Democracy is not naturally plausible. Why turn such important matters over to masses of people who have no expertise? Many theories of democracy answer by appealing to the intrinsic value of democratic procedure, leaving aside whether it makes good decisions. In Democratic Authority, David Estlund offers a groundbreaking alternative based on the idea that democratic authority and legitimacy must depend partly on democracy's tendency to make good decisions.Just as with verdicts in jury trials, Estlund argues, the authority and legitimacy of (...) a political decision does not depend on the particular decision being good or correct. But the "epistemic value" of the procedure--the degree to which it can generally be accepted as tending toward a good decision--is nevertheless crucial. Yet if good decisions were all that mattered, one might wonder why those who know best shouldn't simply rule.Estlund's theory--which he calls "epistemic proceduralism"--avoids epistocracy, or the rule of those who know. He argues that while some few people probably do know best, this can be used in political justification only if their expertise is acceptable from all reasonable points of view. If we seek the best epistemic arrangement in this respect, it will be recognizably democratic--with laws and policies actually authorized by the people subject to them. (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)

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)

Allow me to rehearse a familiar scenario. We all know that which ends you have has something to do with what you ought to do. If Ronnie is keen on dancing but Bradley can’t stand it, then the fact that there will be dancing at the party tonight affects what Ronnie and Bradley ought to do in different ways. In short, (HI) you ought, if you have the end, to take the means. But now trouble looms: what if you have (...) dreadful, murderous ends? Ought you to take the means to them? Seemingly not. But fortunately, an assumption made by deontic logics1 comes to the rescue. Since ‘‘ought’’, according to this assumption, is a sentential operator, HI must really be ambiguous. It could be read either as (Narrow) You have the end ! O(you take the means) or as (Wide) O(you have the end ! you take the means). Now if Narrow is true, then you really ought to take the means to your murderous ends. But this doesn’t follow from Wide. All that follows from Wide is that you ought to either take the means to these ends or else give them up. Conclusions: (1) Since HI is on some reading true, but Narrow isn’t, Wide is true. (2) Wide accounts for the relationship between your ends and what you ought to do. This elegant scenario repeats itself in many other domains in which it seems like something can have a bearing on what some particular agent ought to do. Does what you know affect what you ought to do? Do your beliefs about what you ought to do affect what you ought to do? Do your promises affect what you ought to do? Do your beliefs affect what you ought to believe? On each of these counts, the intuitive answer is ‘‘yes’’. And so each of these questions leaves something for the moral philosopher or the epistemologist to investigate. On each count, it seems that what we all know, is that (Account) you ought, if p, to do A. But on each count, the Narrow-scope reading of the ‘‘ought’’ in this claim yields unintuitive consequences. So since Account is true, it must be true on the Wide-scope reading.. (shrink)

A considerable number of books and papers have analyzed normative concepts using new techniques developed by logicians; however, few have bridged the gap between the English legal culture and the Continental tradition in legal philosophy. This book addresses this issue by offering an introductory study on the many possibilities that logical analysis offers the study of legal systems. The volume is divided into two sections: the first covers the basic aspects of classical and deontic logic and its connections, advancing an (...) explanation of the most important topics of the discipline by comparing different systems of deontic logic and exploring some of the most important paradoxes in its domain. The second section deals with the role of logic in the analysis of legal systems by discussing in what sense deontic logic and the logic of norm-propositions are useful tools for a proper understanding of the systematic structure of law. (shrink)

Moral theories usually aspire to be explanatory – to tell us why something is wrong, why it is good, or why you ought to do it. So it is worth knowing how moral explanations differ, if they do, from explanations of other things. This paper uncovers a common unarticulated theory about how normative explanations must work – that they must follow what I call the Standard Model. Though the Standard Model Theory has many implications, in this paper I focus primarily (...) on only one. It plays a crucial role in an argument originally due to Cudworth that has been widely held to conclusively establish that voluntaristic ethical theories are incoherent. But if Cudworth’s argument works, then so would similar arguments against many other moral theories. All of these theories therefore need a different model for how normative explanations can work. So I also motivate and sketch one such alternative model. The result enables us to make progress in evaluating the prospects for a successful reductive view about the normative. (shrink)

I am writing a mediocre paper on a topic you are not particularly interested in. You don't have, it seems safe to assume, a (normative) reason to read my draft. I then ask whether you would be willing to have a look and tell me what you think. Suddenly you do have a (normative) reason to read my draft. By my asking, I managed to give you the reason to read the draft. What does such reason-giving consist in? And how (...) is it that we can do it? In this paper, I characterize what I call robust reason giving, the kind present in requests. I distinguish it from epistemic and merely triggering reason-giving, I discuss in detail the phenomenology of robust reason-giving, and I offer an analysis of robust reason-giving in terms of the complex intentions of the reason-giver and of the normative background. (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)