“Experimental jurisprudence” draws on empirical data to inform questions typically associated with jurisprudence or legal theory. Scholars in this flourishing movement conduct empirical studies about a variety of legal language and concepts. Despite the movement’s growth, its justification is still opaque. Jurisprudence is the study of deep and longstanding theoretical questions about law’s nature, but “experimental jurisprudence,” it might seem, simply surveys laypeople. This Article elaborates and defends experimental jurisprudence. Experimental jurisprudence, appropriately understood, is (...) not only consistent with traditional jurisprudence; it is an essential branch of it. (shrink)

African jurisprudence, like African philosophy, continues to be hotly debated. This article contends that the debate straddles the uniqueness claim which either emphasises the existence or possibility of a peculiar legal framework on the continent, and a historical co-extensional position reiterating that African jurisprudence is a continuum of other legal traditions. The article argues that there is no uniquely African jurisprudence, and that what obtains within the structures of jurisprudence on the continent also exists within various (...) legal traditions elsewhere, and as such can at best be described as ‘jurisprudence in Africa’ rather than ‘African jurisprudence’. It defends this thesis through analytic and comparative explications of the content of natural law theory and legal positivism as experienced on the continent. It concedes that relics of the colonial legal experience create contestations that inform scholars’ calls for a return to traditional legal systems. It concludes that a reconstructive jurisprudence in Africa must take cognisance of the continent’s historical and evolutionary legal experiences, but that a unified or monolithic theory may not be sufficient to address the choice of functional jurisprudence. Keywords African jurisprudence, jurisprudence in Africa, African legal evolution, diffused legal theories. (shrink)

Sample chapter from H. Asgeirsson, The Nature and Value of Vagueness in the Law (Hart Publishing, 2020), in which I present and partially defend a version of what has come to be called the communicative-content theory of law. Book abstract: Lawmaking is – paradigmatically – a type of speech act: people make law by saying things. It is natural to think, therefore, that the content of the law is determined by what lawmakers communicate. However, what they communicate is sometimes (...) vague and, even when it is clear, the content itself is sometimes vague. The monograph examines the nature and consequences of these two linguistic sources of indeterminacy in the law with the aim of providing plausible answers to three related questions: In virtue of what is the law vague? What might be good about vague law? How should courts resolve cases of vagueness? (shrink)

It is possible and thereby feasible to develop and implement a pragmatic methodology for a preemptive evidentiary system of ‘Paraphysical Jurisprudence’ for mediating the occurrence of massacres. A required comprehensive completion and formalizing of the tools of epistemology (theory of knowledge) already exists and has been tested both ecumenically and scientifically. The evolution of epistemology has followed the historical progression from myth and superstition to logic and reason to empiricism and now finally to the utility of ‘transcendence’ as a (...) tool in knowledge acquisition. An inspiring example from popular culture is illustrated in the 2002 Hollywood film noir “Minority Report” designed by its director to present a ‘plausible future world’ for the year 2054 wherein an elaborate ‘Precrime Unit’ is tested to prevent murder by utilizing a trio of ‘precogs’ bathed in a ‘photonic milk’ able to presciently predetermine impending occurrences of homicide for which the Precrime Police Unit then intervenes to prevent. Disdain for a putative so-called scientific metaphysics by natural philosophers is deeply rooted in modern pragmatic societies; perhaps rightly so as consistency, credibility and lack of a comprehensive theory has been heretofore emphatically lacking. In addition to the major problem of repeatability is the perceived distinction between domains of the physical and so-called ‘spiritual’ as mutually exclusive. In this work a strong case is made for the rigorous viability and near term putative implementation of a system of paraphysical jurisprudence drawing on the utility of a panoply of concepts. The remaining question is when does feasible become practical in the face of a steady increase in the heinous massacre of innocents? (shrink)

Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity (...) conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond the state. This article aims to use legal positivism to conceptualize a transnational commercial law order. Prevailing positivist accounts at least implicitly condition legal order on state sovereignty. The article offers a cosmopolitan conception of legal positivism, in which the state is no longer an enabling condition for law. The cosmopolitan conception provides the means by which to adequately describe a transnational commercial law order. There are limits to the conceptual analysis this article provides, one of which is that it does not purport to evaluate the justice or morality of transnational legal order. But the cosmopolitan conception of legal positivism elucidated in this article stands on its own as a way of understanding a number of transnational legal orders other than commercial law. The attractiveness of the account is that it describes law as a human social practice even when it is not solely the product of the state, so that we do not have to rely on natural law theories to understand legal rules that states do not maintain. (shrink)

This chapter offers an overview of experimental legal philosophy with a special focus on questions in general jurisprudence, that part of legal philosophy that asks about the concept and nature of law. Much of the experimental general jurisprudence work has tended to follow the questions that have interested general jurisprudence scholars for decades, that is, questions about the relation between legal norms and moral norms. Wholesale criticism of experimental general jurisprudence is scant, but, given existing debates (...) about experimental philosophy generally, one can anticipate where disagreement is likely to occur. Outside of experimental general jurisprudence, there is plenty of vibrant discussion about how experimental results can enrich our understanding of various concepts that figure in everyday legal thought such as causation, intention, consent, or meaning. In the future, experimental legal philosophers should continue to consider the degree to which their project is purely descriptive or whether it is revisionary or pragmatic in its ambitions. Also, future work might consider whether to focus more attention on legal experts. (shrink)

This paper explores the possibility that Hobbesian jurisprudence is best understood as a ‘third way’ in legal theory, irreducible to classical natural law or legal positivism. I sketch two potential ‘third theories’ of law -- legal pragmatism and legal dualism -- and argue that, when considered in its broadest sense, Leviathan is best viewed as an example of legal pragmatism. I consider whether this legal pragmatist interpretation can be sustained in the examination of Leviathan’s treatment of civil law, (...) and argue that the pragmatic interpretation can only be successful if we can resolve two textual issues in that chapter. First, while Hobbes argues that law entails the existence of public (sharable) reasons, he does not adequately defend the view that the sovereign is the unique authority over such reasons in all cases, especially as far as they concern known collective emergencies. Second, Hobbes both affirms and denies that a sovereign can fail to do justice, which is paradoxical. Both problems are best resolved by legal pragmatism, though the second problem resists a fully satisfying resolution. The upshot is that, although Leviathan ought to be regarded as an episode of legal pragmatism, there are trade-offs on every reading. (shrink)

This paper offers an original argument for a Humean thesis about promising that generalises to the domain of normative powers. The Humean ‘natural unintelligibility’ thesis – prominently endorsed by Rawls, Hart, and Anscombe, and roundly rejected or forgotten by contemporary writers (conventionalists and non – conventionalists alike) – holds that a rational, suitably informed agent cannot so much as make a promise (much less a morally-binding promise) without exploiting conventional norms that confer promissory significance on act types (e.g., signing (...) on the dotted line) that would not otherwise have such significance. The argument (like Hume’s) is action-theoretic in character; its central premise is the Contribution Condition on acting with an aim: roughly, that doing X in order to (bring about) Y requires that the agent believe that their having X-ed on the occasion might come to fully or partly account for Y’s coming to pass. The argument generalises to the broader domain of exercises of normative powers, i.e., to acts that modify normative properties by ‘fiat’ or ‘stipulation’. This stipulative act has been characterised in three different ways, each of which is given due consideration. Finally, two different ways of accommodating the ‘natural unintelligibility’ thesis are considered, as is the thesis’s normative significance. (shrink)

Some Anglophone legal theorists look to analytic philosophy for core presuppositions. For example, the epistemological theories of Ludwig Wittgenstein and Willard Quine shape the theories of Dennis Patterson and Brian Leiter, respectively. These epistemologies are anti-foundational since they reject the kind of certain grounding that is exemplified in Cartesian philosophy. And, they are coherentist in that they seek to legitimate truth-claims by reference to entire linguistic systems. While these theories are insightful, the current context of information and communication technologies (ICT) (...) has created new informational concepts and issues. As a result, the analytic epistemologies are increasingly challenged by alternative perspectives. One such alternative is Structural Realism (SR), which is influential among the natural sciences, and especially physics. “Informational Structural Realism,” (ISR) is a variant of SR that was introduced by Luciano Floridi. Unlike the coherentist theories, ISR promotes examination of the connections among types of information and informational structures. It is an important shift for legal theory today, since the challenges that the ICT presents have to do with pattern recognition across vast domains of diverse data. An informational jurisprudence is now required to understand the issues emerging from the ICT. (shrink)

Almost twenty years ago, a genuinely new school of thought emerged in the field of jurisprudential methodology. It is a pragmatist school. Roughly, the pragmatists contend that, when inquiring about the nature of law, we should evaluate potential answers based on practical criteria. For many legal philosophers, this contention seems both unclear and unhinged. That appearance is lamentable. The pragmatist approach to jurisprudential methodology has received insufficient attention for at least two reasons. First, the pragmatists do not conceive of themselves (...) as comprising a school; in fact, these proponents have different names for their common position, which makes it hard to see the commonalities. Second, the most famous statement of the pragmatist view has received withering criticism, criticism that has not been sufficiently answered, a fact that may lead opponents of pragmatism, as well as potential supporters, to doubt that a viable view of this kind can be held. This Essay aims to serve as a corrective. (shrink)

In this paper I argue that differences between the ‘new moral science’ of the seventeenth century and scholastic natural law theory originated primarily from the skeptical challenge the former had to face. Pufendorf’s project of a scientia practica universalis is the paramount expression of an anti-skeptical moral science, a ‘science’ that is both explanatory and normative, but also anti-dogmatic insofar as it tries to base its laws on those basic phenomena of human life which, supposedly, are immune to skeptical (...) doubt. The main scholastic legacy to the new moral science is the dichotomy between an ‘intellectualist’ and a ‘voluntarist’ view of natural law (or between lex immanens and lex imposita). Voluntarism lies at the basis of both theological views, such as Calvinism, and political views, such as those of Hobbes and Locke. The need to counterbalance the undesirable implications of extreme voluntarism may account for much of the developments in ethics and politics during the seventeenth and eighteenth centuries.Scottish natural jurisprudence, which tried to find a middle way between skepticism and extreme voluntarism, is less secular and more empirical than received wisdom admits. There emerged, as one of its ‘accidental’ outcomes, a systematic, self-contained and empirical economic theory from the search for an empirically based normative theory of social life. The basic assumption of such a theory, namely, the notion of societal laws as embedded in trans-individual mechanisms, derives from the voluntarist view of natural law as ‘imposed’ law.Later discussions of social issues in terms of ‘economic’ and ‘ethical’ reasons originated partly from a misreading ofthe Scottish natural jurisprudential framework of economic theory. Starting with this reconstruction, I try to shed some light on recent discussions about the role of ethics in economics. (shrink)

This essay proposes an ontological model in which a legal person such as a polity possesses natural unity from group properties that emerge in the self-organization of the human population. Also, analysis of customary legal persons and property indicates noncontradictory paradoxes that include Aristotelian essence of an entity, relative identity over time, ubiquitous authority, coinciding authorities, and identical entities. Mathematical modeling helps to explain the logic of the paradoxes.

Our purpose in this article is to draw attention to a connection that obtains between two dilemmas from two separate spheres: sports and the law. It is our contention that umpires in the game of cricket may face a dilemma that is similar to a dilemma confronted by legal decision makers and that comparing the nature of the dilemmas, and the arguments advanced to solve them, will serve to advance our understanding of both the law and games.

The concept of distributed moral responsibility (DMR) has a long history. When it is understood as being entirely reducible to the sum of (some) human, individual and already morally loaded actions, then the allocation of DMR, and hence of praise and reward or blame and punishment, may be pragmatically difficult, but not conceptually problematic. However, in distributed environments, it is increasingly possible that a network of agents, some human, some artificial (e.g. a program) and some hybrid (e.g. a group of (...) people working as a team thanks to a software platform), may cause distributed moral actions (DMAs). These are morally good or evil (i.e. morally loaded) actions caused by local interactions that are in themselves neither good nor evil (morally neutral). In this article, I analyse DMRs that are due to DMAs, and argue in favour of the allocation, by default and overridably, of full moral responsibility (faultless responsibility) to all the nodes/agents in the network causally relevant for bringing about the DMA in question, independently of intentionality. The mechanism proposed is inspired by, and adapts, three concepts: back propagation from network theory, strict liability from jurisprudence and common knowledge from epistemic logic. (shrink)

El trabajo consiste en una elucidación de los elementos que conforman el concepto de pena natural (poena naturalis) en el Derecho penal. Se puede caracterizar la pena natural como el daño o sufrimiento que recae sobre el autor de un delito, producto de la comisión del mismo, que debe ser descontado de la pena legal que ha de aplicársele. Si bien existe un mínimo acuerdo sobre esto, tanto en la jurisprudencia como en la doctrina penal se observan serios (...) desacuerdos acerca de los requisitos que se deben cumplir para reconocer que se está frente a una pena natural. Para elucidar los elementos, se utilizará el constructivismo conceptual de Ronald Dworkin, a fin de describir el desacuerdo y sus implicancias, reconocer los elementos principales de la pena natural y justificarlos bajo su mejor luz moral. ABSTRACT This study focuses on the clarification of the conceptual elements of poena naturalis in criminal law settings. The poena naturalis is the damage or suffering that falls on the convict for its commission. This damage must be deducted from the poena forensis to be applied. Although there is a minimum agreement about the concept of poena naturalis, in the jurisprudence and among legal scholars, there are serious disagreements about the elements of poena naturalis. To elucidate the elements, I will adopt Ronald Dworkin’s conceptual constructivism to describe the disagreement and its implications. At last, I will justify the main elements of the poena naturalis by their best moral light. (shrink)

I argue that law is best understood as an institutionalized abstract artifact. Using the ideas of John Searle on institutions and Amie Thomasson on artifacts, I show how the law is capable of generating new reasons for action, arguing against recent work by David Enoch who holds that legal reason-giving is ultimately a form of triggering conditional reasons.

This paper applies a very traditional position within Natural Law Theory to Cyberspace. I shall first justify a Natural Law approach to Cyberspace by exploring the difficulties raised by the Internet to traditional principles of jurisprudence and the difficulties this presents for a Positive Law Theory account of legislation of Cyberspace. This will focus on issues relating to geography. I shall then explicate the paradigm of Natural Law accounts, the Treatise on Law, by Thomas Aquinas. From (...) this account will emerge the structure of law and the metaphysics of justice. I shall explore those aspects of Cyberspace which cause geography to be problematic for Positive Law Theory and show how these are essential, unavoidable and beneficial. I will then apply Aquinas’s structure of law and metaphysics of justice to these characteristics. From this will emerge an alternative approach to cyberlaw which has no problem with the nature of Cyberspace as it is but treats it as a positive foundation for new legal developments. (shrink)

With his contribution on "The Natural Law in the American Tradition," Judge Diarmuid O'Scannlain has begun the indispensable task of laying the groundwork for sound jurisprudential reasoning in the natural law tradition. It is on the basis of this groundwork that we can begin to appreciate what natural law reasoning might mean, and what it does not mean, for contemporary American legal thinking. More specifically, it is on the basis of this groundwork that one can begin to (...) articulate what might be called a "third way" of jurisprudential reasoning. This "third way" would steer clear of two opposed and equally problematic jurisprudential views; that is, it would steer clear of what we might call "standard legal positivism" (on the one hand), and (on the other hand) what Judge O'Scannlain calls the "aggressive" natural law jurisprudence of some contemporary theorists. (shrink)

Shakespeare's works present intriguing explorations of law and legal theory. They help demonstrate the flaws in command-theory positivism, natural law theory and prediction theory accounts of the law. This is a simultaneously-published abbreviated version of a longer article published in Acta Iuridica Olomucensia in 2010.

I argue that the difference between the 17th century new moral science and Scholastic Natural Law Theory derived primarily from the skeptical challenge the former had to face. Pufendorf's project of a 'scientia practica universalis' was the paramount expression of an anti-skeptical moral science, a «science» both explanatory and normative, but also anti-dogmatic in so far as it tried to base its laws on those basic phenomena of human life that supposedly were outside the scope of skeptical doubt. Of (...) the Scholastic legacy to the new moral science, a dichotomy between an «intellettualistic» and a «voluntaristic» view of natural law (or between lex immanens and lex imposita). Voluntarism lays at the root both of theological views such as those of Calvinism and of political views such as those of Hobbes and Locke. A need to counterbalance undesirable implications of estreme voluntarism may account for much of 17th and 18th centuries developments in ethics and politics. Scottish natural jurisprudence, an expression of such quest for a third way between scepticism and extreme voluntarism, is less secular and more empirical than received wisdom admits of. One of its side-effects, namely a systematic, self-contained, and empirical economic theory, results from the search for a normative theory of social life on an empirical basis. The main tool for building such a theory, namely a view of societal laws as embedded in trans-individual mechanisms, derives from the voluntarist view of natural law as «imposed» law. Subsequent discussions of social issues based on the opposition of economic and ethical reasons originated partly from gross misreading of the Scottish natural jurisprudential framework for economic theory. (shrink)

Introduction. The book is a study in Adam Smith's system of ideas; its aim is to reconstruct the peculiar framework that Adam Smith’s work provided for the shaping of a semi-autonomous new discipline, political economy; the approach adopted lies somewhere in-between the history of ideas and the history of economic analysis. My two claims are: i) The Wealth of Nations has a twofold structure, including a `natural history' of opulence and an `imaginary machine' of wealth. The imaginary machine is (...) a kind of Newtonian theory, whose connecting links are principles; provided either by `partial' characteristics of human nature or by analoga of physical mechanisms transferred to the social world; ii) a domain of the economic, understood as a self-standing social sub-system, was discovered first by Adam Smith. His `discovery' of the new continent of the economic was an `unintended result' of a deviation in his voyage to the never-found archipelago of natural jurisprudence. -/- 1. Imaginary machines and invisible chains: natural philosophy and method. The first chapter reconstructs Smith's views on the method in natural philosophy, presented primarily in the History of Astronomy (HA). The peculiar kind of semi-sceptical Newtonianism which permeates the essay is highlighted. Its reconstruction of the history of one natural science is shown to be based on the assumptions of Hume’s epistemology, and to lead to a self-aware deadlock. Smith's dilemma is between an essentialist realism and sceptical instrumentalism; the Cartesian presuppositions he shares with Hume and with the 18th century as a whole make it impossible for him to overcome his dilemma. The following chapters will show how, on the one hand, Smith's skeptical methodology encourages him in the enterprise to `carve off' a new self-contained discipline and how, on the other hand, his epistemological dilemma is reflected in the inner tensions of his moral and political theory as well as in a number of basic oscillations concerning the status of the new discipline. -/- 2. Chessboards and clocks: moral philosophy and method. -/- The second chapter reconstructs Smith's views on the method in the parallel field of moral philosophy, including the theory of moral sentiments and natural jurisprudence. I argue that The Theory of Moral Sentiments, when considered together with with the Lectures on Jurisprudence, where Smith's peculiar version of a `weaker' form of natural law is presented, wins special interest, not only for the history of ethics but even more for the history of political theory and the social sciences. The two most striking features of Smith's work in this area are highlighted. First, his effort at reformulating the `practical science' is a methodologically self-aware attempt at applying the Newtonian method to moral subjects. Secondly, this attempt ends in a stalemate as two distinguished kinds of normative order are introduced: one ultimate order of Reason, ultimately justifiable but inaccessible, and one weaker order of our `natural sentiments', to which we have empirical access, but which is so variable as to lack any ultimate value as a basis for grounding our normative claims. These two parallel conundrums may arguably account for the author's inability to publish during his lifetime both The History of Astronomy and the projected history and theory of law and government. -/- 3. Wheels, dams, and gravitation: the structure of scientific argument in The Wealth of Nations. -/- The third chapter provides the core of the book, dealing with the structure of the argument in WN. I argue that the main presupposition that makes the shift possible from a `natural history' to a `system' approach is the Newtonian contrast of `mathematical' with `physical' explanation; that is, Smith drops any discussion of the "original qualities" of human nature that could account for economic behaviour, while introducing, as `principles' for the system, a set of `hypothetical' statements of `observed' regularities in human behaviour and of `observed' super-individual self-regulating mechanisms. In bringing this presupposition to light, the coexistence of a teleological with a mechanistic approach is clarified; fresh light is shed on the notion of the invisible hand by a comparison of its occurrence in Smith with the occurrence of the same expression (until now overlooked) in the correspondence between Newton and Cotes. Finally, the peculiar semi-prescriptive and semi-descriptive character of political economy are highlighted, and the consistency of Smith's `impure' semi-prescriptive social science, when understood in his own terms, is defended against familiar charges with inconsistency and against even more familiar strained modernizations. -/- 4. Apples, deer, and frivolous trinkets: the construction of the economic. -/- The fourth chapter draws consequences from the third, examining how Smith's achievement in political economy, marking its transition to scientific status, carried a re-description of the phenomena, creating the comparatively independent and unified field of the economic. Smith's achievement is interpreted not as the `discovery' of an autonomous character already possessed by the economy out there, so much as a Gestalt-switch by which our perception of social phenomena is modified making us `see' the partial order of the economy as an isolated system. To sum up, the autonomy of the economic in social reality and the autonomy of the economic in social consciousness are shown to be two sides of one process. -/- 5. Concluding considerations: Political economy and the Enlightenment halved. -/- A few suggestions on the status of economic theory two centuries after The Wealth of Nations in its relationship to ‘practical philosophy’ are illustrated. (shrink)

The experimental turn in philosophy has reached several sub-fields including ethics, epistemology, and metaphysics. This paper is among the first to apply experimental techniques to questions in the philosophy of law. Specifically, we examine Lon Fuller's procedural natural law theory. Fuller famously claimed that legal systems necessarily observe eight principles he called "the inner morality of law." We evaluate Fuller's claim by surveying both ordinary people and legal experts about their intuitions about legal systems. We conclude that, at best, (...) we should be skeptical of Fuller's inner morality of law in light of the experimental data. (shrink)

When he gave his first political work the title The Elements of Law Natural and Politic, Hobbes signalled an agenda to revise and incorporate continental Roman and Natural Law traditions for use in Great Britain, and from first to last he remained faithful to this agenda, which it took his entire corpus to complete. The success of his project is registered in the impact Hobbes had upon the continental legal system in turn, specific aspects of his theory, as (...) for instance the right to punish, entering the European civil code through Pufendorf, and remaining to this day. This is a topic of considerable importance at a time at which the UK is considering scrapping the European Union, with all the attendant the legal ramifications. But strangely, despite some acknowledgement of Hobbes’s contribution to European civil law, and specifically the German civil code, the larger legal context for his thought has not thus far been systematically addressed. -/- Key words: Hobbes, civil law, common law, jurisprudence, ‘artificial reason’, natural law, sovereignty,. (shrink)

David Hume’s legal theory has normally been interpreted as bearing close affinities to the English common law theory of jurisprudence. I argue that this is not accurate. For Hume, it is the nature and functioning of a country’s legal system, not the provenance of that system, that provides the foundation of its authority. He judges government by its ability to protect property in a reliable and equitable way. His positions on the role of equity in the law, on artificial (...) reason and the esoteric nature of the law, and on the role of judges in the legal system are all at odds with those of the common lawyers. (shrink)

In this paper, I defend the possibility that law is a functional kind by replying to objections from Leslie Green and Brian Tamanaha. I also show how Kenneth Ehrenberg’s approach to law’s functions in his latest book concedes too much to these objections. A functional kinds approach to law is possible and, for someone interested in showing the importance of law’s functions, preferable. I first explore Tamanaha’s objection and show that the possibility of functional equivalents does not pose a problem (...) for a functional kinds account of law. I then respond to Green by showing that law is more distinctively identified by its function than by the means by which it achieves this function. I quickly explore a lesser objection dealing with how law can pursue a variety of ends while having the same function the whole while. I then turn to an issue Ehrenberg raises regarding thinking of the law as having a plurality of functions like a Swiss Army knife. Finally, I show that Ehrenberg’s approach to the relationship between law and its functions is unnecessarily weak, as it avoids holding that law's nature or essence is its proper function for similar reasons to Green and Tamanaha. (shrink)

Anglo-American general jurisprudence remains preoccupied with the relationship of legality to morality. This has especially been so in the re-reading of Lon Fuller’s theory of an implied morality in any law. More often than not, Fuller has been said to distinguish between the identity of a discrete rule and something called ‘morality’. In this reading of Fuller, however, insufficient attention to what is signified by ‘morality’. Such an implied morality has been understood in terms of deontological duties, the Good (...) life, naturalism, and subjectively posited values. Each of these interpretations has a shared common denominator: namely, the distinction between ‘is’ and ‘ought’, ‘facts’ and ‘values’. Legality is said to be nested in an ‘is’ world. An ‘is’ cannot be derived from an ‘ought’. This essay aims to press this distinction further. Fuller, I intend to argue, does indeed accept the is/ought distinction as have his commentators. The associations of the ‘oughts’ with deontological duties, the Good life, naturalism and subjective values, however, have been misdirected. This has been so because Fuller presupposed that legality was a matter of a spatial structure. Non-law was situated outside the structure. If a legislator or judge considered matters outside the structure as if they were binding upon jurists and, for that matter, upon members of the legal structure, the law was not binding. The crucial incident of the structure was the boundary of the structure. Fuller’s structuralist theory of law offers the opportunity to better understand what he signified by ‘the internal morality of law’. I shall privilege several elements of his theory: the relation of legal units to a structure, the nature of a structure, the constituents of a structure (territorial space, its pillars and its matter); the forms of the legal structure; the centrifugal and centripetal structures, the structure and traditional theories of morality, the role of the legal official in a structure, and why the internal knowledge in the structure is binding. Fuller especially privileged two features of a legal structure. The one was the boundary of the structure. The second concerned the exteriority of the boundary. Both features presupposed a territorial sense view of legal knowledge. The legal mind analysed any social problem through the map of such a sense of legal space. By concentrating upon the discrete rule in isolation of the implied structural boundary to which the rule referred, commentators have attributed been misdirected in their analyses of Fuller’s theory of law and morality. My argument in this respect will proceed as follows. In order to clarify Fuller’s senses of the morality of law, I shall first outline what he means by a ‘structure’. Second, how is the structure related to legal knowledge? Third, what are the various forms of the structure? Fourth, is the structure centrifugal or centripetal? And finally, why is the structure binding? (shrink)

Reedition of papers in English spanning from 1986 to 2009 /// Historical background -- An imposed legacy -- Twentieth century contemporaneity -- Appendix: The philosophy of teaching legal philosophy in Hungary /// HISTORICAL BACKGROUND -- PHILOSOPHY OF LAW IN CENTRAL & EASTERN EUROPE: A SKETCH OF HISTORY [1999] 11–21 // PHILOSOPHISING ON LAW IN THE TURMOIL OF COMMUNIST TAKEOVER IN HUNGARY (TWO PORTRAITS, INTERWAR AND POSTWAR: JULIUS MOÓR & ISTVÁN LOSONCZY) [2001–2002] 23–39: Julius Moór 23 / István Losonczy 29 // (...) ON THE SURVIVAL OF ILMAR TAMMELO’S LETTER AND MANUSCRIPT ADDRESSED TO PROFESSOR MOÓR [2009] 41–44 // PROFESSIONAL DISTRESS AND SCARCITY: ALEXANDER HORVÁTH AND THE LEGACY OF NATURAL LAW IN HUNGARY [2005] 45–50 // HUNGARIAN LEGAL PHILOSOPHY IN THE 20TH CENTURY [2011] 51–72: I. The Pre-war Period [1. Bódog (Felix) Somló (1871–1920) 52] / II. The Inter-war Period [2. Gyula (Julius) Moór (1888–1950) 54 / 3. Barna Horváth (1896–1973) 55 / 4. József Szabó (1909–1992) 57 / 5. István Bibó (1911–1979) 58 / 6. Tibor Vas (1911–1983) 59 / 7. István Losonczy (1918–1980) 60] III. The Post-war Period (Communism) 61 [8. Imre Szabó (1912–1991) 62 / 9. Vilmos Peschka (1929–2006) 63 / 10. Kálmán Kulcsár (1928–2010) 65] IV. Contemporary Trends and Perspectives 66 [11. Csaba Varga (b. 1941) 66 / 12. András Sajó (b. 1949) 69 / 13. Béla Pokol (b. 1950) 70] V. Our Understanding of the Law Today 71 --- AN IMPOSED LEGACY -- LOOKING BACK [1999] 75–94: 1. On Ideologies and Marxism in general 75 / 2. Life of an Intellectual in Communism 79 / 3. On Marxism and its Socialist Cultivation in Particular 82 / 4. Legal Philosophising [4.1. Approaches to Law 87 / 4.2. Arriving at a Legal Ontology 91] 5. Conclusion 94 // LEGAL PHILOSOPHY OF THE MARXISM OF SOCIALISM: HUNGARIAN OVERVIEW IN AN INTERNATIONAL PERSPECTIVE [2003] 95–151: I. Development and Balance of Marxist Philosophising on Law in Hungary [1. Preliminaries (until 1948) 96 / 2. Stalinism (from the Soviet Occupation on) {a) Liquidation of the »Residues« 98 / b) Soviet-type Uniformisation [Gleichschaltung] 99 / c) Denial of the Past, with a Dual Effect 99 / d) »Socialist Legality«, Drawn from the Progressive Past of Western Europe 103 / e) Search for the Germs of Scholarly Evolution 103} 3. Institutionalisation Accompanied by Relaxation (from the 1960s) [a) Epigonism Becoming the Scholarly Ideal 104 / b) Stalinism in a Critical Self-perspective 105 / c) Disciples Diversified Launching their own Trends 107 / d) Comparatism 110 / e) (Re)discovery of the Western Legal Philosophy as a Competitor 112 / f) A Leading Mediatory Role within the »Socialist World Order« 114} 4. Disintegration (in the 1980s) {a) Attempt at Laying New Foundations for Marxism with Epigonism Exhausted 115 / b) Competitive Trends Becoming Exclusive 115 / c) Western Legal Philosophy Acknowledged as a Fellow-traveller within the Socialist Orbit Proper 116 / d) Hungarian Legal Theory Transforming into a National Corpus 118 / e) The Practical Promotion of Some Balance 119} 5. End-game for a Substitute State Religion (in the 1990s) 120] II. Marxist Legal Philosophising in an International Perspective [Ad 1: To the Preliminaries 122 / Ad 2: To Stalinism 124 / Ad 3: To Institutionalisation Accompanied by Relaxation {a) Late Separation from Vishinskiy’s Theory 125 / b) From Ideological Self-closure to an Apparently Scholarly Openness 127 / c) From Political Ideology to Genuine Scholarship 130 / d) International Recognition of Socialist Jurisprudence as an Independent Trend 135 / e) Together with Western Trends 137} Ad 4: To Disintegration {a) Loss of Attraction as Mere Epigonism 139 / b) Exclusivity of Competing Trends 139 / c) Fellowship with »Bourgeois« Trends 140 / d) An own Trend, Internationally Recognised 141 / e) A yet Progressive Role 142} Ad 5: To the Present state 143] III. A Temporary Balance 145 // AUTONOMY AND INSTRUMENTALITY OF LAW IN A SUPERSTRUCTURAL PERSPECTIVE [1986] 151–175: 1. The Strange Fate of Concepts 151 / I. A Relational Category 2. Basis and Superstructure: The Genuine Meaning 154 / 3. Exerting Social Influence as a Conceptual Minimum 156 / 4. Relationships within the Prevailing Totality 158 / 5. Attempts at Interpretation in Hungary 159 / 6. The Lukácsian Stand 162 / 7. Lukács’s Recognitions 168 / 8. Some Criticism 169 / II. The Law’s Understanding 171 / 9. Law Interpreted as Superstructure 171 / 10. Conclusions Drawn for the Law’s Understanding 173 // LEGAL THEORY IN TRANSITION (A PREFACE FROM HUNGARY) [2000] 177–186 // DEVELOPMENT OF THEORETICAL LEGAL THOUGHT IN HUNGARY AT THE TURN OF THE MILLENNIUM [2006] 187–215: 1. International Environment 188 / 2. The Situation in Hungary 190 / 3. Outlook I: The Historical-comparative Study of Legal Cultures and of the Lawyerly Way of Thinking 203 / 4. Outlook II: The Paradigmatic Enigma of the Transition to Rule of Law 207 / 5. Incongruity in Practice 213 / 6. Perspectives 214 --- TWENTIETH CENTURY CONTEMPORANEITY -- CHANGE OF PARADIGMS IN LEGAL RECONSTRUCTION: CARL SCHMITT AND THE TEMPTATION TO FINALLY REACH A SYNTHESIS [2002] 219–234: 1. Dangers of Intellectualism 219 / 2. Schmitt in Facts 221 / 3. Schmitt and Kelsen 222 / 4. On Bordering Conditions 226 / 5. With Kelsen in Transubstantiation 230 / 6. Polarisation as the Path of Theoretical Development 232 // KELSENIAN DOCUMENTS IN HUNGARY: CHAPTERS ON CONTACTS, INCLUDING THE GENESIS OF AUTOBIOGRAPHY [2006] 235–243: 1. Preludes 235 / 2. The Search for Moór’s Bequeath 235 / 3. Moór’s Collegiality 238 / 4. Bibó as a Disciple Translating 241 // THE »HART-PHENOMENON« [2002] 245–267: I. The Hart-miracle 246 [1. The Scene of Britain at the Time 247 / 2. The Personal Career 250 / 3. The Opus’ Career 252 / 4. Verbal Sociologism 255 / 5. Growing into the British Pattern 259] II. The Hart-phenomenon 260 [6. Origination of a Strange Orthodoxy 261 / 7. Mastering Periods of the 20th Century 263 / 8. Raising the Issue of Reception in Hungary 365] // LITERATURE? A SUBSTITUTE FOR LEGAL PHILOSOPHY? [2007] 269–287: 1. The Enigma of Law and its Study 269 / 2. “Law and Literature” 271 / 3. Varieties of “Law and Literature” 274 / 4. The German Study of Artistic Representations 280 / 5. Some Literary Reconsiderations 285 / 6. Conclusion 287 --- APPENDIX -- THE PHILOSOPHY OF TEACHING LEGAL PHILOSOPHY IN HUNGARY [2007] 291–320: I. Why and How to Philosophise in Law? 291 / II. The State of Teaching Legal Philosophy 294 / III. The Philosophy of Teaching Legal Philosophy 296 / IV. Programme at the Catholic University of Hungary 300 [1. Graduate Studies 300 {a) Basic Subjects 301 / b) Facultative Seminars 305 / c) Closing Subjects 309 / d) Written Memoranda and the Thesis 312} 2. Postgraduate Studies 313 / 3. Conclusion 317] V. Perspectives 318 /// Index of Subjects 321 / Index of Normative Materials 328 / Index of Names 329 . (shrink)

The passionate and staunch defence of logic of the controversial thinker Ibn Ḥazm, Abū Muḥammad ʿAlī b. Aḥmad b. Saʿīd of Córdoba (384-456/994-1064), had lasting consequences in the Islamic world. Indeed, his book Facilitating the Understanding of the Rules of Logic and Introduction Thereto, with Common Expressions and Juristic Examples (Kitāb al-Taqrīb li-ḥadd al-manṭiq wa-l-mudkhal ilayhi bi-l-alfāẓ al-ʿāmmiyya wa-l-amthila al-fiqhiyya), composed in 1025-1029, was well known and discussed during and after his time; and it paved the way for the studies (...) of his compatriots Ibn Bājjah (d. 1138), Ibn Ṭufayl (1185), and Ibn Rushd (1198), who each gave demonstrative reasoning a privileged place within the methods of attaining knowledge. Unfortunately, as too often in the history of science, Ibn Ḥazm’s innovative perspectives and contributions in logic have been overlooked or considered with an attitude of contempt. On the one hand, his work has been seen, at best, as promulgating the benefits of studying Aristotle’s logic, so that his contribution is assessed as more didactical than conceptual. And on the other hand, those who do examine his innovations often consider them to be mistaken. As indicated by Chejne (1984, p. 2) contempt towards the logical work of Ibn Ḥazm was also present in its reception by the Eastern philosophers who accused him of deviating from Aristotelian logic and of dabbling in things beyond his capability. However, a reassessment of his work on logic has since begun, by delving into the ways the thinker of Córdoba studied the links between deontic and modal qualification of propositions. In this context Lameer’s (2013) paper on the logical sources of Ibn Ḥazm is worth mentioning; the author (p. 417, footnote 1) observes that, although, strictly speaking, it was al-Fārābī who first drew the parallelism between deontic and modal concepts, it was Ibn Ḥazm who developed it and worked it out in a more precise manner. A primary aim of this paper is to help fill some of these gaps by stressing the role of the work of Ibn Ḥazm in developing a notion of deontic necessity deeply rooted in legal normativity, and in explicitly discussing the transference between deontic and modal concepts. According to our view; the basic units of Islamic deontic logic are what we might call, indulging in terminological anachronism, heteronomous imperatives. As it turns out, the heteronomy of imperatives within Islamic legal systems contrasts with those of the purely moral realm, which seem to be closer to an autonomous conception of moral law. There it concurs again with Leibniz’s proposal to define obligatory as “what is necessary for a good person to do”. In the present paper, we will focus on the heteronomous imperatives of legal systems rather than on the imperatives of the purely moral realm. In this context, the work of Ibn Ḥazm extends the parallelism between the necessity of events and that of human actions stressed by his predecessors. According to our understanding, Ibn Ḥazm’s parallelism can be rendered explicit formally by means of a conditional (or hypothetical) structure shared by both deontic and modal propositions. Moreover, this structure makes apparent that this parallelism displays an underlying system of “degrees”. Indeed, while in the domain of events, given some conditions, it makes sense to distinguish between an event that is more likely to happen than another. Ibn Ḥazm speaks of near and distant possibility (such as the higher degree of likelihood of rain, given the condensation of clouds in December, and its lower degree, when the condensation occurs in summer); and, in the domain of actions, the Islamic notion of weighting actions determines degrees of virtue (or of legal and moral value). So whereas the degree of virtue of performing a forbidden act as determined by the distribution of sanction and reward is 0, we obtain the same value by pondering the likelihood of an impossible event to take place. Furthermore, as discussed in section II.3.2, the system of values at work in the parallelism can be seen as opening the way to a more direct correspondence. Thus, while in the realm of nature, likelihood of occurrence of an event is dependent upon the conditions specific to the occurrence of that event; while, in the realm of jurisprudence, likelihood of performing an action is dependent upon the distribution of reward and sanction specific to that action (being that, given the choice to perform or not perform a given action, those that will be rewarded are more likely to be performed than those that are not). According to this perspective, the point of the parallelism is that both deontic and modal qualifications measure the degree of an action or event to become actual; that is – indulging once more in anachronism (but this time from the Leibnizian background) – the degree measures how feasible (facile) an action or event may be. This suggests that Ibn Ḥazm’s perspectives already herald the links to probability and possibility explored by Leibniz six centuries later – see for example Leibniz’s (1671, A VI, I, p. 424-26) use of probability in the context of conditional right. Nevertheless, it also shows a crucial difference to the approach developed in the Elementa Jura Naturalis: whereas Leibniz’s studies seek to define what is to be just or virtuous, the logical system of deontic imperatives within Islamic jurisprudence presupposes that what is to be virtuous has already been settled. Determining what is to be virtuous is not achieved by logical reasoning within the system of legal jurisprudence, but by delving into the higher objectives of the Sharīʿa. While developing our point, we will delve into the logical structure of the heteronomous imperatives. This distinguishes our contribution from the existing literature, such as the papers of Chejne (1984), Lameer (2014), and Guerrero (1997, 2010, 2014), which do not provide a logical analysis of the deontic concepts put into work by Ibn Ḥazm. The true antecedent to the present paper is the work of Farid Zidani (2007, 2015), who, so far as we know, was the first to undertake such a task. Some of our own developments and general epistemological thoughts go beyond Ibn Ḥazm’s framework and motivations; mainly those contained in sections II.3.2 and IV. However, according to our view, these reflections suggest that Ibn Ḥazm’s approach has the substance for a broader and deeper exploration of the logic of norms. The paper is structured as follows:I.Ibn Ḥazm’s Logic of Heteronomous Imperatives. After presenting some extracts of the relevant text, we proceed by providing a formal reconstruction of the five forms of deontic modalities. II. A Landmark in the History of the Logical Analysis of Norms. Duties and Modalities. In this section, we study the transferences from deontic to modal necessity and possibility. We briefly compare the deontic system of Islamic Jurisprudence with that of Leibniz.III. Leibniz and Hypothetical Imperatives in Law.IV. Beyond Ibn Ḥazm: Conclusions and the Work Ahead. We will conclude the paper by discussing briefly some conceptual points that distinguish the logic of heteronomous imperatives from contemporary deontic logic. Our final words will discuss deontic-modal parallelism in the context of Ibn Ḥazm’s rejection of reasoning by conjecture and what we call “the internalization of nature.”. (shrink)

First, the book does not have an original thesis. The thesisthe author wants to argue is that Smith is different from his current caricature, a legacy of his nineteenth-century image, according to which he would argue that: i) man is a maximizer of utility; ii) man is ordinarily moved by a narrow selfish interest, or at least is indifferent to the interests of others; iii) human beings are social atoms; iv) a perfectly competitive market is morally a free zone (pp. (...) 4-5). The author recognizes that these interpretations "are being questioned by many scholars". contemporary", however, reiterates his conviction that these interpretations are still prevalent, and cites in this regard the abuse of the name of Smith by the Chicago school (p.6). If the author's aim is to challenge a caricature, still common among non-experts but no longer shared by Smith's scholars, one may wonder whether this justifies a new book. Secondly, the author does not demonstrate mastery of the state of the art. She wants to demonstrate the non-existence of Adam Smith Problem, not only without any direct knowledge of German literature but ignoring an important article by Heilbroner from 1981 and a fundamental essay by Dickey from 1986 that explicitly advocate an exhumation of the "Adam Smith problem" in a new form. Thirdly, the author lacks the ability to understand concepts and problems in contextual terms: where she mentions Adam Smith's 'Newtonianism' she does not prove to be familiar with the literature on the subject, citing Lindgren as the only authority and ignoring, among others, Moscovici, Skinner, Hetherington and Freudenthal, but also seems to understand by Newtonianism an equivalent of deterministic and materialistic mechanicism (pp. 48-51). Besides, every time she uses the term utilitarianism he confuses it with the terms hedonism, economicism, selfishness (p. 155). (shrink)

The jurisprudence under international human rights treaties has had a considerable impact across countries. Known for addressing complex agendas, the work of expert bodies under the treaties has been credited and relied upon for filling the gaps in the realization of several objectives, including the peace and security agenda. -/- In 1982, the Human Rights Committee (ICCPR), in a General Comment observed that “states have the supreme duty to prevent wars, acts of genocide and other acts of mass violence (...) ... Every effort … to avert the danger of war, especially thermonuclear war, and to strengthen international peace and security would constitute the most important condition and guarantee for the safeguarding of the right to life.” Over the years, all treaty bodies have contributed in this direction, endorsing peace and security so as “to protect people against direct and structural violence … as systemic problems and not merely as isolated incidents …”. A closer look at the jurisprudence on peace and security, emanating from treaty monitoring mechanisms including state periodic reports, interpretive statements, the individual communications procedure, and others, reveals its distinctive nature. (shrink)

From the traditionalist position on international law, a new form of compact agreement, which cannot be classified as an international treaty in terms of academic framework, had long fueled much of contention in politics, international law, and constitutional law. A growing practice of compact agreement had been natural as corresponding with the global compression of international community and rising aspiration of peace regime on the international relations. The scholars of international law believe that, regardless of whether the President of (...) the United States is an internationalist or an isolationist, the enactment of international law in the 21st century will be based on more pragmatic rather than formal criteria. It is still true whether or not he is willing to accept or escape the international obligations so that we can more realistically share the powers conferred by the Constitution. On the other hand, a constitutional controversy on somewhat mushy yet sophisticated issues on the compact agreements began with the Laurence Tribe's acrimonious criticism in 1990. He argues that a procedure between Congress and the executive branch for the Clinton administration's accession to the North American Free Trade Agreement(NAFTA) is unconstitutional. His criticism pointed out that the NAFTA is unconstitutional since it is contrary to the text and structure of the Constitution. On the other hand, scholars of political science believe that, while a politics is termed as the distribution of values, the new form of compact agreement serves connecting the domestic and international politics as a living organism and must be affirmed from the standpoint of parliamentary politics. The political scientists argue on the necessity and inevitability of a new form of international agreement as pursuant to the nature of political process on informal procedures and parliamentary practices. In respect of the theoretical controversy, the paper is devoted to survey what the new form of compact agreement is, what types we can identify and explore the theoretical contest among the disciplines. As the dealings of paper attempt to touch on the core of scholarly assertions as fundamental and philosophical, the endeavor could inculcate the mind of international lawyers within and outside the government by providing a better framework to understand the specific real-world issues. The perception and rationale for the new form of international agreement should differ varying with their academic disciplines from which their thought stems from. The paper ends with implications within the grand scale of jurisprudence. (shrink)

[Encyclopedia entry] Born in Italy in 1225, and despite a relatively short career that ended around 50 years later in 1274, Thomas Aquinas went on to become one of the most influential medieval thinkers on political and legal questions. Aquinas was educated at both Cologne and Paris, later taking up (after some controversy) a chair as regent master in theology at the University of Paris, where he taught during two separate periods (1256-1259, 1269-1272). In the intermediate period he helped establish (...) a studium for his Order in Rome, beginning work on the Summa Theologiae, the masterwork for which he is still well-known. Subsequent to an experience (traditionally, a vision) Aquinas had on the feast of St. Nicholas in 1273, Aquinas intentionally refrained from further work on that text, so that it remained incomplete at the time of his death a year later in 1274. Apart from his own contributions, the Thomistic school – including followers within and without the Dominican Order to which Aquinas belonged – has had profound and far-reaching influence upon the history of legal thought in the West. Many of the classical developments of Thomistic thought are written as commentaries on the Summa Theologiae (hereafter, ST), including the works of Tomasso de Vio (Cajetan) and those of Domingo Banez, Francisco de Vitoria, Bartholome de las Casas, and the other highly influential members of the School of Salamanca who are noteworthy for developing Aquinas’ political and legal thought in the 16th century. Specifically, the ways in which Aquinas synthesized classical political and legal themes around the law, morality, and the common good provided a touchstone for what has come to be called ‘natural law jurisprudence.’ Natural law thinkers, in short, appeal to objective facts about what is good for human beings, and the social or political nature of the kind of creatures that we are, as a standard against which we measure the legal and social institutions created by human institutions. What is crucial here is that facts about human beings as social animals constitute reasons for individuals and groups to act or be structured in certain ways, such that ‘nature’ is the proper source for jurisprudential and political principles. (shrink)

Legal philosophers make a number of bold, contentious claims about the nature of law. For instance, some claim that law necessarily involves coercion, while others disagree. Some claim that all law enjoys presumptive moral validity, while others disagree. We can see these claims in at least three, mutually exclusive ways: (1) We can see them as descriptions of law’s nature (descriptivism), (2) we can see them as expressing non-descriptive attitudes of the legal philosophers in question (expressivism), or (3) we can (...) see them as practical claims about how we should view law or order our society (pragmatism). This paper argues that we should understand these claims in the pragmatist way, as claims about how we should view law or order society. (shrink)

Despite pervasive variation in the content of laws, legal theorists and anthropologists have argued that laws share certain abstract features and even speculated that law may be a human universal. In the present report, we evaluate this thesis through an experiment administered in 11 different countries. Are there cross‐cultural principles of law? In a between‐subjects design, participants (N = 3,054) were asked whether there could be laws that violate certain procedural principles (e.g., laws applied retrospectively or unintelligible laws), and also (...) whether there are any such laws. Confirming our preregistered prediction, people reported that such laws cannot exist, but also (paradoxically) that there are such laws. These results document cross‐culturally and –linguistically robust beliefs about the concept of law which defy people's grasp of how legal systems function in practice. (shrink)

It causes many difficulties for jurisprudence to define the notion of judicial activism. At the very beginning it had rather a journalistic character, but but over time it has become a serious charge against these judges who act on the basis of their vision of what the law ought to be like rather than what it actually is like. On the ground of the polish legal theory the echoes of the dispute about judicial activism are reflected in the discussions (...) about the nature of legal interpretation. Transposing the problem of activism into the problem of interpretation allows the use of analysis tools that were previously unavailable. One of these tools are concepts emerged on the neopragmatist philosophy of Stanley Fish. Fish tries to describe the nature of the interpretation in the context of reader-response criticism and the concept of interpretive communities. Application of Fish's philosophy in the field of legal theory provides constructive conclusions about the concepts of judicial activism and judicial law-making. (shrink)

This essay introduces the philosophy of legal information (PLI), which is a response to the radical changes brought about in philosophy by the information revolution. It reviews in some detail the work of Luciano Floridi, who is an influential advocate for an information turn in philosophy that he calls the philosophy of information (PI). Floridi proposes that philosophers investigate the conceptual nature of information as it currently exists across multiple disciplines. He shows how a focus on the informational nature of (...) traditional philosophical questions can be transformative for philosophy and for human self-understanding. The philosophy of legal information (PLI) proposed here views laws as a body of information that is stored, manipulated, and analyzed through multiple methods, including the computational methodologies. PLI offers resources for evaluating the ethical and political implications of legal infomatics (also known as "legal information systems"). -/- This essay introduces PLI. Parts I and II describe Floridi's philosophy of information. First, Part I introduces the transformation in the concept of information that occurred in the twentieth century through the work of Alan Turning and Claude Shannon. Part II describes Floridi's approaches to traditional questions in epistemology, ontology, and ethics. Part III applies PI to the analysis of legal positivism. It suggests that PLI is a viable project that has potential for transforming the understanding law in the information age. -/- . (shrink)

Suppose that the members of a group each hold a rational set of judgments on some interconnected questions, and imagine that the group itself has to form a collective, rational set of judgments on those questions. How should it go about dealing with this task? We argue that the question raised is subject to a difficulty that has recently been noticed in discussion of the doctrinal paradox in jurisprudence. And we show that there is a general impossibility theorem that (...) that difficulty illustrates. Our paper describes this impossibility result and provides an exploration of its significance. The result naturally invites comparison with Kenneth Arrow's famous theorem (Arrow, 1963 and 1984; Sen, 1970) and we elaborate that comparison in a companion paper (List and Pettit, 2002). The paper is in four sections. The first section documents the need for various groups to aggregate its members' judgments; the second presents the discursive paradox; the third gives an informal statement of the more general impossibility result; the formal proof is presented in an appendix. The fourth section, finally, discusses some escape routes from that impossibility. (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)

"Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. The two principles require a system of procedure to aim at accuracy and to afford reasonable rights of participation qualified by a practicability constraint. The Article begins in Part I, Introduction, with two (...) observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question - what is procedure? - is the most difficult and requires an extensive answer: Part II, Substance and Procedure, defines the subject of the inquiry by offering a new theory of the distinction between substance and procedure that acknowledges the entanglement of the action-guiding roles of substantive and procedural rules while preserving the distinction between two ideal types of rules. The key to the development of this account of the nature of procedure is a thought experiment, in which we imagine a world with the maximum possible acoustic separation between substance and procedure. Part III, The Foundations of Procedural Justice, lays out the premises of general jurisprudence that ground the theory and answers a series of objections to the notion that the search for a theory of procedural justice is a worthwhile enterprise. Sections II and III set the stage for the more difficult work of constructing a theory of procedural legitimacy. Part IV, Views of Procedural Justice, investigates the theories of procedural fairness found explicitly or implicitly in case law and commentary. After a preliminary inquiry that distinguishes procedural justice from other forms of justice, Part IV focuses on three models or theories. The first, the accuracy model, assumes that the aim of civil dispute resolution is correct application of the law to the facts. The second, the balancing model, assumes that the aim of civil procedure is to strike a fair balance between the costs and benefits of adjudication. The third, the participation model, assumes that the very idea of a correct outcome must be understood as a function of process that guarantees fair and equal participation. Part IV demonstrates that none of these models provides the basis for a fully adequate theory of procedural justice. In Part V, The Value of Participation, the lessons learned from analysis and critique of the three models are then applied to the question whether a right of participation can be justified for reasons that are not reducible to either its effect on the accuracy or its effect on the cost of adjudication. The most important result of Part V is the Participatory Legitimacy Thesis: it is (usually) a condition for the fairness of a procedure that those who are to be finally bound shall have a reasonable opportunity to participate in the proceedings. The central normative thrust of Procedural Justice is developed in Part VI, Principles of Procedural Justice. The first principle, the Participation Principle, stipulates a minimum (and minimal) right of participation, in the form of notice and an opportunity to be heard, that must be satisfied (if feasible) in order for a procedure to be considered fair. The second principle, the Accuracy Principle, specifies the achievement of legally correct outcomes as the criterion for measuring procedural fairness, subject to four provisos, each of which sets out circumstances under which a departure from the goal of accuracy is justified by procedural fairness itself. In Part VII, The Problem of Aggregation, the Participation Principle and the Accuracy Principle are applied to the central problem of contemporary civil procedure - the aggregation of claims in mass litigation. Part VIII offers some concluding observations about the point and significance of Procedural Justice. (shrink)

Contra recent, inflationary views, the paper submits a deflationary approach to legal ontology. It argues, in particular, that to answer ontological questions about legal entities, we only need conceptual analysis and empirical investigation. In developing this proposal, it follows Amie Thomasson’s ‘easy ontology’ and her strategy for answering whether ordinary objects exist. The purpose of this is to advance a theory that, on the one hand, does not fall prey to sceptical views about legal reality (viz., that ontological truths about (...) legal entities are established by metaphysical principles); and, on the other, is compatible with common-sense jurisprudence (viz., that there in fact exist legal entities, and they all have important practical implications). While this methodology is common to legal philosophers interested in elucidating the ‘artifactual nature’ of law, the paper departs from their projects by taking a step forward in connecting this deflationary approach to legal ontology with an expressivist account of legal discourse, thus providing enough resources to satisfy the general ambition of jurisprudence, viz., to establish the conditions for the analysis of legal reality and its normative character. (shrink)

This article focuses on issues relating to legal normativity, emphasizing the way these matters have been elaborated in the works of Kelsen and Hart and later commentators on their theories. First, in Section 2, the author offers a view regarding the nature of law and legal normativity focusing on Kelsen's work (at least one reasonable reading of it). The argument is that the Basic Norm is presupposed when a citizen chooses to read the actions of legal officials in a normative (...) way. In this Kelsenian approach, all normative systems are structurally and logically similar, but each normative system is independent of every other system – thus, law is, in this sense, conceptually separate from morality. Second, in Section 3, the author turns to Hart's theory, analyzing the extent to which his approach views legal normativity as sui generis. This approach raises questions regarding what has become a consensus view in contemporary jurisprudence: that law makes moral claims. The author shows how a more deflationary (and less morally-flavored) understanding of the nature of law is tenable, and may, in fact, work better than current conventional (morality-focused) understandings. (shrink)

One of the most important challenges for political theory is to identify the extent to which corporations should be facilitated and restricted in law. By way of background to that challenge, we need to develop a view about the nature and potential of corporations and corporate bodies in general. This chapter discusses two fallacies that we should avoid in this exercise. One, a claim popular among economists, that corporate bodies are not really agents at all. The other, a claim associated (...) with US jurisprudence, that not only are they agents, they are persons whose rights call in the same way as the rights of individual persons for legal recognition and protection. (shrink)

In the growing Prussian university system of the early nineteenth century, "Wissenschaft" (science) was seen as an endeavor common to university faculties, characterized by a rigorous methodology. On this view, history and jurisprudence are sciences, as much as is physics. Nineteenth century trends challenged this view: the increasing influence of materialist and positivist philosophies, profound changes in the relationships between university faculties, and the defense of Kant's classification of the sciences by neo-Kantians. Wilhelm Dilthey's defense of the independence of (...) the methodology of the human sciences (Geisteswissenschaften) from those of the natural sciences (Naturwissenschaften) is as much a return to the ideal of Wissenschaft as a cooperative endeavor as it is a defense of the autonomy of interpretive or hermeneutic methods. The debate between Dilthey and the neo-Kantian Wilhelm Windelband at the close of the century illuminates the development of this dialogue over the nineteenth century. (shrink)

There is a tendency in contemporary jurisprudence to regard political authority and, more particularly, legal intervention in human affairs as having no justification unless it can be defended by what Laing calls the principle of modern liberal autonomy (MLA). According to this principle, if consenting adults want to do something, unless it does specific harm to others here and now, the law has no business intervening. Harm to the self and general harm to society can constitute no justification for (...) legal regulation or prohibition. So pervasive is this understanding of legal intervention in human affairs, that it is common now to encounter arguments in favour of permissive laws on, for example, private drug use, pornography, sexual and reproductive choice, based on the idea that to intervene in these areas would constitute a breach of the liberal ideal. The only alternative to modern liberal autonomy is assumed to be radical oppression, in which the State intervenes in the individual’s life to impose unwarranted measures designed to further its own ends. The legacy of Stalin, Hitler and other modern tyrants has undermined conceptual appeals to the common good. So widespread is this liberal assumption in the Western, English-speaking world that critics of the outlook embodied by MLA are customarily regarded with suspicion and charged with paternalism, narrow-mindedness and intolerance. Laing highlights contradictions inherent in the modern liberal tradition. She argues that there is a certain reliance on the notion of the common good within the natural law tradition that is instructive. According to this view, the common good constitutes a mean between two extremes: on the one hand, contemporary liberalism’s over-insistence on radical individual autonomy and, on the other hand, totalitarianism’s over-emphasis on collective social benefit. There is, I will argue, substantial terrain between the conceptual excesses of modern liberalism and oppressive tyranny that needs to be acknowledged and discussed. (shrink)

A psychology-informed view of human rights has been taken into account by many scholars while examining the short-term and long-term effects of human rights violations on individuals and communities. In Trauma and Human Rights: Integrating Approaches to Address Human Suffering, for instance, the authors discuss the trauma-informed approach in the context of human rights violations, namely domestic violence, racial and other forms of discrimination, etc. In the paper on Trauma among children and legal implications, the authors advance a trauma-informed approach (...) to human rights. The approach considers the experiences of trauma associated with physical abuse, sexual abuse, neglect, psychological/emotional abuse, community violence, natural disasters, serious accidents, parental death/grief, medical procedures and conditions, and terrorism. In the case of violations including rape and torture, the paper Torture by means of Rape concerns the psychological suffering of victims of rape, abuse, and torture in light of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. As for the jurisprudence of international human rights bodies, the advancement of a psychology-informed view of human rights is noticeable. Take the example of the Report of the Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment on Biopsychosocial factors conducive to torture and ill-treatment. The Report explores the root causes of the current worldwide complacency concerning torture and ill-treatment and recommends the urgent and proactive incorporation of science-based conclusions into ongoing, policy-based global governance reform processes. Further, the report provides that the root cause of the systemic governance failure is attributed to the generic biopsychosocial factors that have shaped human decision-making throughout history, irrespective of national, cultural, religious, or other distinctive influences. Since the two fields are creating a landscape of new concepts and perspectives, one may study this interface broadly under three headings; (a) Psychology in Human Rights. (b) Rights-Based Approach to Psychological Science and Research. (c) Psychology and Human Rights in Law and Policy. (shrink)

The goal of this essay is to explore "the highly contested nature of [decision-making through adopting] a historically comparative and interdisciplinary approach." Internalist history of game theory treats decision theory as a science of making choices to maximize expected gain. Game theory is applied to nuclear deterrence and military strategy, building markets and designing institutions, analyzing collective action, developing jurisprudence, and addressing crime and punishment. This essay draws on recent historiography of Cold War decision-making to draw into focus the (...) constructive aspects of decision theory to argue that the perceived need to avoid worst-case scenarios has instead contributed to a world in which the worst outcome is probabilistically assured to occur over the long duree timeframe. (shrink)

I will argue that the natural law theory of morality, when extended into a political theory of justice, results in a picture of political justice much like that of public reason liberalism. However, natural law political theory, I argue, need not entail a natural law theory of morality. While facts about what societies ought to do supervene upon facts about what is good for human beings, there are distinct goods involved and distinct reasons for action. Rather, considerations (...) taken from the common good as guiding public policy results in a two-layer approach to public reasonability, resembling features of both consensus and convergence accounts of public reason. Consequently, the differences between natural law and classical public reason liberalism are significant but are not as significant as might have otherwise appeared. In fact, natural law political theory might be a more consistent development of the idea of a public reason than those of classical liberalism. (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)

The paper discusses the relationship between Adam Smith’s economic doctrines and his ethical doctrines in the light of the “Lectures on Jurisprudence”. The main claim is a comparatively autonomous status of economic discourse, an autonomy granted not by dismissal of ethical claims but instead precisely by a given constellation of claims, on liberty, justice, equality, prudence and benevolence.