Dr Kenneth Ehrenberg

Research Interests

Dr Ehrenberg’s primary interests are in general jurisprudence -- especially jurisprudential methodology, legal ontology, legal authority & normativity, and legal validity – and the epistemology of evidence law.


Fall 2017
Jurisprudence I
Public Law I

Departmental Duties

Director of Research

Contact Me

Phone: 01483 68 6131

Find me on campus
Room: 11 AB 05


Journal articles

  • Ehrenberg K . (2016) 'Law as Plan and Artefact'. Taylor & Francis Jurisprudence, 7 (2), pp. 325-340.


    Scott Shapiro’s theory that law is a social plan is helpful in seeing law essentially as a tool of human creation and as such is sympathetic to understanding law in terms of the social functions it performs, a method I argue for elsewhere. I focus here on two problems with the theory as presented. The planning theory does not adequately explain the persistence of law beyond the utility of those who implement it. Generally, plans can cease to exist as soon as those engaged in them have no more use for them. Laws however, must usually be declared invalid or otherwise nullified for them to have no further effect. Shapiro’s use of self-certification to explain how law is differentiated from other forms of social planning is ad hoc and threatens circularity when he admits it to be a matter of degree. Both of these issues can be better solved by seeing law as an institutionalised abstract artefact, with a greater emphasis upon the nature of institutions doing much of the work done by the idea of planning.

  • Ehrenberg K . (2015) 'Less evidence, better knowledge.'. Faculty of Law of McGill University McGill Law Journal/Revue de droit de McGill, 60 (2), pp. 173-214.


    In his 1827 work Rationale of Judicial Evidence, Jeremy Bentham famously argued against exclusionary rules such as hearsay, preferring a policy of “universal admissibility” unless the declarant is easily available. Bentham’s claim that all relevant evidence should be considered with appropriate instructions to fact finders has been particularly influential among judges, culminating in the “principled approach” to hearsay in Canada articulated in R. v. Khelawon. Furthermore, many scholars attack Bentham’s argument only for ignoring the realities of juror bias, admitting universal admissibility would be the best policy for an ideal jury. This article uses the theory of epistemic contextualism to justify the exclusion of otherwise relevant evidence, and even reliable hearsay, on the basis of preventing shifts in the epistemic context. Epistemic contextualism holds that the justification standards of knowledge attributions change according to the contexts in which the attributions are made. Hearsay and other kinds of information the assessment of which rely upon fact finders’ more common epistemic capabilities push the epistemic context of the trial toward one of more relaxed epistemic standards. The exclusion of hearsay helps to maintain a relatively high standards context hitched to the standard of proof for the case and to prevent shifts that threaten to try defendants with inconsistent standards.

  • Ehrenberg K . (2014) 'Gardner, John. Law as a Leap of Faith. (Oxford: Oxford University Press, 2012. Pp. 314).'. University of Chicago Press Ethics, 124 (4)
  • Ehrenberg K . (2013) 'Functions in Jurisprudential Methodology'. Wiley Philosophy Compass, 8 (5), pp. 447-456.


    This paper guides the reader through the use of functions in contemporary legal philosophy: in developing those philosophies and through methodological debates over their proper role. This paper is broken into two sections. In the first I canvass the role of functions in the legal philosophies of several mid to late twentieth century Anglo-American general jurisprudents whose theories are still common topics of discussion: Ronald Dworkin, H.L.A. Hart, Lon L. Fuller, John Finnis, and Joseph Raz. In the second, I examine contemporary arguments over the role of functions in the methodology of legal philosophy.

  • Ehrenberg K . (2011) 'Critical Reception of Raz’s Theory of Authority'. Wiley Philosophy Compass, 6 (11), pp. 777-785.


    This is a canvass to the critical reaction to Joseph Raz’s service conception of authority, as well as actual or possible replies by Raz. Familiarity is assumed with the theory itself, covered in a previous article. The article focuses primarily on direct criticisms of Raz’s theory, rather than replies developed in the context of a theorist’s wider project.

  • Ehrenberg K . (2011) 'Law is not (best considered) an essentially contested concept'. Cambridge University Press International Journal of Law in Context, 7 (2), pp. 209-232.


    I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria offered for essential contestation. I buttress this claim with the explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it would yield a greater understanding of uses of the concept to which it is applied. I then show that, even if law meets some basic criteria of essential contestation, applying the appellation does not helpfully illuminate the most general concept of law and therefore it should not be used, while allowing that it might be more useful for the related concept of the rule of law.

  • Ehrenberg K . (2011) 'The Anarchist Official: A Problem for Legal Positivism'. Australian Society of Legal Philosophy Australian Journal of Legal Philosophy, 36, pp. 89-113.


    Many legal theorists have expounded conceptions of law or legal systems that depend heavily upon a key role to be played by legal officials. In most cases, it is not just the actions, but the beliefs of those legal officials that make the difference between a legal system and simple control by coercion. In H.L.A. Hart’s positivist theory, legal officials create legal facts by accepting legal rules (especially a central validity rule) from an internal point of view. Since these legal facts are social facts, their dependence upon the acceptance of legal officials makes it possible for ordinary citizens to have legal obligations without those citizens ever accepting that they do..

  • Ehrenberg K . (2011) 'Joseph Raz’s Theory of Authority'. Wiley Philosophy Compass, 6 (12), pp. 884-894.


    Joseph Raz’s theory of authority has become influential among moral, political, and legal philosophers. This article will provide an overview and accessible explanation of the theory, guiding those coming to it for the first time as to its theoretical ambitions within the wider issues of authority, and through its intricacies. I first situate the theory among philosophical examinations of authority, and then explain the theory itself in detail.

  • Ehrenberg K . (2009) 'Defending the Possibility of a Neutral Functional Theory of Law'. Oxford University Press Oxford Journal of Legal Studies, 29 (1), pp. 91-113.


    I argue that there is methodological space for a functional explanation of the nature of law that does not commit the theorist to a view about the value of that function for society, nor whether law is the best means of accomplishing it. A functional explanation will nonetheless provide a conceptual framework for a better understanding of the nature of law. First I examine the proper role for function in a theory of law and then argue for the possibility of a neutral functional theory, addressing issues raised by Leslie Green, Stephen Perry, Michael Moore and John Finnis.

  • Ehrenberg K . (2008) 'Archimedean Metaethics Defended'. Metaphilosophy LLC and Blackwell Publishing Ltd Metaphilosophy, 39 (4-5), pp. 508-529.


    We sometimes say our moral claims are ‘‘objectively true,’’ or are ‘‘right, even if nobody believes it.’’ These additional claims are often taken to be staking out metaethical positions, representative of a certain kind of theorizing about morality that ‘‘steps outside’’ the practice in order to comment on its status. Ronald Dworkin has argued that skepticism about these claims so understood is not tenable because it is impossible to step outside such practices. I show that externally skeptical metaethical theory can withstand his attacks, thereby defending the possibility of this kind of metatheoretical method and showing that the additional objectivity claims still make sense as external claims. Four interpretations of the additional objectivity claims can still be understood externally: as secondary properties, as arguing for some form of causal correspondence, as explaining error, and under Blackburn’s expressivism. In the end, Dworkin’s argument can be turned against itself.

  • Ehrenberg K . (2007) 'The Ideal and Non-Ideal in Behavior Guidance: Reflections on Law and Buddhism in Conversation with the Dalai Lama'. FACULTY OF LAW AND JURISPRUDENCE, STATE UNIVERSITY Buffalo Law Review, 55, pp. 675-679.
  • Ehrenberg K . (2003) 'Procedural justice and information in conflict-resolving institutions'. Albany Law School Albany Law Review, 67 (1), pp. 167-209.
  • Ehrenberg K . (1999) 'Social structure and responsibility'. Loyola University School of Law Loyola Poverty Law Journal, 5 (Spring)


  • Ehrenberg K . (2016) The Functions of Law. First Edition. Oxford University Press


    What is the nature of law and what is the best way to discover it? This book argues that law is best understood in terms of the social functions it performs wherever it is found in human society. In order to support this claim, law is explained as a kind of institution and as a kind of artefact. To say that it is an institution is to say that it is designed for creating and conferring special statuses to people so as to alter their rights and responsibilities toward each other. To say that it is an artefact is to say that it is a tool of human creation that is designed to signal its usability to people who interact with it. This picture of law's nature is marshalled to critique theories of law that see it mainly as a product of reason or morality, understanding those theories via their conceptions of law's function. It is also used to argue against those legal positivists who see law's functions as relatively minor aspects of its nature. This method of conceptualizing law's nature helps us to explain how the law, understood as social facts, can make normative demands upon us. It also recommends a methodology for understanding law that combines elements of conceptual analysis with empirical research for uncovering the purposes to which diverse peoples put their legal activities.

Book chapters

  • Ehrenberg K . (2016) 'Ontology and Reason Giving in Law'. in Gizbert-Studnicki T, Dyrda A, Banas P (eds.) Metaphilosophy of Law First Edition. Hart Publishing , pp. 147-158.


    John Gardner has noted that legal positivism is more a theory of legal validity than it is a theory about law ’ s nature. 1 This is true in that one can be a legal positivist and hold a variety of different theories about law ’ s nature, but not to the extent that ‘ anything goes ’ ontologically speaking. Rather, it seems fairly diffi cult to be a legal positivist and not say that the law is a kind of social fact. That being said, however, there are a variety of ways of creating social facts so there is some room for disagreement when it comes to the nature of law within the wide umbrella of legal positivism. If our focus is legal validity, then we may not have too much reason to wade into these deeper metaphysical waters. However, I believe that legal positivism has a challenge that is not (as) present in other theories of law: the problem of explaining law ’ s normativity. I contend that one of the best hopes for meeting this challenge is to be found in getting more clarity about what it is that yields these special social facts, although I remain open to the possibility that the challenge can also be met in other ways. Let us fi rst get a bit more clarity on the challenge itself, then we will see how settling the metaphysical questions about law can help to meet the challenge, and then I can suggest how my preferred answer to the metaphysical questions meets the challenge...

  • Ehrenberg K . (2015) 'Law’s artifactual nature: how legal institutions generate normativity'. in Pavlakos G, Rodriguez-Blanco V (eds.) Reasons and Intentions in Law and Practical Agency Cambridge University Press , pp. 247-266.
  • Ehrenberg K . (2013) 'Law’s Authority is not a Claim to Preemption'. in Waluchow W, Sciaraffa S (eds.) Philosophical Foundations of the Nature of Law Oxford University Press


    In recent years we have witnessed major developments in philosophical inquiry concerning the nature of law and, with the continuing development of international and transnational legal institutions, in the phenomenon of law itself. This volume gathers leading writers in the field to take stock of current debates on the nature of law and the aims and methods of legal philosophy. The volume covers four broad themes. The essays within the first theme address and develop the traditional debates between legal positivism, natural law theory, and Dworkinian interpretivism. Papers within the second theme focus on the power of coercion, often overlooked in contemporary legal philosophy. The third set of papers addresses the aims and methods of legal theory, and the role of conceptual analysis. The final section explores new methods and issues in the subject, and offers fresh starting points for future work in the field. Gathering many leading and up-and-coming writers in the subject, the volume offers a snapshot of the best current work in general jurisprudence.

  • Ehrenberg K . (2013) 'Pattern Languages and Institutional Facts: Functions and Coherences in the Law'. in Araszkiewicz M, Šavelka J (eds.) Coherence: Insights from Philosophy, Jurisprudence and Artificial Intelligence First Edition. Springer Dordrecht Heidelberg


    This book is a thorough treatise concerned with coherence and its significance in legal reasoning. The individual chapters present the topic from the general philosophical perspective, the perspective of legal-theory as well as the viewpoint of cognitive sciences and the research on artificial intelligence and law. As it has turned out the interchange of knowledge among these disciplines is very fruitful for each of them, providing mutual inspiration and increasing understanding of a given topic. This book is a unique resource for anyone interested in the concept of coherence and the role it plays in reasoning. As this book captures important contemporary issues concerning the ongoing discussion on coherence and law, those interested in legal reasoning should find it particularly helpful. By presenting such a broad scope of views and methods on approaching the issue of coherence we hope to promote the general interest in the topic as well as the academic research that centers around coherence and law.

  • Ehrenberg K, Terravecchia G. (2010) '‘La pretesa di prevenire: una discussion della teoria di Raz sull’ontologia legale’ [The Claim of Pre-Emption: A Discussion of Raz’s Theory of Legal Ontology]'. in Allegra A (ed.) Confronti con la filosofia analitica University of Padua Press , pp. 183-194.
  • Ehrenberg K . (2008) 'Philosophy of Law (in Chinese, ZhaoYun Pan trans.)'. in Yu J, Zhang Z (eds.) Philosophy China Renmin University Press , pp. 296-322.
  • Ehrenberg K . (2008) 'House v Tritter: On the Clash of Theoretical and Practical Authority'. in Jacoby H (ed.) House and Philosophy First Edition. John Wiley & Sons , pp. 174-186.

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