Reprinted 1999 by The Lawbook Exchange, Ltd. LCCN 98-32334. ISBN 1-886363-74-9. Cloth. $95. * Reprint of the first edition.

Jules Coleman, one of the world's leading philosophers of law, here presents his most mature work so far on substantive issues in legal theory and the appropriate methodology for legal theorizing. In doing so, he takes on the views of highly respected contemporaries such as Brian Leiter, Stephen Perry, and Ronald Dworkin.

First published in 1978, this book rapidly established itself as a classicof modern Marxism.

I argued in Karl Marx's Theory of History that the central claims of historical materialism are functional explanations, and I said that functional explanations are consequence explanations, ones, that is, in which something is explained by its propensity to have a certain kind of effect. I also claimed that the theory of chance variation and natural selection sustains functional explanations, and hence consequence explanations, of organismic equipment. In Section I I defend the thesis that historical materialism offers functional or consequence (...) explanations, and I reject Jon Elster's contention that game theory can, and should, assume a central role in the Marxist theory of society. In Section II I contrast functional and consequence explanation, thereby revising the position of Karl Marx's Theory of History, and I question whether evolutionary biology supports functional explanations. Section III is a critique of Elster's views on functional explanation, and Sections IV and V defend consequence explanation against metaphysical and epistemological doubts. A concluding section summarizes my present understanding of the status of historical materialist explanations. (shrink)

Legal philosophers share the same phenomenology of legal practice. Yet, they differ in its explanation. For normativists, descriptivists got it wrong and vice versa. This controversy between normativists and descriptivists will be called “the methodological problem” in legal theory. Normativists such as Dworkin and Perry argue that descriptivists need evaluation. By contrast, descriptivists such as Coleman argue that normativists need the methods of descriptivism such as conceptual analysis and therefore might be committed to descriptivism. The paper shows that the responses (...) of Perry and Coleman to the methodological problem are not free from difficulties. The article also advances a reinterpretation of normativism in terms of two tenets: 1. the semantic sting argument, and 2. the ametaphysical thesis argument. If the latter argument is sound, normativism is unavoidable, because if there cannot be an external point of view or Archimedean perspective, then we can only resort to our moral convictions or substantive claims. The first tenet has been criticized in previous work and the paper focuses on a criticism of the second tenet. (shrink)

An examination of difficulties in three standard accounts of functions leads to the suggestion that sentences of the form "the function of x is to do y" are used to make a variety of different claims, all of which involve a means-end relationship and the idea of design, or use, or benefit. The analysis proposed enables us to see what is right and also wrong with accounts that analyze the meaning of function statements in terms of good consequences, goals, and (...) etiological explanation. It also enables us to show that function sentences can be used in providing various types of explanations, including, in certain cases, noncausal explanations of the presence of the item with the function. (shrink)

To understand H.L.A. Hart's general theory of law, it is helpful to distinguish betweensubstantiveandmethodologicallegal positivism. Substantive legal positivism is the view that there is no necessary connection between morality and the content of law. Methodological legal positivism is the view that legal theory can and should offer a normatively neutral description of a particular social phenomenon, namely law. Methodological positivism holds, we might say, not that there is no necessary connection between morality and law, but rather that there is no (...) connection, necessary or otherwise, between morality and legal theory. The respective claims of substantive and methodological positivism are, at least on the surface, logically independent. Hobbes and Bentham employed normative methodologies to defend versions of substantive positivism, and in modern times Michael Moore has developed what can be regarded as a variant of methodological positivism to defend a theory of natural law. (shrink)

The Concept of Law is the most important and original work of legal philosophy written this century. First published in 1961, it is considered the masterpiece of H.L.A. Hart's enormous contribution to the study of jurisprudence and legal philosophy. Its elegant language and balanced arguments have sparked wide debate and unprecedented growth in the quantity and quality of scholarship in this area--much of it devoted to attacking or defending Hart's theories. Principal among Hart's critics is renowned lawyer and political philosopher (...) Ronald Dworkin who in the 1970s and 80s mounted a series of challenges to Hart's Concept of Law. It seemed that Hart let these challenges go unanswered until, after his death in 1992, his answer to Dworkin's criticism was discovered among his papers. In this valuable and long-awaited new edition Hart presents an Epilogue in which he answers Dworkin and some of his other most influential critics including Fuller and Finnis. Written with the same clarity and candor for which the first edition is famous, the Epilogue offers a sharper interpretation of Hart's own views, rebuffs the arguments of critics like Dworkin, and powerfully asserts that they have based their criticisms on a faulty understanding of Hart's work. Hart demonstrates that Dworkin's views are in fact strikingly similar to his own. In a final analysis, Hart's response leaves Dworkin's criticisms considerably weakened and his positions largely in question. Containing Hart's final and powerful response to Dworkin in addition to the revised text of the original Concept of Law, this thought-provoking and persuasively argued volume is essential reading for lawyers and philosophers throughout the world. (shrink)

Tthis book is likely to receive its warmest reception form advanced students of the philosophy of law, who will welcome the relief provided from the frequently sterile tone of much recent work in the field.

In The Construction of Social Reality, John Searle argues that there are two kinds of facts--some that are independent of human observers, and some that require..

In modern jurisprudence it is taken as axiomatic that John Austin's sanction-based account of law and legal obligation was demolished in H.L.A. Hart's The Concept of Law, but Hart's victory and the deficiencies of the Austinian account may not be so clear. Not only does the alleged linguistic distinction between being obliged and having an obligation fail to provide as much support for the idea of a sanction-independent legal obligation as is commonly thought, but the soundness of Hart's claims, as (...) well as the claims of many legal theorists who have followed him, depend on a contested view of the nature of legal theory. If the task of a theory of law, as Joseph Raz and others have influentially argued, is to identify the essential features of the concept of law, then the theoretical possibility, if not the empirical reality, of a sanction-free legal system is what is most important. But if the task of a theory of law is to provide philosophical and theoretical illumination of law as it exists and as it is experienced, then a theory of law that fails to give a central place to law's coercive reality may for that reason be deficient as a theory of law. The question of the soundness of the Austinian account, therefore, may be a function of the answer to the question of what a theory of law is designed to accomplish. (shrink)

Legitimate authority -- The claims of law -- Legal positivism and the sources of law -- Legal reasons, sources, and gaps -- The identity of legal systems -- The institutional nature of law -- Kelsen's theory of the basic norm -- Legal validity -- The functions of law -- Law and value in adjudication -- The rule of law and its virtue -- The obligation to obey the law -- Respect for law -- A right to dissent? : civil disobedience (...) -- A right to dissent? : conscientious objection --The purity of the pure theory -- The argument from justice, or how not to reply to legal positivism. (shrink)

A perennial question of jurisprudence has been whether there is a relationship between law and morality. Those who believe that there is no such relationship are known as while those who hold that some such relationship exists are usually tagged with the label Unfortunately, the latter phrase has been used in quite divergent senses. Sometimes it is used to designate any objectivist position about morality; as often, it labels the view that human nature determines what is objectively good or right; (...) and perhaps as often, it labels the view that some natural facts other than facts about human nature determine what is objectively good or right; and sometimes the label presupposes some divine origins to both morality and human law. (shrink)

Cummins (1982) argues that etiological considerations are not onlyinsufficient butirrelevant for the determination offunction. I argue that his claim of irrelevance rests on a misrepresentation of the use of functions in evolutionary explanations. I go on to suggest how accepting anetiological constraint on functional analysis might help resolve some problems involving the use of functional explanations.

This paper centers upon the issue, within the project of analytic jurisprudence, of how to construe the status of the legal activities of a state when there is a disjuncture between a nation's formal legal commitments, such as those stated within a bill or charter of rights, and the way in which its officials actually engage in the practice of law, i.e., legislation and adjudication. Although there are two positions within contemporary legal theory which focus directly on this issue (Inclusive (...) and Exclusive Legal Positivism), neither is able to offer an acceptable descriptive-explanatory account of the variety of legal activities at play within such situations. Thus, tensions between legal formality and practice, existent in many legal systems today, can be used to delineate a theoretical gap in regard to our understanding of law. This paper serves to acknowledge that point, and suggests a possible constructive solution to the positivists' descriptive-explanatory problem. Furthermore, in taking seriously the gap between the normative orientation of a legal system and its de facto practice, this paper also suggests other areas within analytic jurisprudence that might be meaningfully informed by that issue. (shrink)

“Triviality arguments” against functionalism in the philosophy of mind hold that the claim that some complex physical system exhibits a given functional organization is either trivial or has much less content than is usually supposed. I survey several earlier arguments of this kind, and present a new one that overcomes some limitations in the earlier arguments. Resisting triviality arguments is possible, but requires functionalists to revise popular views about the “autonomy” of functional description.

In this paper I outline various different objects of investigation that may be picked out by word “law” (or its cognates). All of these objects must be investigated in an integrated way before one can provide a complete philosophical explanation of the nature of law. I begin with the distinction between laws (artefacts) and law (the genre to which the artefacts belong). This leads me to the distinction between the law (of a particular legal system) and law (the genre of (...) artefacts). Then I discuss the contrast between law (the genre of artefacts) and law (the practice). Finally I comment on legality as the name of an ideal for laws and legal systems to live up to. I commend H. L. A. Hart's explanation of the nature of law for investigating these various objects in an integraed way, while nevertheless respecting the distinctions among them. I also criticise some of R. M. Dworkin's work for failing to respect the same distinctions. (shrink)

I argue that there is methodological space for a functional explanation of the nature of law that does not commit the theorist to a view about the value of that function for society, nor whether law is the best means of accomplishing it. A functional explanation will nonetheless provide a conceptual framework for a better understanding of the nature of law. First I examine the proper role for function in a theory of law and then argue for the possibility of (...) a neutral functional theory, addressing issues raised by Leslie Green, Stephen Perry, Michael Moore and John Finnis. (shrink)

In Karl Marx's Theory of History: A Defence (1978), G. A. Cohen has developed a distinctively functionalist interpretation of historical materialism. In this paper I outline Cohen's novel reconstruction of Marx and subject it to two independent internal criticisms. I first argue that explanations cannot conform to Cohen's functionalist model. I then suggest that even if there could be explanations having the structure he has proposed, they would fail to be helpful in illuminating the causal kernel of Marx's theory. Finally (...) I sketch a neglected but more promising approach to clarifying historical materialism, due to Geoffrey Hellman. (shrink)

If Raz and Dworkin disagree over how law should be characterised,how are we, their jurisprudential public, supposed to go about adjudicating between the rival theories which they offer us? To what considerations would those theorists themselves appeal in order to convince us that their accounts of law are accurate and successful? Moreover, what is it that makes an account of law successful? Evaluation and Legal Theory tackles methodological or meta-theoretical issues such as these, and does so via attempting to answer (...) the question: to what extent, and in what sense, must a legal theorist make value judgements about his data in order to construct a successful theory of law? Dispelling the obfuscatory myth that legal positivism seeks a 'value-free' account of law, the author attempts to explain and defend Joseph Razs position that evaluation is essential to successful legal theory, whilst refuting John Finnis and Ronald Dworkins contentions that the legal theorist must morally evaluate and morally justify the law in order to properly explain its nature. The book does not claim to solve the many mysteries of meta-legal theory but does seek to contribute to and engender rigorous and focused debate on this topic. (shrink)

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.

INTRODUCTION The appeal to teleological principles of explanation within the body of natural science has had an unfortunate history. ...

From his groundbreaking book Speech Acts to his most recent studies of consciousness, freedom and rationality John Searle has been a dominant and highly influential figure amongst contemporary philosophers. This systematic introduction to the full range of Searle's work begins with the theory of speech acts and proceeds with expositions of Searle's writings on intentionality, consciousness and perception, as well as a careful presentation of the so-called Chinese Room argument. The volume considers Searle's recent work on social ontology and his (...) views on the nature of law and obligation. It concludes with an appraisal of Searle's spirited defence of truth and scientific method in the face of the criticisms of Derrida and other postmodernists. This is the only comprehensive introduction to Searle's work, and as such it will be of particular value to advanced undergraduates, graduates and professionals in philosophy, psychology, linguistics, cognitive and computer science and literary theory. (shrink)

The purpose of this book -- Intentionality -- Collective intentionality and the assignment of function -- Language as biological and social -- The general theory of institutions and institutional facts: -- Language and social reality -- Free will, rationality, and institutional facts -- Power : deontic, background, political, and other -- Human rights -- Concluding remarks : the ontological foundations of the social sciences.

This book presents a comprehensive defence of legal positivism on the basis of a novel account of social conventions. Marmor argues that the law is founded on constitutive conventions, and that consequently moral values cannot determine what the law is.

In this volume, first published in 1983, Jon Elster approaches the study of technical change from an epistemological perspective.

One of the first volumes in the new series of prestigious Oxford Handbooks, The Oxford Handbook of Jurisprudence and Philosophy of Law brings together specially commissioned essays by twenty-six of the foremost legal theorists currently writing, to provide a state of the art overview of jurisprudential scholarship.

Polish translation of "John Searle: From Speech Acts to Social Reality", -/- We provide an overview of Searle's contributions to speech act theory and the ontology of social reality, focusing on his theory of constitutive rules. In early versions of this theory, Searle proposed that all such rules have the form 'X counts as Y in context C' formula – as for example when Barack Obama (X) counts as President of the United States (Y) in the context of US political (...) affairs. Crucially, the X and the Y terms are here identical. A problem arises for this theory for cases involving 'free-standing Y terms', as for example in the case of money in a computerized bank account. Here there is no physical X to which a status function might be attached. We conclude by arguing that Searle's response to this problem creates difficulties for his naturalistic framework. (shrink)

Part 1 of this exchange consists in a critique by Smith of Searle’s The Construction of Social Reality focusing on Searle’s use of the formula ‘X counts as Y in context C’. Smith argues that this formula works well for social objects such as dollar bills and presidents where the corresponding X terms (pieces of paper, human beings) are easy to identify. In cases such as debts and prices and money in a bank's computers, however, the formula fails, because these (...) are cases of what he calls ‘free-standing Y terms’, since there is here no X which can count as the corresponding Y. In his response in Part 2, Searle argues that Smith’s critique rests on three misunderstandings: 1. in wrongly presupposing that Searle is trying to analyze the nature of what he calls “social objects”, rather than of social facts; 2. in thinking that the counts as formula is intended as a definition, rather than as a mere mnemonic; and 3. in neglecting the naturalism of Searle’s account. (shrink)

Inclusive legal positivism maintains that the existence and content of laws may, but need not, depend on standards of morality. As Wil Waluchow argues, inclusive positivism derives much of its plausibility through its explanation of Charter societies such as Canada. On his account, the fundamental rights of political morality contained in the Canadian Charter of Rights and Freedoms serve as ultimate criteria of the existence or validity of all laws in Canada, and thus form part of Canada's rule of recognition. (...) In this paper I challenge Waluchow's inclusive positivist picture of Charter challenges. I argue instead that exclusive legal positivism, which maintains that resort to moral reasons may never figure in determinations of the existence or content of laws, better captures our ordinary understanding of the authoritative role of judges, constitutionality, and the traditional positivist conception of legal validity as a matter of social fact. Specifically, I argue that Joseph Raz's notion of a directed law-making power, and not reliance on an inclusive positivist rule of recognition, best explains the duty of judicial review in Charter cases. Further, the fundamental rights of political morality recognized in the Charter are best understood as constitutional objectives, and not criteria of validity, which all subordinate laws in Canada ought to respect, yet may fail to do so in practice. (shrink)

The problem I have in mind is the problem of the possible justification of subjecting one's will to that of another, and of the normative standing of demands to do so. The account of authority that I offered, many years ago, under the title of the service conception of authority, addressed this issue, and assumed that all other problems regarding authority are subsumed under it. Many found the account implausible. It is thin, relying on very few ideas. It may well (...) appear to be too thin, and to depart too far from many of the ideas that have gained currency in the history of reflection on authority. The present article modifies some aspects the account, and defends it against some criticism made against it. (shrink)