Brian Bix Research Articles

Families by Agreement: Navigating Choice, Tradition, and Law, Brian Bix

<i>Families by Agreement: Navigating Choice, Tradition, and Law</i>, Brian Bix

Introduction to Brian H. Bix, Svein Eng, and Giorgio Ridolfi on Alf Ross

Introduction to Brian H. Bix, Svein Eng, and Giorgio Ridolfi on Alf Ross

Autonomy for Contract, Refined

In ‘The Choice Theory of Contracts’, we advance a claim about the centrality of autonomy to contract. Since publishing Choice Theory, we have engaged dozens of reviews and responses; here, we reply to Robert Stevens, Arthur Ripstein, and Brian Bix. All this rigorous debate confirms for us one core point: contract’s ultimate value must be autonomy, properly understood and refined. Autonomy is the telos of contract and its grounding principle. In Choice Theory, we stressed the (1) proactive facilitation component of autonomy, in particular, the state’s obligation regarding contract types. Here, we highlight two additional, necessary implications of autonomy for contract: (2) regard for future selves and (3) relational justice. These three aspects of autonomy shape the range, limit, and floor, respectively, for the legitimate use of contract. They provide a principled and constrained path for law reform.

Book Review: Jurisprudence: Theory and context 8 ed by Brian Bix, London: Sweet &amp; Maxwell, 2019

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The Claim to Correctness, Rights, and the Ideal Dimension of Law: A Short Reply

AbstractThese are the answers I gave to Brian Bix, Peter Koller, Ralf Posher, Torben Spaak, Timothy Endicott, and Jan Sieckmann at the end of a splendid conference day in 2018. The critique given to me concerned important aspects of three main themes in my work: the claim to correctness, human and constitutional rights, and the ideal dimension of law. In the last decades I have attempted to connect these themes systematically. The result is the idea of democratic constitutionalism as an institutionalization of practical reason.

O sentido da(s) fórmula(s) de Radbruch: notas sobre uma controvérsia ainda atual

A(s) Fórmula(s) de Radbruch consiste(m) em importante marco para os desdobramentos da Teoria e da Filosofia do Direito a partir do Segundo Pós-Guerra. Seu alcance e sentido são objeto de acalentados debates pela literatura especializada, na qual se destacam as leituras de Robert Alexy e de Brian Bix. O primeiro sustenta que a(s) Fórmula(s) seria(m), ao mesmo tempo, proposição(ões) acerca do conceito de Direito e prescrição(ões) para a decisão judicial. O segundo, a(s) tem apenas como esta(s) última(s). Júlio Aguiar de Oliveira, após detida análise destas diferentes leituras, desbrava um terceiro caminho, no qual a(s) Fórmula(s) é(são) apenas proposição(ões) acerca do conteúdo do Direito. Defronte a este pano de fundo, o presente trabalho propõe uma recolocação dos termos do debate, a partir do escrutínio dos argumentos apresentados por cada autor, com ênfase às diferentes (e inconciliáveis) perspectivas de que partem. Sugere, ao final, que a consideração do contexto no qual veio a lume o texto continente da(s) Fórmula(s) corrobora a tese de Bix, no sentido de que ela(s) seria(m), ao menos primordialmente, prescrição(ões) à decisão judicial.

BRIAN BIX ON THE "OPEN TEXTURE" OF (LEGAL) LANGUAGE

The idea of the "open texture" of legal language was first introduced in Herbert Hart’s fundamental work "The Concept of Law", more than fifty years ago. Since then, this topic has not lost its relevance, but has been further developed, primarily in the Anglo-American legal philosophy. It is well known, that Hart borrowed this idea from his Oxford colleague Friedrich Waismann, who used the "open texture" as an argument against the phenomenalist position that material object statements can be reduced to the sense-datum statements. But it is not obvious that Hart and Waismann were talking about the same thing. It is worth noting how the "open texture" changed meaning in the borrowing. Hart applied it to the analysis of the concepts of legal language, while Waismann considered mainly the concepts of empirical language. Are there any similarities between these approaches, and what are the differences? Brian Bix, American legal philosopher, tried to elucidate this in his article "H.L.A. Hart and the "Open Texture" of Language", the Russian translation of which is published in this issue. He sets himself a very ambitious task: not only to present a detailed analysis of Hart’s views on the "open texture" of legal language, and to explore the intellectual roots of this idea, but to offer, in his opinion, a "correct understanding" of what Hart understood as "open texture". But did Bix succeed in this difficult task? There are well-founded doubts, the presentation and analysis of which are presented here. First of all, Bix’s interpretation of Waismann’s theory of "open texture" raises some questions, there are also questions to his presentation of Hart’s views. But despite this, Brian Bix did, indeed, detailed study of the genesis of the idea of "open texture", systematically and consistently described its main qualitative characteristics. Not a single researcher of a theory of "open texture" of legal language, except Bix, paid such close attention to the origins of this idea in the works of Waismann and Wittgenstein. And this is an undoubted advantage of his already canonical work on the study of "open texture" of legal language. The presented comments do not detract from the results obtained by Bix, but rather supplement them with new considerations.

Family Law Isolationism and 'Church, State, and Family'

The United Nations’ Convention on the Rights of the Child (“CRC”) turns 30 this year. Adopted by the UN and opened for signatures on November 20, 1989, the CRC met a warm embrace by the international community: within a year, 20 nations had ratified it and it entered into force in September 1990. When the United States signed the CRC in 1995, nearly all of the world’s nations had already ratified it. By the mid-2000s, a common refrain among academics and activists was that the United States was joined only by Somalia and South Sudan in failing to ratify the CRC. That changed in 2015 when Somalia and South Sudan ratified the CRC. Now, the United States stands alone. To understand the United States’ committed and deliberate family law isolationism, one need look no further than John Witte’s latest book, “Church, State, and Family,” and especially its chapter on “Why Suffer the Children? Overcoming the Modern Church’s Opposition to Children’s Rights.” The book charts the centrality of the marital family, even as the law allows couples to privatize their marital and intimate arrangements, as Brian Bix discusses at length in a companion reflection. Throughout, Professor Witte conveys the thick shield erected by states laws around the family, which have allowed the family to serve, in his words, as a “cradle of conscience, chrysalis of care, and cornerstone of ordered liberty.

El derecho y la injusticia extrema

Mi propósito en este ensayo consiste en reflexionar en torno al argumento de la injusticia extrema (Fórmula de Radbruch), enfocándome tanto en las teorías no-positivistas del derecho de Gustav Radbruch y Robert Alexy como en los argumentos positivistas de H. L. A. Hart y Brian Bix, para así proponer algunos argumentos para defender la corrección de la tesis que reconoce la Fórmula de Radbruch como un elemento del concepto del derecho, pero no como una prescripción para la decisión judicial.

Against Parochialism in Contract Theory: A Response to Brian Bix

In a recent article, Brian Bix has raised some important concerns about general and universal theories of contract law. Particularly, he has claimed that differences within doctrinal areas like contract law, and across different jurisdictions, undermine the plausibility of general and universal theories, which might end up being descriptively inaccurate, and even legitimizing unjust practices. This article is a partial response to Professor Bix’s insights, and argues why, despite his legitimate concerns, universal theories of contract law are plausible—and preferable over local theories.

A problem for the unambitious view of legal normativity

In this contribution, I discuss the so-called “unambitious view of legal normativity”, as it is specifically theorised by Brian Bix. While I agree with Bix that legal normativity should not be assumed to be reducible by default to moral normativity, I will argue that the normativity of law cannot be qualified as a sui generis form of normativity, for, pace Bix, the quality of legal normativity is best understood as genuine. That is, the normative claims the law makes on its subjects do address the general practical question: What ought we to do?

On legal things to do: external and internal legal reasons

The normativity of law is usually discussed by reference to the concept of reasons for action. Legal philosophers frequently avoid referring to the dispute among different conceptions of reasons in moral philosophy. This paper briefly presents basic positions in this dispute (distinguishing motivating and justificatory reasons, and the dispute between internalism, counterfactual internalism, and externalism). Brian Bix appears to adopt the internalist stance. The paper argues that internalism is not able to explain the normativity of law, since legal reasons are objective and external, as they do not depend on actual knowledge and motivation of the agent. A specific problem arises with respect to the rules of recognition. If the rule of recognition is a duty-imposing rule, the reasons for the official to follow this rule must be internal. It is argued that the rule of recognition is not a legal rule and the obligation to follow it is not a legal obligation.

Legal normativity as a moral property

This paper comments on Brian Bix’s article “Kelsen, Hart, and Legal Normativity”. It provides some remarks regarding the concept of normativity and subscribes to the idea that it should not be reduced to an empirical nor a moral property. The discussion is primarily focused on the current, post-Hartian thesis that reduces legal normativity to moral normativity. In this regard, on the one hand, it advances a criticism of Bix’s analysis, which at first glance rejects both forms of reductionism but, at the end of the day accepts a post-Hartian approach that treats normativity as a moral property. On the other hand, it highlights that this moralist concept of normativity is primarily based on the assumption that normative terms have a unified meaning in moral and legal contexts and that, according to that meaning, normativity is a moral property. The proposal is that within a positivist approach, it is necessary to discuss these assumptions in order to give an adequate account of legal normativity as an essential property of every legal system.

Kelsenian imputation and the explanation of legal norms

Brian Bix claims that the explanation of legal normativity does not require reference to any robust normative facts. I seek to vindicate his claim by engaging in a more fine-grained discussion of the explanation of legal facts as found in the work of Hans Kelsen, one of the authors discussed in Bix’s paper. The argument starts with a reconstruction of Kelsen’s account in a more contemporary philosophical vocabulary. Then, I draw a comparison with the well-known attempt, developed in Saul Kripke’s reading of Wittgenstein, to explain the normativity of meaning. Against the backdrop of the comparison, I diagnose a challenge arising for both meaning and law, which takes the form of an explanatory gap argument. Kelsen’s notion of imputation is proposed as an answer to the challenge, which is capable of bridging the relevant gap. Finally, I address some shortcomings Bix identifies as potential threats for Kelsen’s weak explanation of normativity.

The tigerish nature of legal normativity

This response to Brian Bix’s recent article on legal normativity considers the potential benefits of Bix’s approach in the light of contemporary debate upon the subject but argues for an alternative approach that focuses on the finding of legal normativity within a specific system of law and recognizes a normativity for those subject to that law whether they are well disposed to it or not. Three different ways in which a quality of normativity might be found for a legal provision concerning the conduct of a person are distinguished, so offering a richer and more illuminating analysis of the individual subject’s attitude or choice towards legal normativity. However, it is claimed that the overall picture advanced here supports a simple view of legal normativity, avoiding entanglement with moral controversies and complex theoretical speculations.

A challenge to Bix's interpretation of Kelsen and Hart's views on the normativity of law

Brian Bix discusses questions of legal normativity, arguing (1) that Hans Kelsen’s theory of the basic norm is best understood as saying that a person may choose to presuppose the basic norm in order to interpret the actions of legal officials normatively; (2) that H. L. A. Hart is best understood as espousing a sui generis view of legal normativity; and (3) that Hart’s view is preferable to the rather popular view that law makes some sort of moral claim. I accept (1) but think it is rather trivial. I find (2) plausible but the view itself problematic, and am therefore skeptical of (3).

A Problem for the Unambitious View of Legal Normativity

In this contribution, I discuss the so-called “unambitious view of legal normativity”, as it is specifically theorised by Brian Bix. While I agree with Bix that legal normativity should not be assumed to be reducible by default to moral normativity, I will argue that the normativity of law cannot be qualified as a sui generis form of normativity. For, pace Bix, the quality of legal normativity is best understood as genuine. That is, the normative claims the law makes on its subjects do address the general practical question: What ought we to do?

Brian Bix

Brian Bix

Introduction to Traditional and Modern Natural Law Theories

The ‘Law’ like language and culture is changing variable and its changes are reactionary to social, associational, economic and political changes. Due to its vividness and variable content, ‘Law’ remained as one of the difficult concepts to define, yet river of juristic ink has flowed in an endeavour to provide a universally acceptable definition of Law. In search of comprehensive answer to the questions relating to meaning, source, subject, aspect and force etc. of law, many jurists since time immemorial labouring hard, in different dimensions, these multidimensional efforts paved way to many theories. Such theories may be classified into (i) Natural, (ii) Analytical, (iii) Historical, (iv) Philosophical (v) Sociological and (vi) American realism. In this Module our focus will be on Natural Law theories.This paper is set out to serve three purposes (i) to make reader familiar with the meaning of natural law, (ii) to study (briefly) various theories on natural law starting from ancient Greek, so that reader can appreciate the shift of natural law from ‘dictate of God’ to dictate of ‘right reason’, and (iii) to appraise the revival of natural law in 19th and 20th century along with infusion of new dimensions by Brian Bix in the study of both natural law and legal positivism. Thus, first part of the module deal with meaning of natural law, second part deals with various theories, and the last part starts with revival of natural law and ends with Brian Bix’s views on natural law.

Brian Bix and Mexican Legal Philosophy: a Comment From the Perspective of the Sociology of Knowledge

My aim in this comment is to provide reasons that highlight the importance of the Spanish translation of Brian Bix’s book: “Jurisprudence, Theory and Context”. My comment stems from the sociology of knowledge and takes as a point of departure an empirical study about the state of the art of legal philosophy in Mexican Law Schools. My conclusion is that Brian Bix’s work shows how Mexican legal philosophy might be incorporated into current jurisprudential debate. Resumen: El objetivo de este comentario es proporcionar algunas razones a favor de la importancia de la publicación de la traducción al español del libro de Brian Bix “Jurisprudence, Theory and Context” para la actualización de la filosofía del derecho en México. Mi comentario es realizado desde la perspectiva de la sociología del conocimiento y tiene como punto de partida un estudio empírico sobre el estado del arte de la filosofía del derecho en las facultades de derecho del país. Mi conclusión es que el trabajo de Brian Bix responde la pregunta fundamental: ¿cómo incorporar a la filosofía del derecho mexicana al contexto global?, que estudiantes, profesores y jóvenes investigadores se plantean actualmente.