In the modern period, the most original and influential theories about law and politics were developed in connection with a set of far-reaching, interrelated questions about the definition of law, the purpose of law, the relationship between law and morality, and the existence of natural law and natural rights. In this entry I summarize the contributions of Charles-Louis de Secondat, Baron de La Brède et de Montesquieu; William Blackstone; Jeremy Bentham; and Immanuel Kant as exemplars of the history of (...) modern thought on law and politics. (shrink)

What follows is an attempt to do some conceptual housekeeping around the notion of secret law as provided by Christopher Kutz (2013). First I consider low-salience (or merely obscure) law, suggesting that it fails to capture the legal and moral facts that are at stake in the case which Kutz used to motivate it. Then I outline a theoretical contrast between mere obscurity and secrecy, in contrast to the 'neutral' account of secrecy provided by Sissela Bok (1989). The upshot of (...) the two sections is that low-salience law is neither secret law nor necessarily problematic, though it closely resembles a kind of law that is both secret and problematic: namely, those legal obscurities that subvert manifest interests related to the informational needs of citizens. The ensuing argument undermines the fiction of constructive presence found in Austin and Blackstone. (shrink)

What are laws, and do they necessarily have any basis in morality? The present work argues that laws are governmental assurances of protections of rights and that concepts of law and legal obligation must therefore be understood in moral terms. There are, of course, many immoral laws. But once certain basic truths are taken into account – in particular, that moral principles have a “dimension of weight”, to use an expression of Ronald Dworkin’s, and also that principled relations are not (...) always expressed by perfect statistical concomitances – the existence of iniquitous laws poses no significant threat to a moralistic analysis of law. Special attention is paid to the debate between Ronald Dworkin and H.L.A. Hart. Dworkin’s over-all position is argued to be correct, but issue is taken with his argument for that position. Hart’s analysis is found to be vitiated by an impoverished conception of morality and also of the nature of government. Our analysis of law enables us to answer three questions that, at this juncture of history, are of special importance: Are there international laws? If not, could such laws exist? And if they could exist, would their existence necessarily be desirable? The answers to these questions are, respectively: “no”, “yes”, and “no.” Our analysis of law enables us to hold onto the presumption that so-called legal interpretation is a principled endeavor, and that some legal interpretations are truer to existing laws than others. At the same time, it accommodates the obvious fact that the sense in which a physicist interprets meter-readings, or in which a physician interprets a patient’s symptoms, is different from the sense in which judges interpret the law. So our analysis of law enables us to avoid the extreme views that have thus far dominated debates concerning the nature of legal interpretation. On the one hand, it becomes possible to avoid the cynical view (held by the so-called “legal realists”) that legal interpretation is mere legislation and that no legal interpretation is more correct than any other. On the other hand, it becomes possible to avoid Blackstone’s view (rightly descried by Austin as a “childish fiction”) that judges merely discover, and do not create, the law. (shrink)

Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard of proof, (...) instead defending a modestly flexible approach on non-consequentialist grounds. The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments. This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society. (shrink)

This essay shows that the principles of classical liberalism (e.g., James Buchanan) do not apply to the firm based on the employer-employee relationship. However, there is a deeper democratic classical liberalism tradition based on inalienable rights, but it rules out the employment or human rental relation.

An introduction to philosophical research on the standards of legal proof.

Discusses the idea that legal proof should use variable standards rather than a single fixed threshold.