Contemporary Legal Philosophy Research Articles

Jurisprudential Theories and First-Order Legal Judgments

The nature of the relation between jurisprudential theories and first-order legal judgments is a strangely uncontroversial matter in contemporary legal philosophy. There is one dominant conception of the relation according to which jurisprudential theories are second-order or meta-legal theories that specify the ultimate grounds of first-order legal judgments. According to this conception, difficult first-order legal disputes are to be resolved by jurisprudential theorizing. According to an alternative conception that Ronald Dworkin has influentially advocated, jurisprudential theories are not second-order theories about the nature of law, but instead covert first-order legal theories. These two conceptions of the relation between jurisprudential theories and first-order legal judgments dominate the contemporary legal philosophical scene and crowd out other possible conceptions. This article scrutinizes the two conceptions, and in the process raises the possibility of a different and perhaps more credible conception. According to this new conception, our first-order legal views and a jurisprudential theory that we accept are supposed to form a mutually disciplining and supporting set of views that we accept in our pursuit of the epistemic ideal of wide reflective equilibrium. The two sets of views are supposed to constrain and discipline each other; but neither is meant to underwrite, certify, or wholly determine the contents of the other. This new conception, which allows the relation between jurisprudential theories and first-order legal judgments to be much looser, untidier, and more complex than what the two dominant conceptions require, should facilitate progress in legal philosophy and in first-order legal thinking.

Normative Weighing and Legal Guidance of Conduct

Contemporary legal philosophers commonly understand the normative force of law in terms of practical reason. They sharply disagree, however, on how exactly it translates into practical reason. Notably, some have argued that the directives of an authority that meets certain prerequisites of legitimacy generate reasons for action that exclude some otherwise applicable reasons, while others have insisted that such directives can only give rise to reasons that compete with opposing ones in terms of their weight (an approach I will call the weighing model). Does the weighing model provide a normative framework within which law could adequately facilitate correct decision-making? At first glance, the answer appears to be ‘yes’: there seems to be nothing about law-following values—such as coordination reasons, the desirability of social order, deferential expertise, etc.—which prevents them from being factored into our decision-making in terms of normative weight that tips the balance in favor of compliance with law inasmuch as it is worthwhile to comply with it. This impression, however, turns out to be incorrect when, drawing on a body of empirical work in psychology, I observe that many of the practical difficulties law typically addresses are difficulties that have part of their root in biases to which we are systematically susceptible in the settings of our daily activity. I argue that the frequent presence of those biases in contexts of activity which law regulates, and the pivotal role law has in counteracting them, emphatically militate against the weighing model and call for its rejection.

Federal world government: The road to peace and justice?

Within contemporary legal and political philosophy there is nothing more unpopular than defending a world state. It seems food for thought for writers like Huxley or Wells, but not a topic that deserves serious philosophical reflection. Fortunately, there are exceptions to this general rule. Theorists such as Höffe, Cabrera, Deudney and Yunker defend a version of a multilayered minimal world state – a model based on the dual principles of federalism and subsidiarity. The focus of this article is on the very fragile balance that proponents of this model have to keep between a simultaneous need for centralization and decentralization. On the basis of a critical analysis of the work of these theorists, it is argued in this article that the safeguards these authors defend to prevent a bloating of government themselves contain a tendency to hierarchical centralization. While some form of world state might be necessary to cope with the challenges posed by globalization, it is essential to discuss the shape and competences of the world state much more critically and in more detail than has been the case in the past.

The Golden Standard of Concepts with Necessary Conditions and the Concept of Law

In this paper I argue against the thesis defended by Michael Giudice, who claims that it is possible to provide a concept of law by determining the necessary conditions of its essence. My main thesis is: 1) that this goal can exclusively be reached with certain kind of concepts: those satisfying what I propose to call:“Golden Standard of Concepts with Necessary Conditions” and 2) that the concept of “Law” is not such a concept. Therefore I defendmethodological pluralism in opposition to methodological monism embraced by some contemporary legal philosophers. Resumen: En este artículo contiendo la tesis defendida por Michael Giudice en la cual sostiene que es posible elaborar un concepto de derecho mediante la determinación de las propiedades necesarias de su esencia. Mis tesis principales son: 1) que sólo para cierto tipo de conceptos puede alcanzarse ese objetivo y 2) que el concepto de “Derecho” no es uno de ellos. Defiendo un pluralismo metodológico contra el monismo metodológico suscrito por algunos filósofos del derecho contemporáneos.

On Naturalizing Jurisprudence: Some Comments on Brian Leiter’s View of What Jurisprudence Should Become

In a series of powerful and challenging articles emerging since the mid-1990s, Brian Leiter has argued that certain theoretical strains in contemporary legal philosophy are ‘epistemologically bankrupt’, in virtue of their reliance on misguided argumentative devices: analysing concepts, such as the concepts of law and of authority; and doing so by appealing to intuitions regarding the correct way to understand the concepts in question. In response to this state of affairs, Leiter advocates that jurisprudence ought to attempt to catch-up with ‘naturalistic’ developments which have influenced the direction of other branches of philosophy – such as epistemology, philosophy of mind, and moral philosophy – in the last few decades. This article offers a critical analysis of some of Leiter’s proposals for what Jurisprudence should become, in light of his views on the relevance of naturalism for this discipline.

Social Normativity for Legal Philosophers

Understanding the nature of social normativity is important for contemporary analytical legal philosophy. For one, such an account may help articulate the form of the social conventions that are said to be at the foundations of the rule of recognition. This paper argues that accounts of the nature of social normativity ought not to be based on the idea that social life is governed or regulated by norms. Rather, accounts of social normativity ought to be centred on the notion of how persons learn (and unlearn) what they come to anticipate. The first part of the paper offers some illustrations of such an account. The second part of the paper shows how social normativity so conceived can avoid some of the problems that bedevil the currently dominant view (or assumption) that social life is regulated or governed by norms. These problems include, first, difficulties associated with how much deliberative reflection and awareness to demand from participants in social life (accounts of social normativity are often said to be unrealistic or hyper-committal for demanding too much of both, which is not a criticism that can be made of the account offered here); and second, difficulties caused by assuming or positing that there can be a fact of the matter, unmediated by the evaluation or judgement of persons, as to whether or not some action is correct or incorrect on the basis that it merely conforms (or not, as the case may be) to some norm or set of norms (which is not an assumption made or a position endorsed by the account offered here). The paper does not aim to provide a comprehensive statement of the alternative view of social normativity. Rather, it seeks merely to introduce it and to suggest some of the ways in which it improves on the currently dominant view.

La teoría general de la forma de Robert Summers (A propósito de Robert S. Summers, Form and Function in a Legal Sytem. A general Study)

El propósito de este trabajo es introducir y analizar la teoría general de la forma, del profesor R. SUMMERS. Basándose en el concepto de forma (que el autor define como «ordenación sistemática y tendiente a un fin»), SUMMERS presenta una teoría ambiciosa de gran importancia epistemológica. Propone una nueva manera de contemplar el sistema jurídico, la perspectiva de la forma, al tiempo que subraya las insuficiencias de la perspectiva de la regla que caracteriza el pensamiento de iusfilósofos tan importantes como H. KELSEN o H. HART. Así, en el análisis de SUMMERS, las reglas no constituyen el elemento central, como es el caso en el positivismo jurídico tradicional, sino un tipo de unidad jurídica entre otras. Este artículo analiza tanto la dimensión estructural (anatómica) como funcional (fisiológica) de esta nueva teoría. Además, la sitúa dentro del marco de la filosofía jurídica contemporánea, en la que está llamada a ocupar una posición relevante.

Free-Floating from Reality

Matthew Kramer has recently proposed a distinction between norms that are free-floating and those that are not. The distinction, he argued, enables us to distinguish between norms that can be incorporated into the law and those that cannot. In this essay I argue that his distinction is based on several theoretical errors, and that even if it were successful, it is unclear why his distinction is relevant for the question of the boundaries between law and morality. I also provide many examples from actual legal systems of legal norms that do not correspond to Kramer’s distinction. I conclude the essay by suggesting that Kramer’s argument exemplifies a prevalent problem in contemporary legal philosophy, in which much work is often based on simplistic models of law and uses them to develop ‘conceptual’ arguments for what closer attention to the facts shows are empirical questions. As a result many current jurisprudential debates are not helpful for understanding legal phenomena. Recognizing this point is important for reorienting legal philosophy towards other questions which would be more helpful for illuminating its subject-matter.

The Boundaries of Law and the Purpose of Legal Philosophy

Much contemporary analytic legal philosophy is concerned with trying to try and identify clearly the boundaries between law and non-law. In this essay I argue that this exercise is frought with theoretical difficulties. I then argue that even if it my earlier arguments are mistaken, there is little reason to think that we will gain much understanding about the law by engaging these intellectual endeavors.

Free-Floating from Reality

The paper considers Matthew Kramer's notion of free-floating norms as a way of defending inclusive legal positivism. I argue first that there are numerous counterexamples to Kramer's approach. I then go on to argue that Kramer's approach represents a prevalent, yet mistaken, approach in contemporary legal philosophy of trying to answer empirical questions by conceptual arguments. I conclude that this approach should be abandoned.

THE DUTY TO GOVERN

Contemporary legal philosophers have focussed their attention on two aspects of the general theory of authority: the issue of legitimacy (or the right to govern) and the issue of obligation (or the duty to obey). In John Finnis's work we have a powerful statement of the importance of a third issue: the problem of governance (or the duty to govern). This paper explores the nature of this duty, its foundations, and its relation to the other aspects of a theory of authority.

Dworkin's Theory of Law

AbstractRonald Dworkin is one of the most important, and one of the most controversial, contemporary legal philosophers. This article elucidates the main aspects of Dworkin's theory of law, discussing both his key criticisms of legal positivism and his own positive views about law. The article also briefly examines some of the major controversies surrounding Dworkin's theory of law, such as the debates arising out of his right answer thesis and semantic sting argument.

Contemporary Legal Philosophy in Germany

This article gives a concise overview on developments in German legal philosophy since 1990. After briefly sketching the previous streams, dating back to 1945, it focuses on current tendencies and topics. Three main debates are reported in detail, namely the debates on the structure of legal argumentation, on the structure of the legal system, and on Radbruch's Formula. This includes, inter alia, Robert Alexy's new theory of balancing as well as the debate on the role of logic in legal reasoning. Overall, the article introduces the main protagonists and schools as well as their respective advantages, drawbacks, and challenges

Law and Legal Politics: Vilhelm Lundstedt and the Law-Maker Function

The relationship between law and politics is one of the most common subjects of discussion and debate within contemporary legal philosophy and theory. One of the most frequent tasks of legal philosophers and theoreticians, particularly after the birth of the nation state and its transformation into a modern welfare state, has been to explain the interrelationship of legal and political phenomena, as well as the points of their mutual exclusion. Vilhelm Lundstedt's theory as to the law-maker function within the legal system can be viewed as bridging the theoretical gulf between law and politics, i.e. as trying to give birth to a scientific approach to the politics of law.

Just Traditions? Deconstruction, Critical Legal Studies, and Analytic Jurisprudence

At the time of its presentation, Derrida's 'Force of law' represented deconstruction's perhaps most direct statement on the possibility of justice and its most explicit engagement with law. The ensuing responses to that paper have typically focused on deconstruction's position regarding the force and authority of law, and especially on what is taken as Derrida's theory of justice. As such, 'Force of law' is often discussed in isolation to mainstream legal philosophy or is otherwise understood to represent a radical counter to that tradition. It is possible to take a different direction, however, by considering the event of that paper's presentation and reception in relation not only to the existing disciplines of legal studies, but also to the problematic of discipline itself. Re-reading some of the work of contemporary legal philosophy in the light of that problematic may thus enable a certain questioning of the disciplinary divisions whose very institution underscores the 'radical' nature of deconstruction's 'critique' of traditional understandings of law. Such a re-reading may even allow a speculation upon a certain (trans)disciplinarity of deconstruction, reconsidering the latter's relation to traditions.

Postema on Law's Autonomy and Public Practical Reasons: A Critical Comment

Postema's article discusses, lucidly and probingly, a central jurisprudential idea, which he calls the autonomy thesis. In its general form it is shared by many writers who otherwise support divergent accounts of the nature of law. It is, according to Postema, a thesis that is meant to account for a core idea, that the law's “defining aim is to … unify public political judgment and coordinate social interaction.” In some form or another this core idea is probably supported by Postema himself. However, in this article his concern is to criticize what he takes to be the widespread belief that it is explained by the autonomy thesis. The autonomy thesis is flawed and must be rejected. In arguing to that conclusion he succumbs to one of the unattractive tendencies of contemporary legal and political philosophy, namely he does not discuss anyone's view, but a family of views. This allows one to construct one's target by selecting features from a variety of authors so that the combined picture is in fact no one's view, and all those cited as adhering to it would disagree with it.

The Paradox of Equity

Martha Nussbaum's recent article “Equity and Mercy” eloquently advocates the continued relevance of a tradition of ethical and legal thought—the “equity tradition”—that has been neglected by legal philosophers in recent times. That neglect is partly due to the fact that contemporary legal philosophy (as in the debate between H.L.A. Hart and Ronald Dworkin) has concerned itself with the prior question of whether judges should or need to exercise discretion. The equity tradition presupposes an affirmative answer to that question where the rigorous application of a law yields a sufficiently grave injustice in the circumstances of a particular case or where such an injustice would arise because of a “gap” in the law. Yet it might have been thought prudent for those who assert the ineradicability and value of adjudicative discretion to have embraced and developed the idea of equity.

The Published Writings of H. L. A. Hart: A Bibliography*

Ratio JurisVolume 8, Issue 3 p. 397-406 The Published Writings of H. L. A. Hart: A Bibliography* STANLEY L. PAULSON, STANLEY L. PAULSONSearch for more papers by this author STANLEY L. PAULSON, STANLEY L. PAULSONSearch for more papers by this author First published: December 1995 https://doi.org/10.1111/j.1467-9337.1995.tb00222.xCitations: 1 † *A very special word of thanks to Peggy McDermott and Bonnie Litschewski Paulson (St Louis). My thanks, too, to Enrique Bocardo (Seville), Antonis Chanos and Martin Schulte (Dresden), Riccardo Guastini (Genoa), Jenifer Hart and Joseph Raz (Oxford), Elizabeth Miller and Ethel M. Paulson (St Paul), Bernard D. Reams, Jr (Queens, New York), Joachim Schwietzke (Heidelberg), and Johannes Strangas (Athens). Finally, I should like to acknowledge the wealth of material assistance afforded by the earlier Hart bibliographies, appearing in Law, Morality, and Society. Essays in Honour of H. L. A. Hart, ed. P. M. S. Hacker L J. Raz (Oxford Clarendon Press, 1977), and in Issues in Contemporary Legal Philosophy. The Influence of H. L. A. Hart, ed. Ruth Gavison (Oxford: Clarendon Press, 1987). AboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Citing Literature Volume8, Issue3December 1995Pages 397-406 RelatedInformation

Raz on Liberal Rights and Common Goods

Much of contemporary political and legal philosophy can be seen as a reaction against utilitarianism. The works of Rawls, Dworkin, and Nozick are, in one way or another, dominated by the aim of developing a political theory to replace utilitarianism. Theories of rights figure prominently in this development. Rights have been portrayed as having the function to put limits on the pursuit of the general welfare or collective interest. This function, as Ronald Dworkin puts it, presupposes 'an antagonism between appeals to rights and appeals to the general welfare'.1 It might be thought that this kind of modern rights-talk has swung the pendulum from one end to another: while being sensitive to the utilitarian bias towards the collectivity, the rights-talk over-emphasizes the extent to which individual interest is antagonistic to the general interest of society. Joseph Raz is one such philosopher holding this view. He challenges the popular understanding that the special role of rights is to represent the individual interest against the general good or claims of others generally.2 The theory of rights he proposes can be seen as an attempt to avoid both the alleged utilitarian error and the one-sidedness of the modern rights-talk. For Raz, a right is neither an instrument to maximize aggregate happiness nor a trump card over the collective interest. This is particularly true in the case of liberal rights. A liberal right at once protects both the right-holder's interest as well as the interests of others.

Changing the Mindset: The Place of Theory in English Administrative Law

When English administrative law is accused of being atheoretical, many read this as a reverse compliment. The pragmatic quality of the common law, rooted (in the famous phrase') in experience rather than logic, is a matter for selfcongratulation. The emphasis on the practical is what has maintained the flexibility of the common law and provided its capacity for incremental change, enabling it to keep in touch with the men and women on the Brussels shuttleservice. As Neil MacCormick, exploring the role of contemporary legal philosophy, once put it, bus-driving is what bus-drivers do, conveyancing is what lawyers do and both 'will do it regardless of any philosophical fuss'.' Theorizing, on the other hand, is what philosophers do and they are welcome to get on with it. How could philosophy be of use to a bus-driver? And would anyone wish to board a bus driven by a philosopher? It is hard to say whether this scepticism is, as some think, an essential component of the dominant tradition of legal positivism,3 or simply an example of English anti-intellectualism. Lord Reid, another Scot, once encapsulated the English attitude to law in the aphorism that 'An ounce of fact is worth a ton of theory'.4 This acknowledged anti-theoretical bias in the common law mind-set is nicely conveyed by the prestigious Hamlyn Lectures, a truly Diceyan series endowed for the glorification of the English