Neil MacCormick
- Published in print:
- 2008
- Published Online:
- May 2009
- ISBN:
- 9780198268772
- eISBN:
- 9780191713071
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198268772.001.0001
- Subject:
- Law, Philosophy of Law
The concept of practical reason is central to contemporary thought on ethics and the philosophy of law — acting well means acting for good reasons. Explaining this requires several stages. How do ...
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The concept of practical reason is central to contemporary thought on ethics and the philosophy of law — acting well means acting for good reasons. Explaining this requires several stages. How do reasons relate to actions at all, as incentives and in explanations? What are values, how do they relate to human nature, and how do they enter practical reasoning? How do the concepts of ‘right and wrong’ fit in, and in what way do they involve questions of mutual trust among human beings? How does our moral freedom — our freedom to form our own moral commitments — relate to our responsibilities to each other? How is this final question transposed into law and legal commitments? This book explores these questions, vital to understanding the nature of law and morality. It presents an account of practical reason. It also offers a reinterpretation of Kant's views on moral autonomy and Adam Smith's on self-command, marrying Smith's ‘moral sentiments’ to Kant's ‘categorical imperative’.Less
The concept of practical reason is central to contemporary thought on ethics and the philosophy of law — acting well means acting for good reasons. Explaining this requires several stages. How do reasons relate to actions at all, as incentives and in explanations? What are values, how do they relate to human nature, and how do they enter practical reasoning? How do the concepts of ‘right and wrong’ fit in, and in what way do they involve questions of mutual trust among human beings? How does our moral freedom — our freedom to form our own moral commitments — relate to our responsibilities to each other? How is this final question transposed into law and legal commitments? This book explores these questions, vital to understanding the nature of law and morality. It presents an account of practical reason. It also offers a reinterpretation of Kant's views on moral autonomy and Adam Smith's on self-command, marrying Smith's ‘moral sentiments’ to Kant's ‘categorical imperative’.
Allan C. Hutchinson
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195343250
- eISBN:
- 9780199867752
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343250.001.0001
- Subject:
- Law, Philosophy of Law
This book explores the implications of taking a vigorously democratic approach to issues of traditional legal theory. Allan C. Hutchinson introduces the democratic vision and examines the ...
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This book explores the implications of taking a vigorously democratic approach to issues of traditional legal theory. Allan C. Hutchinson introduces the democratic vision and examines the complementary philosophy of a Dewey-inspired pragmatism. This is followed by an examination from a pragmatic perspective of the dominant theories of analytical jurisprudence in both their positivist and naturalist forms. The book emphasizes the contested concepts of “truth”, “facts”, and “law/morality relation” and explores what a more uncompromising democratic/pragmatic agenda for law and legal theory would entail. The author's intent is to contribute to the shift away from a technical and elite philosophical approach to jurisprudence to a more democratic engagement. It advances and follows through on the critical claim that there is no position of theoretical or political innocence. Like the law it seeks to illuminate, legal theory must recognize its own political and social setting as well as its own responsibilities. Moreover, whatever else democracy might entail or imply, it opposes elite rule whether by autocrats, functionaries or theorists, however enlightened or principled their proposals or interventions may be: authority must come from below, not above.Less
This book explores the implications of taking a vigorously democratic approach to issues of traditional legal theory. Allan C. Hutchinson introduces the democratic vision and examines the complementary philosophy of a Dewey-inspired pragmatism. This is followed by an examination from a pragmatic perspective of the dominant theories of analytical jurisprudence in both their positivist and naturalist forms. The book emphasizes the contested concepts of “truth”, “facts”, and “law/morality relation” and explores what a more uncompromising democratic/pragmatic agenda for law and legal theory would entail. The author's intent is to contribute to the shift away from a technical and elite philosophical approach to jurisprudence to a more democratic engagement. It advances and follows through on the critical claim that there is no position of theoretical or political innocence. Like the law it seeks to illuminate, legal theory must recognize its own political and social setting as well as its own responsibilities. Moreover, whatever else democracy might entail or imply, it opposes elite rule whether by autocrats, functionaries or theorists, however enlightened or principled their proposals or interventions may be: authority must come from below, not above.
Alexander Somek
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199542086
- eISBN:
- 9780191715518
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199542086.001.0001
- Subject:
- Law, Philosophy of Law, EU Law
This new and innovative study explains that a transnational regime is based on a conception of citizenship that is different from the conception underlying a constitutional democracy. Citizens are ...
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This new and innovative study explains that a transnational regime is based on a conception of citizenship that is different from the conception underlying a constitutional democracy. Citizens are deemed to be essentially separate from one another. They abandon larger society to itself and pursue their good in the private sphere. In lieu of trust and reliance in their own power to bring about change through common action, they hope to benefit from entrusting ‘problem-solving’ to international networks of expertise. Put bluntly, citizens of this kind exhibit a strong commitment to individualism. The book shows how individualism is reflected in the regulatory authority that the Union claims for itself, in particular as regards the regulation of the internal market. The paradigmatic case studied in this book affects the regulation of smoking and the marketing of tobacco products. Throughout this book, continuity is established with two of the historically most influential modes of constitutional reasoning: the constitutional theory of the French revolution, on the one hand, and the ancient tradition of linking different types of public power with the composition of the citizen's soul, on the other. The study is true and original — unclassifiable in its line and style of argument. It is at one and the same time an essay in the contemporary history of public culture and taste, a study of European Union competence, an exercise in pure normative political theory, and a study in constitutional method and culture with much comparative and historical material.Less
This new and innovative study explains that a transnational regime is based on a conception of citizenship that is different from the conception underlying a constitutional democracy. Citizens are deemed to be essentially separate from one another. They abandon larger society to itself and pursue their good in the private sphere. In lieu of trust and reliance in their own power to bring about change through common action, they hope to benefit from entrusting ‘problem-solving’ to international networks of expertise. Put bluntly, citizens of this kind exhibit a strong commitment to individualism. The book shows how individualism is reflected in the regulatory authority that the Union claims for itself, in particular as regards the regulation of the internal market. The paradigmatic case studied in this book affects the regulation of smoking and the marketing of tobacco products. Throughout this book, continuity is established with two of the historically most influential modes of constitutional reasoning: the constitutional theory of the French revolution, on the one hand, and the ancient tradition of linking different types of public power with the composition of the citizen's soul, on the other. The study is true and original — unclassifiable in its line and style of argument. It is at one and the same time an essay in the contemporary history of public culture and taste, a study of European Union competence, an exercise in pure normative political theory, and a study in constitutional method and culture with much comparative and historical material.
Lars Vinx
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199227952
- eISBN:
- 9780191711077
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199227952.003.0002
- Subject:
- Law, Philosophy of Law
This chapter discusses Kelsen's claim that the Pure Theory of Law is a purely descriptive science of law. This Kelsenian self-understanding turns out to be questionable. Key elements of Kelsen's ...
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This chapter discusses Kelsen's claim that the Pure Theory of Law is a purely descriptive science of law. This Kelsenian self-understanding turns out to be questionable. Key elements of Kelsen's legal science — such as the distinction between subjective and objective legal meaning, the theory of legal order as legal hierarchy, the conception of the basic norm, Kelsen's rejection of anarchism, and his way of drawing the distinction between law and morality — appear unmotivated unless they are understood as elements of an implicit normative political-theoretical project. That project is identified as the aim to develop a legality-based conception of political legitimacy for a pluralistic society and to realize that conception in a utopia of legality.Less
This chapter discusses Kelsen's claim that the Pure Theory of Law is a purely descriptive science of law. This Kelsenian self-understanding turns out to be questionable. Key elements of Kelsen's legal science — such as the distinction between subjective and objective legal meaning, the theory of legal order as legal hierarchy, the conception of the basic norm, Kelsen's rejection of anarchism, and his way of drawing the distinction between law and morality — appear unmotivated unless they are understood as elements of an implicit normative political-theoretical project. That project is identified as the aim to develop a legality-based conception of political legitimacy for a pluralistic society and to realize that conception in a utopia of legality.
Mark Greenberg
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546145
- eISBN:
- 9780191706462
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546145.003.0011
- Subject:
- Law, Philosophy of Law
This chapter offers a new argument against the legal positivist view that non-normative social facts can themselves determine the content of the law. It is argued that the nature of the determination ...
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This chapter offers a new argument against the legal positivist view that non-normative social facts can themselves determine the content of the law. It is argued that the nature of the determination relation in law is rational determination: the contribution of law-determining practices to the content of the law must be based on reasons. That is why it must be possible in principle to explain what makes the law have the content that it does. It follows that non-normative facts about statutes, judicial decisions, and other practices cannot themselves determine the content of the law. A full account must appeal to considerations independent of the practices that determine the relevance of the practices to the content of the law. Normative facts are the best candidates.Less
This chapter offers a new argument against the legal positivist view that non-normative social facts can themselves determine the content of the law. It is argued that the nature of the determination relation in law is rational determination: the contribution of law-determining practices to the content of the law must be based on reasons. That is why it must be possible in principle to explain what makes the law have the content that it does. It follows that non-normative facts about statutes, judicial decisions, and other practices cannot themselves determine the content of the law. A full account must appeal to considerations independent of the practices that determine the relevance of the practices to the content of the law. Normative facts are the best candidates.
MATTHEW H. KRAMER
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199264834
- eISBN:
- 9780191705229
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199264834.003.0007
- Subject:
- Law, Philosophy of Law
This chapter recapitulates some of the principal ideas developed in the preceding six chapters, with particular emphasis on the fact that legal positivists deny the existence of any significant ...
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This chapter recapitulates some of the principal ideas developed in the preceding six chapters, with particular emphasis on the fact that legal positivists deny the existence of any significant necessary connections between law and morality but do not deny the existence of numerous contingent connections between those two phenomena. It also lays the groundwork for Chapter 9 by emphasizing that the moral status of a legal system hinges crucially on its moral superiority or inferiority to other legal systems that are reasonably attainable.Less
This chapter recapitulates some of the principal ideas developed in the preceding six chapters, with particular emphasis on the fact that legal positivists deny the existence of any significant necessary connections between law and morality but do not deny the existence of numerous contingent connections between those two phenomena. It also lays the groundwork for Chapter 9 by emphasizing that the moral status of a legal system hinges crucially on its moral superiority or inferiority to other legal systems that are reasonably attainable.
Hans Kelsen
- Published in print:
- 1991
- Published Online:
- March 2012
- ISBN:
- 9780198252177
- eISBN:
- 9780191681363
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198252177.003.0035
- Subject:
- Law, Philosophy of Law
If a normative order contains not only norms which command a certain behaviour, but also norms which decree sanctions for the nonobservance of norms (as in a positive legal order) and even sanctions ...
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If a normative order contains not only norms which command a certain behaviour, but also norms which decree sanctions for the nonobservance of norms (as in a positive legal order) and even sanctions for the observance of norms (as in a positive moral order), then the norm which commands a certain behaviour and the norm which decrees a sanction for the non-observance or observance of the first norm form a unity. But this unity may not be expressed in the actual formulation of the norms. If it is assumed to be essential for law that a distinction be made between a norm commanding a certain behaviour and a norm prescribing a sanction for the violation of the first norm, then the former norm must be called the primary norm, and the latter the secondary norm — and not the other way around.Less
If a normative order contains not only norms which command a certain behaviour, but also norms which decree sanctions for the nonobservance of norms (as in a positive legal order) and even sanctions for the observance of norms (as in a positive moral order), then the norm which commands a certain behaviour and the norm which decrees a sanction for the non-observance or observance of the first norm form a unity. But this unity may not be expressed in the actual formulation of the norms. If it is assumed to be essential for law that a distinction be made between a norm commanding a certain behaviour and a norm prescribing a sanction for the violation of the first norm, then the former norm must be called the primary norm, and the latter the secondary norm — and not the other way around.
T.R.S. Allan
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199267880
- eISBN:
- 9780191707728
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199267880.003.0003
- Subject:
- Law, Constitutional and Administrative Law
The various formal requirements of an essentially procedural version of the rule of law derive their point and fundamental value from the broader ideal of constitutionalism to which, ideally, they ...
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The various formal requirements of an essentially procedural version of the rule of law derive their point and fundamental value from the broader ideal of constitutionalism to which, ideally, they belong. Lon Fuller's ‘inner morality’ of law — the model of law as a body of general, clear, stable, and prospective rules, capable of obedience, and faithfully applied by judges and other public officials — formed the core of a more elaborate conception of law as a bulwark or barrier against the exercise of arbitrary state power. This chapter further examines Fuller's concept and its connections with an associated view of the nature of legal obligation. It is that account of legal obligation — implicit in Fuller's work — that ultimately forges the link between law and justice that was central to his thought. A liberal interpretation of the ‘internal morality’ of law is presented, and the legal and moral aspects of obligation to obey the law are discussed along with a moral and constitutional conception of law. The intrinsic moral value of fair procedures is also considered.Less
The various formal requirements of an essentially procedural version of the rule of law derive their point and fundamental value from the broader ideal of constitutionalism to which, ideally, they belong. Lon Fuller's ‘inner morality’ of law — the model of law as a body of general, clear, stable, and prospective rules, capable of obedience, and faithfully applied by judges and other public officials — formed the core of a more elaborate conception of law as a bulwark or barrier against the exercise of arbitrary state power. This chapter further examines Fuller's concept and its connections with an associated view of the nature of legal obligation. It is that account of legal obligation — implicit in Fuller's work — that ultimately forges the link between law and justice that was central to his thought. A liberal interpretation of the ‘internal morality’ of law is presented, and the legal and moral aspects of obligation to obey the law are discussed along with a moral and constitutional conception of law. The intrinsic moral value of fair procedures is also considered.
Leslie Green and Brian Leiter (eds)
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199606443
- eISBN:
- 9780191729683
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199606443.001.0001
- Subject:
- Philosophy, Moral Philosophy
This work is an annual forum for some of the best new philosophical work on law, by both senior and junior scholars from around the world. The chapters range widely over issues in general ...
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This work is an annual forum for some of the best new philosophical work on law, by both senior and junior scholars from around the world. The chapters range widely over issues in general jurisprudence (the nature of law, adjudication, and legal reasoning), the philosophical foundations of specific areas of law (from criminal law to evidence to international law), the history of legal philosophy, and related philosophical topics that illuminate the problems of legal theory.Less
This work is an annual forum for some of the best new philosophical work on law, by both senior and junior scholars from around the world. The chapters range widely over issues in general jurisprudence (the nature of law, adjudication, and legal reasoning), the philosophical foundations of specific areas of law (from criminal law to evidence to international law), the history of legal philosophy, and related philosophical topics that illuminate the problems of legal theory.
T.R.S. ALLAN
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199267880
- eISBN:
- 9780191707728
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199267880.003.0002
- Subject:
- Law, Constitutional and Administrative Law
When the idea of the rule of law is interpreted as a principle of constitutionalism, it assumes a division of governmental powers or functions that inhibits the exercise of arbitrary state power. It ...
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When the idea of the rule of law is interpreted as a principle of constitutionalism, it assumes a division of governmental powers or functions that inhibits the exercise of arbitrary state power. It envisages a fundamental separation of powers between legislator or lawmaker, on the one hand, and those who ‘execute’ or administer the laws, on the other. The rule of law also assumes the generality of law: the individual's protection from arbitrary power consists in the fact that his personal dealings with the state are regulated by general rules, binding on private citizen and public official alike. This chapter discusses the rule of law and equal justice, legislative authorisation of executive power with emphasis on common law rights and public purposes, and procedural legality citing Lon Fuller's ‘internal morality’ of law.Less
When the idea of the rule of law is interpreted as a principle of constitutionalism, it assumes a division of governmental powers or functions that inhibits the exercise of arbitrary state power. It envisages a fundamental separation of powers between legislator or lawmaker, on the one hand, and those who ‘execute’ or administer the laws, on the other. The rule of law also assumes the generality of law: the individual's protection from arbitrary power consists in the fact that his personal dealings with the state are regulated by general rules, binding on private citizen and public official alike. This chapter discusses the rule of law and equal justice, legislative authorisation of executive power with emphasis on common law rights and public purposes, and procedural legality citing Lon Fuller's ‘internal morality’ of law.
H. L. A. Hart
- Published in print:
- 1983
- Published Online:
- March 2012
- ISBN:
- 9780198253884
- eISBN:
- 9780191681431
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198253884.003.0017
- Subject:
- Law, Philosophy of Law
This chapter discusses Lon L. Fuller's book The Morality of Law. This imaginative, original, and thought-provoking book is richly stocked with a variety of themes, many of which deserve a much fuller ...
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This chapter discusses Lon L. Fuller's book The Morality of Law. This imaginative, original, and thought-provoking book is richly stocked with a variety of themes, many of which deserve a much fuller treatment than this chapter accords to them. Its central theme is the unique virtue of conceiving of law and even of defining ‘law’ as ‘the [purposive] enterprise of subjecting human conduct to the governance of rules’. The morality of duty and the morality of aspiration, and the inner and external moralities of law are described. In this book, Fuller considers the appropriateness to different types of issue of different decision-procedures, among them adjudication and majority vote.Less
This chapter discusses Lon L. Fuller's book The Morality of Law. This imaginative, original, and thought-provoking book is richly stocked with a variety of themes, many of which deserve a much fuller treatment than this chapter accords to them. Its central theme is the unique virtue of conceiving of law and even of defining ‘law’ as ‘the [purposive] enterprise of subjecting human conduct to the governance of rules’. The morality of duty and the morality of aspiration, and the inner and external moralities of law are described. In this book, Fuller considers the appropriateness to different types of issue of different decision-procedures, among them adjudication and majority vote.
Mark Greenberg
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546145
- eISBN:
- 9780191706462
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546145.003.0012
- Subject:
- Law, Philosophy of Law
This chapter argues that the most influential version of legal positivism — that associated with H. L. A. Hart — fails. The argument's engine is a requirement that a constitutive account of legal ...
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This chapter argues that the most influential version of legal positivism — that associated with H. L. A. Hart — fails. The argument's engine is a requirement that a constitutive account of legal facts must meet. According to this rational-relation requirement, it is not enough for a constitutive account of legal facts to specify non-legal facts that modally determine the legal facts. The constitutive determinants of legal facts must provide reasons for the obtaining of the legal facts. The chapter shows that the Hartian account is unable to meet this requirement. That officials accept a rule of recognition does not by itself constitute a reason why the standards specified in that rule are part of the law of the community. It is argued that it is false that understanding the explanatory significance of officials' acceptance of a rule is part of our reflective understanding of the nature of law.Less
This chapter argues that the most influential version of legal positivism — that associated with H. L. A. Hart — fails. The argument's engine is a requirement that a constitutive account of legal facts must meet. According to this rational-relation requirement, it is not enough for a constitutive account of legal facts to specify non-legal facts that modally determine the legal facts. The constitutive determinants of legal facts must provide reasons for the obtaining of the legal facts. The chapter shows that the Hartian account is unable to meet this requirement. That officials accept a rule of recognition does not by itself constitute a reason why the standards specified in that rule are part of the law of the community. It is argued that it is false that understanding the explanatory significance of officials' acceptance of a rule is part of our reflective understanding of the nature of law.
David Copp
- Published in print:
- 2019
- Published Online:
- February 2019
- ISBN:
- 9780190640408
- eISBN:
- 9780190640439
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190640408.003.0003
- Subject:
- Law, Philosophy of Law
Legal Teleology seeks to embrace and to ground the most plausible tenets of both legal positivism and natural law theory. It is compatible with the positivist view that law consists at root in a ...
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Legal Teleology seeks to embrace and to ground the most plausible tenets of both legal positivism and natural law theory. It is compatible with the positivist view that law consists at root in a social practice of a certain kind. Yet it also can accommodate at least some claims about the relation between law and morality that are advocated by opponents of positivism. Most important, it argues that law is “robustly normative”—roughly, law is a source of genuine reasons. Standard forms of positivism cannot account for this thesis, but, arguably, the central doctrines of positivism are compatible with it. Legal Teleology is an account of the normativity of law that is supported by “pluralist-teleology,” a naturalist account of normativity that has been proposed elsewhere (Copp 2009). Legal Teleology sees the law as having a purpose, and it says that law is defective insofar as it does not further that purpose. It agrees that jurists can sometimes help law better to serve its purpose when they invoke moral principles in interpreting law. Legal Teleology represents a kind of intermarriage between legal positivism and natural law theory.Less
Legal Teleology seeks to embrace and to ground the most plausible tenets of both legal positivism and natural law theory. It is compatible with the positivist view that law consists at root in a social practice of a certain kind. Yet it also can accommodate at least some claims about the relation between law and morality that are advocated by opponents of positivism. Most important, it argues that law is “robustly normative”—roughly, law is a source of genuine reasons. Standard forms of positivism cannot account for this thesis, but, arguably, the central doctrines of positivism are compatible with it. Legal Teleology is an account of the normativity of law that is supported by “pluralist-teleology,” a naturalist account of normativity that has been proposed elsewhere (Copp 2009). Legal Teleology sees the law as having a purpose, and it says that law is defective insofar as it does not further that purpose. It agrees that jurists can sometimes help law better to serve its purpose when they invoke moral principles in interpreting law. Legal Teleology represents a kind of intermarriage between legal positivism and natural law theory.
Douglas Husak
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780190604684
- eISBN:
- 9780190604714
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780190604684.003.0002
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
This chapter contains three sections. In the first, I clarify the basic question to be addressed. I describe a number of key methodological assumptions I take for granted, even though I am aware they ...
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This chapter contains three sections. In the first, I clarify the basic question to be addressed. I describe a number of key methodological assumptions I take for granted, even though I am aware they are controversial. In the second, I explain the relationships between law and morality, and introduce and defend a defeasible presumption that the content of the criminal law should conform to that of critical morality. Finally, I describe a number of reasons that we should be especially skeptical of intuitions that indicate that defendants who are ignorant of law should not be excused.Less
This chapter contains three sections. In the first, I clarify the basic question to be addressed. I describe a number of key methodological assumptions I take for granted, even though I am aware they are controversial. In the second, I explain the relationships between law and morality, and introduce and defend a defeasible presumption that the content of the criminal law should conform to that of critical morality. Finally, I describe a number of reasons that we should be especially skeptical of intuitions that indicate that defendants who are ignorant of law should not be excused.
Kenneth M. Ehrenberg
- Published in print:
- 2016
- Published Online:
- May 2016
- ISBN:
- 9780199677474
- eISBN:
- 9780191758355
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199677474.003.0005
- Subject:
- Law, Philosophy of Law
Legal positivism generally views law as a genre of artifact. Hart’s de-emphasis on function is seen as a response to Fuller and Dworkin’s mistakes. The inclusive/exclusive debate is understood as ...
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Legal positivism generally views law as a genre of artifact. Hart’s de-emphasis on function is seen as a response to Fuller and Dworkin’s mistakes. The inclusive/exclusive debate is understood as being over the role of law’s function. Little practical difference between the two positions is seen except perhaps in treatment of individuals who deny the validity of certain laws generally in force, although the focus on law’s artifactual nature leans toward the exclusive position. Legal validity is seen as an aspect of law’s institutionality. A spectrum of the six jurisprudential positions is given based on their views about legal validity’s dependence on morality. Comparison is made between seeing the law as a genre of institutionalized artifact and as a species of social planning. It is argued that Searlean institutionality better explains the endurance of law than Scott Shapiro’s notion of plans, and that Shapiro’s notion of self-certification is ad hoc.Less
Legal positivism generally views law as a genre of artifact. Hart’s de-emphasis on function is seen as a response to Fuller and Dworkin’s mistakes. The inclusive/exclusive debate is understood as being over the role of law’s function. Little practical difference between the two positions is seen except perhaps in treatment of individuals who deny the validity of certain laws generally in force, although the focus on law’s artifactual nature leans toward the exclusive position. Legal validity is seen as an aspect of law’s institutionality. A spectrum of the six jurisprudential positions is given based on their views about legal validity’s dependence on morality. Comparison is made between seeing the law as a genre of institutionalized artifact and as a species of social planning. It is argued that Searlean institutionality better explains the endurance of law than Scott Shapiro’s notion of plans, and that Shapiro’s notion of self-certification is ad hoc.
Keith Hawkins
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199243891
- eISBN:
- 9780191714184
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199243891.003.0013
- Subject:
- Law, Constitutional and Administrative Law
This chapter reflects upon the character of legal control. Prosecution is a symbolic act, expressing conceptions of moral order, which carries meanings beyond any instrumental purpose to be served in ...
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This chapter reflects upon the character of legal control. Prosecution is a symbolic act, expressing conceptions of moral order, which carries meanings beyond any instrumental purpose to be served in reducing rule breaking. Prosecution decision-making is also heavily imprinted with its organizational provenance, and must be seen as an exercise in interpretation and translation in an organizational setting. The fact that regulatory bureaucracies are bodies operating on the public stage when they prosecute helps shape perceptions of the nature of regulatory violations and violators. Prosecution is also transformative: private troubles become public affairs, with private ordering by negotiation yielding to public law enforcement and adjudication. The pervasiveness of discretion is discussed, followed by an exploration of reflective and axiomatic decision-making. An analysis of the extent to which law can cope with risk, the pragmatism of law, and law as a moral enterprise concludes the book.Less
This chapter reflects upon the character of legal control. Prosecution is a symbolic act, expressing conceptions of moral order, which carries meanings beyond any instrumental purpose to be served in reducing rule breaking. Prosecution decision-making is also heavily imprinted with its organizational provenance, and must be seen as an exercise in interpretation and translation in an organizational setting. The fact that regulatory bureaucracies are bodies operating on the public stage when they prosecute helps shape perceptions of the nature of regulatory violations and violators. Prosecution is also transformative: private troubles become public affairs, with private ordering by negotiation yielding to public law enforcement and adjudication. The pervasiveness of discretion is discussed, followed by an exploration of reflective and axiomatic decision-making. An analysis of the extent to which law can cope with risk, the pragmatism of law, and law as a moral enterprise concludes the book.
Lawrence G. Sager
- Published in print:
- 2016
- Published Online:
- May 2016
- ISBN:
- 9780190466411
- eISBN:
- 9780190466442
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780190466411.003.0006
- Subject:
- Law, Legal History, Constitutional and Administrative Law
In Justice for Hedgehogs, Dworkin defends a one-system understanding of law. According to this view, law is morality…more exactly, law is a branch of political morality. I have a special interest in ...
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In Justice for Hedgehogs, Dworkin defends a one-system understanding of law. According to this view, law is morality…more exactly, law is a branch of political morality. I have a special interest in the claim, because Dworkin argues that one of its principal consequences is that it undermines arguments I have made about the valid legal status of precepts that are not properly enforceable by courts. In this chapter, I look critically at both Dworkin’s defense of the one system view and his claim that one can embrace the idea of judicially underenforced legal norms only by rejecting any moralized view of law and embracing positivism.Less
In Justice for Hedgehogs, Dworkin defends a one-system understanding of law. According to this view, law is morality…more exactly, law is a branch of political morality. I have a special interest in the claim, because Dworkin argues that one of its principal consequences is that it undermines arguments I have made about the valid legal status of precepts that are not properly enforceable by courts. In this chapter, I look critically at both Dworkin’s defense of the one system view and his claim that one can embrace the idea of judicially underenforced legal norms only by rejecting any moralized view of law and embracing positivism.
H. L. A. Hart
- Published in print:
- 1982
- Published Online:
- March 2012
- ISBN:
- 9780198254683
- eISBN:
- 9780191681509
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198254683.003.0011
- Subject:
- Law, Philosophy of Law
This chapter first examines critically Bentham's account of what a command is and the curious theory of assertion, indeed of meaning, on which his analysis in part rests. It then shows that though ...
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This chapter first examines critically Bentham's account of what a command is and the curious theory of assertion, indeed of meaning, on which his analysis in part rests. It then shows that though Bentham's account of what a command is is in various ways defective, he does touch on certain elements embedded in the notion of command out of which the idea of an authoritative legal reason may be illuminatingly constructed. Thirdly and lastly it raises the question whether it is possible to bring the notion of an authoritative legal reason into the analysis of the relevant legal phenomenon without surrendering the conceptual separation of law and morality.Less
This chapter first examines critically Bentham's account of what a command is and the curious theory of assertion, indeed of meaning, on which his analysis in part rests. It then shows that though Bentham's account of what a command is is in various ways defective, he does touch on certain elements embedded in the notion of command out of which the idea of an authoritative legal reason may be illuminatingly constructed. Thirdly and lastly it raises the question whether it is possible to bring the notion of an authoritative legal reason into the analysis of the relevant legal phenomenon without surrendering the conceptual separation of law and morality.
Cathleen Kaveny
- Published in print:
- 2017
- Published Online:
- October 2017
- ISBN:
- 9780190612290
- eISBN:
- 9780190612320
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190612290.003.0007
- Subject:
- Religion, Religion and Society
This chapter highlights the methodological contributions of Robert E. Rodes Jr. Writing at the intersection of law and theology, Rodes shows how conceptual tools used to distinguish between different ...
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This chapter highlights the methodological contributions of Robert E. Rodes Jr. Writing at the intersection of law and theology, Rodes shows how conceptual tools used to distinguish between different types of legal statements can shed light on knotty theological and ethical problems. He distinguishes among three functions of law: normative, constitutive, and epistemic. He also differentiates between two methods by which the law promotes moral values: didactic and instrumental. And he identifies two strategies for relating the church to the world: Erastian and High Church. By reframing conflicts like the one between religious liberty and same-sex marriage, Rodes offers legally-inspired strategies for diffusing the culture wars.Less
This chapter highlights the methodological contributions of Robert E. Rodes Jr. Writing at the intersection of law and theology, Rodes shows how conceptual tools used to distinguish between different types of legal statements can shed light on knotty theological and ethical problems. He distinguishes among three functions of law: normative, constitutive, and epistemic. He also differentiates between two methods by which the law promotes moral values: didactic and instrumental. And he identifies two strategies for relating the church to the world: Erastian and High Church. By reframing conflicts like the one between religious liberty and same-sex marriage, Rodes offers legally-inspired strategies for diffusing the culture wars.
Alex Silk
- Published in print:
- 2019
- Published Online:
- February 2019
- ISBN:
- 9780190640408
- eISBN:
- 9780190640439
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190640408.003.0013
- Subject:
- Law, Philosophy of Law
This chapter develops an account of the meaning and use of various types of legal claims, and uses this account to inform debates about the nature and normativity of law. The account draws on a ...
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This chapter develops an account of the meaning and use of various types of legal claims, and uses this account to inform debates about the nature and normativity of law. The account draws on a general framework for implementing a contextualist theory, called Discourse Contextualism (Silk 2015a, 2016, 2017). The aim of Discourse Contextualism is to derive the apparent normativity of claims of law from a particular contextualist interpretation of a standard semantics for modals, along with general principles of interpretation and conversation. Though the semantics is descriptivist, it avoids Dworkin’s influential criticism of so-called “semantic theories of law,” and elucidates the nature of “theoretical disagreements” about the criteria of legal validity. The account sheds light on the social, interpersonal function of normative uses of language in legal discourse. It also gives precise expression to Hart’s and Raz’s intuitive distinctions among types of legal claims (internal/external, committed/detached). The proposed semantics and pragmatics of legal claims provides a fruitful framework for further theorizing about the nature and metaphysics of law, the relation between law and morality, and the apparent practical character of legal language and judgment. Discourse Contextualism provides a solid linguistic basis for a broader account of legal discourse and practice.Less
This chapter develops an account of the meaning and use of various types of legal claims, and uses this account to inform debates about the nature and normativity of law. The account draws on a general framework for implementing a contextualist theory, called Discourse Contextualism (Silk 2015a, 2016, 2017). The aim of Discourse Contextualism is to derive the apparent normativity of claims of law from a particular contextualist interpretation of a standard semantics for modals, along with general principles of interpretation and conversation. Though the semantics is descriptivist, it avoids Dworkin’s influential criticism of so-called “semantic theories of law,” and elucidates the nature of “theoretical disagreements” about the criteria of legal validity. The account sheds light on the social, interpersonal function of normative uses of language in legal discourse. It also gives precise expression to Hart’s and Raz’s intuitive distinctions among types of legal claims (internal/external, committed/detached). The proposed semantics and pragmatics of legal claims provides a fruitful framework for further theorizing about the nature and metaphysics of law, the relation between law and morality, and the apparent practical character of legal language and judgment. Discourse Contextualism provides a solid linguistic basis for a broader account of legal discourse and practice.
