettably common for theorists to attempt to characterize the Humean dictum that one can’t get an ‘ought’ from an ‘is’ just in broadly logical terms. We here address an important new class of such approaches which appeal to model-theoretic machinery. Our complaint about these recent attempts is that they interfere with substantive debates about the nature of the ethical. This problem, developed in detail for Daniel Singer’s and Gillian Russell and Greg Restall’s accounts of Hume’s dictum, is of (...) a general type arising for the use of model-theoretic structures in cashing out substantive philosophical claims: the question of whether an abstract model-theoretic structure successfully interprets something often involves taking a stand on non-trivial issues surrounding the thing. In the particular case of Hume’s dictum, given reasonable conceptual or metaphysical claims about the ethical, Singer’s and Russell and Restall’s accounts treat obviously ethical claims as descriptive and vice versa. Consequently, their model-theoretic characterizations of Hume’s dictum are not metaethically neutral. This encourages skepticism about whether model-theoretic machinery suffices to provide an illuminating distinction between the ethical and the descriptive. (shrink)