Necessary Features Of Law Research Articles

On the Nature of Necessary Truths in Jurisprudence: Putting Wittgensteinian Hinges to Use

Inquiring into the fundamental nature of law has been traditionally formulated as an attempt to answer the question, “What is Law?” Such an inquiry typically proceeds by identifying the necessary features of law. Joseph Raz, for example, writes: A theory consists of necessary truths, for only necessary truths about the law reveal the nature of the law. We talk of ‘the nature of law’, or the nature of anything else, to refer to those of the law’s characteristics which are of the essence of law, which make law into what it is. That is those properties without which the law would not be law.1

The Nature of Law and Potential Coercion

AbstractThis paper argues for a novel understanding of the relationship between law and coercion. It firstly refutes Kenneth Himma’s claim that the authorisation of coercive enforcement mechanisms is a conceptually necessary feature of law. It then claims that the best way to understand the law is as coercion‐apt. The “coercion‐aptness” of law is clarified, in part, by appealing to an essential distinction between law and morality: Whereas it can be reasonable for the law to appeal to coercive means in order to motivate compliance, it seems decidedly unreasonable for morality to do so.

Features of international law: A critical account of the prototype theory of international law

Prototype theory of international law formulated by Miodrag A. Jovanovic includes the following theses: (a) justice-delivery as a function of law; (b) institutionalization of adjudication as a fundamental feature of law; (c) coerciveness of law as guaranteeing enforcement; (d) outcasting as the predominant and sufficient means of enforcing international law. The paper analyses these elements, challenges theses (a), (c) and (d), and advances the thesis about (b) adjudication being not just a fundamental but also a necessary feature of law.

The Authorization of Coercive Enforcement Mechanisms as a Conceptually Necessary Feature of Law

In this essay, I argue that the authorization of coercive enforcement mechanisms is a conceptually necessary feature of law. I ground the argument in (1) the Hartian claim that the sense of “law” requiring explication picks out municipal legal systems in the modern state; (2) widely accepted Razian claims about how our legal practices construct the content of our legal concepts; (3) claims showing the ubiquity and centrality of coercive enforcement mechanisms in every paradigm instance of law we have ever known; and (4) logical difficulties arising in connection with explaining legal normativity in a system without such mechanisms. In the course of doing so, I respond to problematic society-of-angels thought experiments.

Czy systemowość jest konieczną właściwością prawa?

IS SYSTEMNESS A NECESSARY FEATURE OF LAW? This question is a metaphysical question, as it relates to the nature of law. The answer must be based on the conceptual analysis. The method of conceptual analysis applied by contemporary analytic theories of law may be interpreted as a „modest” conceptual analysis in the terminology of F. Jackson. The basis of such an analysis are platitudes about law, generally accepted in a given society and the purpose of analysis is the rational reconstruction of the folk theory of law. Using this method, the authors come to the conclusion that necessarily any rationally reconstructed folk theory of law must contain the claim that the law constitutes a system, at least in the weak sense of the word.

Can There Really Be Law in a Society of Angels?

Authorized coercive enforcement mechanisms is a feature of every existing institutional normative system we would characterize as a legal system. Indeed, it is so prominent in existing legal practice that it seems also to be a paradigmatic feature of law. Despite this, most contemporary theorists deny that authorized coercive enforcement mechanisms are a conceptually necessary feature of law. These doubts have been grounded in concerns about the conceptual status of international law, as well about whether law exists in a hypothetical society of angels who are motivated always to obey law without any need for authorized coercive enforcement mechanisms.In this essay, I consider whether this second concern – the “society of angels” example – succeeds in showing that such mechanisms are not a conceptual feature of law. I will argue, in essence, that the society-of-angels argument depends on assumptions about the psychological features of the “angels” that are simply too far removed from what is possible for us (i.e. human beings) in the conditions in which we live to tell us anything of theoretical significance about our legal concepts. Insofar as it our legal practices, which result from the problems to which our circumstances give rise, that, on Raz’s methodological view, construct the content of our legal concepts, the society-of-angels argument is simply not equipped to do the work it is contrived to do. Otherwise put, I argue that our concept of law explicates a normative institutional system that is distinctively human; as such, society-of-angels thought experiments tell us nothing about the proper content of a conceptual theory of law.

The Authorisation of Coercive Enforcement Mechanisms as a Conceptually Necessary Feature of Law

One of the most conspicuous features of law, as it works in the world of our experience, is that legal norms are characteristically backed by coercive enforcement mechanisms. Nevertheless, many legal philosophers specializing in conceptual jurisprudence believe that coercion is not a conceptually necessary feature of law. In this essay, I argue that the authorization of coercive enforcement mechanisms is a conceptually necessary feature of law. I ground the argument in (i) the Hartian claim that the sense of ‘law’ requiring explication picks out municipal legal systems in the modern state; (ii) widely accepted Razian claims about how our legal practices construct the content of our legal concepts; (iii) claims showing the centrality of coercive enforcement mechanisms in every paradigm instance of law we have ever known; and (iv) logical difficulties arising in connection with explaining legal normativity in a system without such mechanisms.

On the Nature of the Nature of Law

What is it for something to have a nature? And what is it for law to have a nature? Analysis of the concept of law has often been taken to be a search for the essential features of law, but it is not clear that the nature of a phenomenon or artifact is better explained by its essential features than by its common ones. And it is not clear that necessary truths have more explanatory value than typical truths. Especially -- but not necessarily – if we recognize the possibility that law is a cluster concept, the value of explaining the widespread but not strictly necessary features of law in explaining law itself becomes more apparent. The jurisprudential project of differentiating law from other social phenomena is an important one, but the distinction may be a fuzzy one and not susceptible either to sharp demarcation or to specification of essential features of law that will assist in differentiation. But if we inquire into what typically or usually or almost always characterizes law rather than what necessarily characterizes it, we may make genuine progress in distinguishing law from the social phenomena to which it is adjacent but with which it is not congruent.

The Demarcation Problem in Jurisprudence: A New Case for Scepticism

Legal philosophers have been preoccupied with specifying the differences between two systems of normative guidance that are omnipresent in all modern human societies: law and morality. Positivists propose a solution to this ‘Demarcation Problem’ according to which the legal validity of a norm cannot depend on its being morally valid, either in all or at least some possible legal systems. The proposed analysis purports to specify the essential and necessary features of law in virtue of which this is true. Yet, the concept of law is an ‘artefact concept’, that is, a concept that picks out a phenomenon that necessarily owes its existence to human activities intended to create it. Artefact concepts, even simple ones like ‘chair’, are notoriously resistant to analyses in terms of their essential attributes, precisely because they are hostages to human ends and purposes, and also cannot be individuated by their natural properties. Twentieth-century philosophy of science dealt with a kindred Demarcation Problem: how to demarcate epistemically reliable forms of inquiry from epistemically unreliable ones, that is, how to demarcate science from pseudo-science or nonsense. Like the legal philosophers, they sought to identify the essential properties of a human artefact (namely, science). They failed, and spectacularly so, which led some philosophers to wonder, ‘Why does solving the Demarcation Problem matter?’ This essay develops the lessons for legal philosophy from this episode and its philosophical aftermath, and concludes that, in order not to become embroiled in pointless Fullerian speculations about the effects of jurisprudential doctrines on behaviour, we should abandon the Demarcation Problem in jurisprudence.

On the Nature of the Nature of Law

What is it for something to have a nature? And what is it for law to have a nature? Analysis of the concept of law has often been taken to be a search for the essential features of law, but it is not clear that the nature of a phenomenon or artifact is better explained by its essential features than by its common ones. And it is not clear that necessary truths have more explanatory value than typical truths. Especially – but not necessarily – if we recognize the possibility that law is a cluster concept, the value of explaining the widespread but not strictly necessary features of law in explaining law itself becomes more apparent. The jurisprudential project of differentiating law from other social phenomena is an important one, but the distinction may be a fuzzy one and not susceptible either to sharp demarcation or to specification of essential features of law that will assist in differentiation. But if we inquire into what typically or usually or almost always characterizes law rather than what necessarily characterizes it, we may make genuine progress in distinguishing law from the social phenomena to which it is adjacent but with which it is not congruent. This paper, prepared for the McMaster University Conference in May, 2011, on “The Nature of Law: Contemporary Perspectives,” explores these issues.

The Demarcation Problem in Jurisprudence: A New Case for Skepticism

Legal philosophers have been preoccupied with specifying the differences between two systems of normative guidance that are omnipresent in all modern human societies: law and morality. Positivists such as Kelsen, Hart, and Raz propose a solution to this “Demarcation Problem” according to which the legal validity of a norm can not depend on its being morally valid, either in all or at least some possible legal systems. The proposed analysis purports to specify the essential and necessary features of law in virtue of which this is true. Yet the concept of law is an “artifact concept,” that is, a concept that picks out a phenomenon that owes its existence to human activities. Artifact concepts, even simple ones like “chair,” are notoriously resistant to analyses in terms of their essential attributes, precisely because they are hostage to human ends and purposes, and also can not be individuated by their natural properties. 20th-century philosophy of science dealt with a kindred Demarcation Problem: how to demarcate epistemically reliable forms of inquiry from epistemically unreliable ones, that is, how to demarcate science from pseudo-science or nonsense. Like the legal philosophers, they sought to identify the essential properties of a human artifact (namely, science). They failed, and spectacularly so, which led some philosopher to wonder, “Why does solving the Demarcation Problem matter?” This essay develops the lessons for legal philosophy from this episode and its philosophical aftermath, and concludes that, lest we want to become embroiled in pointless Fullerian speculations about the effects of jurisprudential doctrines on behavior, it is time to abandon the Demarcation Problem in jurisprudence.

Jurisprudence and Necessity

Much of the work in contemporary jurisprudence is done on the assumption that legal philosophy should find the set of necessary and sufficient conditions that something must have in order to count as law. This essay challenges this view. It examines in detail two versions of this view: the first is the view that jurisprudence should find the necessary features of law and then, from among them, those that are “important” for understanding law. I argue that these two features are in tension with each other, and that there are good reasons for thinking that an account that tries to discover the important features about law will not limit itself only to those features that all laws necessarily possess. The second version is one that tries to discover what necessarily belongs to “our” concept (or practice) of law by looking at those features that participants in the practice of law deem most important about it. I argue that this argument is indeterminate because it has no non-circular standard of defining what belongs to “our” concept of law. I then offer an alternative role for jurisprudence that focuses on trying to solve certain puzzles about law, such as explaining how a social practice can create binding norms. Answering questions of legal philosophy does not require finding what features all laws necessarily possess while maintaining a role for jurisprudence alongside other interdisciplinary approaches to law.

Two Schools of Legal Idealism: A Positivist Introduction*

Abstract. The author focuses his attention on two schools of legal idealism: the so-called Sheffield School and the “discourse ethics” school. In order to emphasize the valuable facets of each school, the author analyzes four different points: (1) the claim to correctness as a necessary feature of law, (2) the connection between correctness and validity, (3) the qualifying or classifying status of this connection, (4) and the desirability of adopting the “Radbruch’s Formula.” Finally, the author analyzes the weaknesses of each theory.**