Analytical Legal Philosophy Research Articles

Philosophical Foundations of the Legal Language

This paper analyzes the essence of the philosophical foundations of the legal language as it is used in certain theories in the legal philosophy. The purpose of the paper is to provide a full study of the legal language theory to determine its place in modern philosophical legal thought. The paper used methods of the history of philosophy, especially the method of rational reconstruction, and is based on the interpretation of the classical philosophical and legal texts (W. Waismann, J. L. Austin, H. Kelsen, H. Hart). The main result of the paper is the justification that the unity of logic and epistemology became the ground of application of the analytical method in the field of legal knowledge from the legal language point of view. The main conclusion of this paper is that the linguistic analysis of legal concepts for the justification of the legal decisions and their consequences expands the horizons of analytical legal philosophy and allows us to reveal the essence of legal reality in a new way. The paper was carried out within the framework of the Narikbayev KAZGUU University research project “Readability of Law”.

Проблема следования правилу Витгенштейна и философско-правовые исследования

The article presents an analysis of K.A. Rodin's argument that after publishing of Peter Winch's book “The Idea of Social Science” (1958) the discussions of rule-following problem concerning to social epistemology and the methodology of social studies have not had tangible results. It is shown by the example of modern legal studies that this conclusion is not valid. On the contrary, Wittgenstein's problem of rule-following and the very idea of rule-shaped activity have proved to have a great importance for an analytical legal philosophy and turned into an independent subject of study.

Systematicity, normativity, and The Nature of International Law

This essay offers some critical remarks on Miodrag Jovanovic’s ambitious attempt to deploy arguments developed within analytic legal philosophy to make sense of core features of the international legal order. First, I argue that Jovanovic endorses a common but mistaken reading of H.L.A. Hart’s analysis of international law. Properly understood, Hart’s take on international law is one Jovanovic shares. Second, I raise several objections to Jovanovic’s depiction of (international) law’s normativity, including both his account of what makes law legitimate and his description of the role legitimate law plays in its subjects’ practical reasoning.

Gender and the Analytical Jurisprudential Mind

Because gender norms shape the content and application of the law, feminist scholarship has a lot to contribute to the study of law. Gender is also relevant to several problems in normative jurisprudence, and to some problems in special jurisprudence (the study of concepts in the law). But gender has no relevance to general jurisprudence, for there is no sense in which the concept of law is ‘gendered’, and no answer to leading problems in general jurisprudence depends on any thesis about gender. Yet some scholars, including Joanne Conaghan, argue that gender is pervasively relevant to jurisprudence. She says its relevance has been screened out by three errors that characterize what she calls ‘the analytical jurisprudential mind’: a belief that legal concepts are unchanging, that description is value-neutral, and that empirical evidence is irrelevant to jurisprudence. I show that none of these charges can be sustained. By way of example, I show how analytical methods handle the relationship between sex and gender and the place of sex in the law of marriage. Hostility to analytical methods is likely to be damaging to feminist legal theory, and I urge feminist scholars in law to consider the now-plentiful resources in analytic legal philosophy that treat the topics of interest to them.

Propositions as (non-linguistic) objects and philosophy of law: Norms-as-propositions

The paper distinguishes two accounts of legal normativity. One-source accounts claim there is only one source for legal normativity, which is ultimately linguistic. Two-source accounts claim legal normativity is both linguistic and non-linguistic. Two-source accounts claim we need to go beyond language and beyond propositions taken as linguistic entities, while they are one-source accounts? main conceptual tool. Both accounts construct propositions as linguistic. There is, nevertheless, a documented analytic tradition starting with G.E. Moore that constructs propositions as non-linguistic entities. Today, the problem of the unity of proposition and structured propositions are highly debated in metaphysics. How does such debates fit into the one-source vs. two-source picture of legal normativity? Why has analytic legal philosophy failed to consider such an option concerning propositions (arguably calling descriptive sentences about norms ?normative propositions? did not help)? This paper thus (I) reconstructs the argumentative dynamics between one-source and two-source accounts; (II) presents the less considered philosophical view of propositions as non-linguistic entities and (III) discusses how to include or dismiss such a philosophical view in the one-source/two-source debate on legal normativity.

Wittgenstein’s Problem of Rule-Following and Legal Philosophy Studies

The article presents an analysis of K.A. Rodin’s argument that after publishing of Peter Winch’s book “The Idea of Social Science” (1958) the discussions of rule-following problem concerning to social epistemology and the methodology of social studies have not had tangible results. It is shown by the example of modern legal studies that this conclusion is not valid. On the contrary, Wittgenstein’s problem of rule-following and the very idea of rule-shaped activity have proved to have a great importance for an analytical legal philosophy and turned into an independent subject of study.

Herbert Hart’s Theory of Definition in the Context of Analytical Legal Philosophy

The article presents Herbert Hart’s theory of definition in the context of modern analytical legal philosophy. Dissatisfaction with the applicability of the traditional method of definition by the genus and differentia to the elucidation of legal concepts led Hart to the development a new method of definition. It is shown that Hart not only modifies the paraphrase of Jeremy Bentham, but also tries to adapt to the analysis of legal concepts the definition in use borrowed from analytical philosophers and logicians. It has been established that the key point of Hart’s method is that instead of defining a separate term, it is necessary to consider a statement, where the utterance plays a characteristic role, and is explained by specifying the conditions under which the entire statement is true. Some difficulties that arise when one uses this definition in the framework of the truth-conditional semantics are considered. In particular, it is shown that Hart uses open sentences of the form “X has a right” in its definition, which differ from closed sentences, primarily because they contain free variables with indefinite range of values. This uncertainty does not allow us to attribute to them the truth-value. The concepts of truth and falsity apply only to statements that are expressed by closed sentences. Thus, Hart’s claim of a special semantic nature of legal concepts and a special epistemological task of definitions in jurisprudence is reflected in his theory of the truth-conditional definition - a kind of contextual definition.

Free Will, Action and Responsibility: Philosophical and Legal Analysis

The paper provides an analysis of the main approaches to the interpretation of volitional actions in analytical legal philosophy, in the context of legal responsibility and discussions about free will. The most famous examples of the possibility of applying the neuroscience arguments in legal philosophy, in particular when assessing the effect of a volitional act performed consciously on human behavior, are considered. The paper argues that the philosophical argumentation in Gilbert Ryle's logical behaviorism can be used as a rational approach to refute neuroscience data and interpret actions correctly, in terms of legal language. In legal philosophy, the question of the applicability of legal responsibility for an offense committed by a subject is of fundamental importance. On the one hand, a state's use of coercion is aimed to support the regime of legitimacy and encourage lawful actions. However, the justifiability and adequacy of the sanctions and punishments applicable to the subjects of the offenses remain the topic of philosophical and legal discussions. To what extent may discoveries in neuroscience affect a final conclusion supported by arguments? Is there a real need to re-evaluate the degree of freedom of an individual in making a rational moral and legally significant choice of behavior? In the theory of legal responsibility, there are two traditional approaches to explaining the meaning of applying punishment to a person who has committed a crime or an offense. The first approach was called consequentialism, as its name suggests, the use of punishment for an offense results in the beneficial social consequences. When punishing the consequences, state intentions are aimed at preventing the illegal actions in the future and to facilitate the rehabilitation effect, which eliminates the consequences of the offense committed. The second approach , known as retributivism, is based on the need for adequate sanctions for the criminal act committed. The offender deserves a punishment, and its application sends a clear signal to society that punishment is inevitable, and it is a basic principle of the legal system.

The Institutionality Of Legal Validity

The most influential theory of law in current analytic legal philosophy is legal positivism, which generally understands law to be a kind of institution. The most influential theory of institutions in current analytic social philosophy is that of John Searle. One would hope that the two theories are compatible, and in many ways they certainly are. But one incompatibility that still needs ironing out involves the relation of the social rule that undergirds the validity of any legal system (H.L.A. Hart's rule of recognition) to Searle's notion of codification: the idea that institutions need official declarations of their constitutive rules in order to enjoy the full benefits of institutions. The incompatibility arises from the fact that, in order to do its institutional work, the basic validity rule must be codified in Searle's sense—yet, given the particular role it has in legal positivism, it may be impossible to codify in the Searlean sense. In this paper I develop the incompatibility in detail, consider and reject consigning the basic validity rule to Searle's “Background” capacities that support institutional facts, and conclude that the best route to eliminating it while doing a minimum of damage to the two theories is to make a slight emendation to Searle's theory of institutions.

The Protected Interest in ‘Atrocity Crimes’: From Individualized Humanity to Human Dignity

This paper deals with these concepts and their role in explaining the distinctive moral wrongness of mass crimes like ‘genocide’ and ‘crimes against humanity’. Since the Rome Statute entered into force in 2002, there has been an explosive increase in scholarly contributions, working in the field of analytical legal philosophy, around the question of the distinctive moral wrongness of genocide and crimes against humanity. Most scholars have approached the subject introducing a value or trait like ‘humanity’ or ‘dignity’ to play the role of the “legal interest”, or “good” that is harmed by the mass crime. This, in turn, morally justifies the crimes in question. The challenge, then, is to work out the content of these values or traits, namely, the content that can be recognized in the concepts of ‘humanity’ and ‘dignity’. The paper is divided into three parts: part I introduces the reader to the question of the moral legitimacy of criminal prohibitions, and makes the point that, because conceptual differences matter, finding the specific “value” or “interest” that supports the prohibitions of genocide and crimes against humanity is an important task for legal philosophy. Part II deals with the specialized literature on ‘humanity’ as a protected interest by the crimes, as part III turns to human dignity. In doing so, I ask whether ‘humanity’ can be replaced with ‘dignity’. While special attention will be devoted to Waldron’s theory of dignity as equal-high-rank, I will also consider more recent reconstructive proposals of the harm of mass crimes appealing to ‘humiliation’ and ‘degradation’.

Down The Methodological Rabbit Hole

This article surveys methodological matters that shape, drive, and plague analytic legal philosophy. Section 2 briefly explicates conceptual analysis, analytic definitions, and family resemblance concepts. It also argues that central cases are used in more than one way. Section 3 presents criticisms of those concepts and methods, and suggests that some of these difficulties are due to the lack of a shared paradigm regarding a counterexample’s impact. Section 4 explains “metatheoretical” desiderata. It contends that, to date, legal philosophical appeals to such norms have not been as helpful as some suggest. Section 5 returns to the issue of concept selection by addressing whether legal theorising is an invariably “normative” enterprise. It argues that certain “normativist” methodologies, such as Dworkin’s constructive interpretation and Finnis’ appeal to the central case of the internal point of view, are unnecessary.

Down the Methodological Rabbit Hole

This article surveys methodological matters that shape, drive, and plague Analytic Legal Philosophy. Section II briefly explicates conceptual analysis, analytic definitions, and family resemblance concepts. I also argue that central cases are used in more than one way. Section III then presents some (well- and lesser-known) criticisms of those concepts and methods, some of which are due to the lack of a shared paradigm regarding a counterexample’s impact. Section IV then briefly explains ‘meta-theoretical’ desiderata: norms by which to help construct, evaluate, and compare concepts and theories. I argue that, to date, legal philosophical appeals to such norms have not been as helpful as some suggest. Finally, Section V returns to the matter of concept selection by addressing whether legal theorising is an invariably ‘normative’ (in the sense of morally or politically evaluative) enterprise. I argue that certain ‘Normativist’ methodologies, such as Dworkin’s Constructive Interpretation and Finnis’ appeal to the central case of the internal point of view, are unnecessary.

Metafilosofía jurídica de los siglos XX y XXI: ¿un concepto analítico de derecho?

This paper aims to offer a metaphilosophical reconstruction of Law in the analytic tradition of the twentieth and twentieth-one century first fifteen years, in order to determine the identity of the “analytic concept of law”. To do that I will use three argumentative axes. The first will clarify the distinction between the Continental and Anglo-Saxon focuses on twentieth century analytical legal philosophy. The second axis will emphasize the methods and purposes of the latter, from the publication of Hart’s The Concept of Law’s first edition to its second edition in 1994. The third will problematize the existence or non-existence of an analytical concept of Law.

Интерпретация проблемы следования правилу в аналитической философии права

Интерпретация проблемы следования правилу в аналитической философии права

Analytical Legal Philosophy Reloaded

In this essay I argue a particular legal philosophy is committed to a partial and closed view of how philosophical work is conceived. This view produces a legal philosophy that lacks the ability to guide substantive discussions. I argue that methodological legal positivism is not a good way to articulate the development of legal philosophy. Then, I argue that we need to consider the place that legal philosophy should occupy in the global intellectual landscape. In addition, I develop my argument by distinguishing the work of legal-philosophy jurists from that of legal-philosophy philosophers and philosophy philosophers. As a coda, I sketch the criteria in order to conceive analytical legal philosophy from a new perspective.Resumen:En este ensayo defiendo que cierta forma de hacer filosofía jurídica está comprometida con una visión cerrada y parcial de concebir el quehacer filosófico. Esta visión genera una filosofía jurídica intelectualmente pobre y carente de capacidad para guiar debates sustantivos. Defiendo que el positivismo jurídico metodológico no es una buena manera de articular el desarrollo de la filosofía jurídica. Sostengo, además, que es preciso re- flexionar sobre el lugar que debería ocupar la filosofía jurídica en un panorama intelectual global. Para desarrollar mis argumentos, distingo el trabajo de los filósofos del derecho juristas respecto del de los filósofos del derecho-filósofos y los filósofos-filósofos. A modo de coda, bosquejo cuáles serían los criterios que hay que revisar para concebir la filosofía jurídica analítica desde una nueva perspectiva.

International Law: 'A Relatively Small and Unimportant' Part of Jurisprudence?

This paper evaluates and criticizes the account of international law given in Chapter Ten of H.L.A. Hart's book, The Concept of Law. Hart's account offers a few insights -- particularly on the relation between law and sanctions. But his account of international law is moistly quite impoverished. His observations about the absence of secondary rules (rules of change, adjudication, and recognition ) in international law are quite unjustified. His exaggeration of the difference between international law and municipal legal systems is so grotesquely exaggerated, as to deprive the former account of almost all its utility in jurisprudence. What is worse, his dismissive and misconceived account of international law has tended to drive practitioners of analytic legal philosophy away form addressing this important area of jurisprudence.

Out of the Witches’ Cauldron?: Reinterpreting the Context and Re-Assessing the Significance of the Hart-Fuller Debate

Just over half a century ago, Harvard Law School provided the setting for a debate between the two most influential British and American legal theorists. H.L.A. Hart, Professor of Jurisprudence at Oxford, was invited to give the Law School’s annual Holmes Lecture. Hart took this opportunity to enunciate the kernel of his emerging theory of legal positivism, staking out his claim to be the 20th Century successor to Jeremy Bentham and John Austin. Lon L. Fuller, Carter Professor of General Jurisprudence at Harvard, and a man who had long ploughed a rather lonely jurisprudential furrow as a scholar and teacher committed to exploring the morality of law, demanded a right to reply. The rest, as they say, is history. In this paper, I revisit that history, and give it a somewhat different interpretation from the one which it has generally received. My argument is that Fuller was at an inevitable disadvantage in the debate. Because of Hart’s agenda-setting position, the terms of the debate are those of analytic legal philosophy: and the reception of the debate has, understandably, both interpreted and evaluated Fuller’s argument largely in terms of criteria internal to that discipline. But while Hart’s Holmes lecture can justly be seen as exemplary of his broader contribution, Fuller’s most original interventions in legal scholarship originated not so much in a philosophical view but rather in a broader socio-legal and interdisciplinary interpretation of legal institutions and processes. Though Fuller might have drawn on this broader work to raise questions about Hart’s approach, he did not do so as effectively as he might have done. Hence the salience to Fuller’s reputation of his role as Hart’s natural law opponent marginalises some important strengths of his scholarship. I preface this argument with a historical and biographical sketch: introducing the protagonists and their intellectual and personal preoccupations; setting the scene for the debate in terms of contemporary legal scholarship and legal education; and providing a richer context in which to assess the debate’s overall significance for legal scholarship today.

Jurisprudence for Foxes

This paper contests Brian Simpson's claim that HLA Hart's book, The Concept of Law, is that of a 'hedgehog,' that is, a monistic thinker. It is not. Hart's work is pluralist both in its explanatory concepts and in its evaluative background. Some conjectures are offered as to why Simpson so misunderstood Hart, and as to why analytic legal philosophy is misunderstood, or distrusted, more generally.

Jurisprudence for Foxes

This paper contests Brian Simpson's claim that HLA Hart's book, The Concept of Law, is that of a 'hedgehog,' that is, a monistic thinker. It is not. Hart's work is pluralist both in its explanatory concepts and in its evaluative background. Some conjectures are offered as to why Simpson so misunderstood Hart, and as to why analytic legal philosophy is misunderstood, or distrusted, more generally.

Directives in EU Legal Systems: Whose Norms Are They Anyway?

AbstractThis article is concerned with whether the concept of a legal system—long a centrepiece of state‐based legal theories—is a useful conceptual tool in theorising the contemporary EU and its legal relations with its Member States. The focus lies particularly with EU directives, and with what the character and operation of this distinctive type of EU norm can tell us as regards the existence of and relations between legal systems in the EU. I argue for the view that the EU is comprised of distinct but interacting legal systems at EU and national level, and claim that the character and operation of directives supports this view. Throughout the discussion I try to bring the conceptual tools of analytical legal philosophy to bear on puzzles generated by EU law and its relations with national law, in order to show that a sound analysis of aspects of the EU can benefit from abstract legal philosophical reflection, and vice versa.