Dennis Patterson

Professor Dennis Patterson


Professor of Legal Philosophy
+44 (0)1483 684223
13 AB 05

Biography

Biography

Dennis Patterson is a leading scholar in the field of Law and Neuroscience. He is the author or editor of four books in this emerging subfield of legal philosophy. He is the author of Law and Truth (OUP) and the editor of the Oxford Introductions to US Law. He is also an expert in global trade law.

His book The New Global Trading Order (CUP) features a wide-ranging account of the evolution of global trade. He has received grants and fellowships from the American Council of Learned Societies, The Humboldt Stiftung and three Fulbrights. He is a member of the editorial board of the leading journals in legal philosophy.

From 2009 - 2017, he held the Chair in Legal Theory and Legal Philosophy at the European University Institute in Florence.

My publications

Publications

Dennis Patterson (2018)Theoretical Disagreement, Legal Positivism and Interpretation, In: Ratio Juris31(3)pp. 260-275 Wiley

Ronald Dworkin famously argued that legal positivism is a defective account of law because it has no account of Theoretical Disagreement. In this article I argue that legal positivism—as advanced by H.L.A. Hart—does not need an account of Theoretical Disagreement. Legal positivism does, however, need a plausible account of interpretation in law. I provide such an account in this article.

A Afilalo, Dennis Patterson (2018)Global Economic Constitutionalism and the Future of Global Trade, In: University of Pennsylvania Journal of International law University of Pennsylvania
DENNIS PATTERSON (2012)Alexy on Necessity in Law and Morals, In: Ratio Juris25(1)pp. 47-58 Blackwell

Robert Alexy has built his original theory of law upon pervasive claims for “necessary” features of law. In this article, I show that Alexy's claims suffer from two difficulties. First, Alexy is never clear about what he means by “necessity.” Second, Alexy writes as if there have been no challenges to claims of conceptual necessity. There have been such challenges and Alexy needs to answer them if his project is to succeed.

Michael S. Pardo, Dennis Patterson (2010)More on the Conceptual and the Empirical: Misunderstandings, Clarifications, and Replies, In: Neuroethics4(3)pp. 215-222 Springer Netherlands

At the invitation of the Editors, we wrote an article (entitled, “Minds, Brains, and Norms”) detailing our views on a variety of claims by those arguing for the explanatory power of neuroscience in matters of law and ethics. The Editors invited comments on our article from four distinguished academics (Walter Glannon, Carl Craver, Sarah Robins, and Thomas Nadelhoffer) and invited our reply to their critique of our views. In this reply to our commentators, we correct some potential misunderstandings of our views and further clarify our positions with discussions of the conceptual-empirical distinction, rule-following, explanations at the personal and subpersonal levels, memory, and lie detection. Although we acknowledge many of the criticisms advanced by our distinguished colleagues, we conclude that, in several important respects, their criticisms confirm the points made in our original article.

Dennis Patterson (2016)Criminal law, neuroscience, and voluntary acts, In: Journal of Law and the Biosciences3(2)pp. 355-358 Oxford University Press
Dennis Patterson (2011)Methodology and Theoretical Disagreement, In: European Legal Method: Paradoxes and Revitalisationpp. 227-241 DJOF Publishing

Methodology matters. The ways in which it makes a difference are varied but, in law, methodology cannot be separated from one of the most fundamental questions: how do we decide what the law is? In this paper, I want to look at the problem of methodology from the point of view of philosophical questions about the nature of law and how we decide what the law is on any given question. To that end, I shall consider the problem of “theoretical disagreement.” This topic is among the most contested in contemporary analytic jurisprudence. I believe that debate can tell us something about methodology, not only its importance but the importance of keeping the right perspective on the role of methodology in legal reasoning.

Michael S. Pardo, Dennis Patterson (2010)Minds, Brains, and Norms, In: Neuroethics4(3)pp. 179-190 Springer Netherlands

Arguments for the importance of neuroscience reach across many disciplines. Advocates of neuroscience have made wide-ranging claims for neuroscience in the realms of ethics, value, and law. In law, for example, many scholars have argued for an increased role for neuroscientific evidence in the assessment of criminal responsibility. In this article, we take up claims for the explanatory role of neuroscience in matters of morals and law. Drawing on our previous work together, we assess the cogency of neuroscientific explanations of three issues that arise in these domains: rule-following, interpretation, and knowledge. We critique these explanations and in general challenge claims as to the efficacy of the neuroscientific accounts.

Michael S. Pardo, Dennis Patterson (2016)The Promise of Neuroscience for Law: 'Overclaiming' in Jurisprudence, Morality, and Economics, In: Philosophical Foundations of Law and Neuroscience. Oxford University Press

Claims for the relevance and importance of neuroscience for law are stronger than ever. Notwithstanding persuasive arguments that illustrate a wide degree of 'over­claiming' in the literature, new claims alleging the importance of neuroscience for law are common.1 This chapter discusses three examples of overclaiming how devel­opments in neuroscience can contribute to issues in legal theory. The first example fo­cuses on general jurisprudential theories about the nature of law and legal reasoning. We evaluate arguments concerning how neuroscientific evidence will contribute im­portant insights for jurisprudential debates. The second and third examples concern moral and economic decision making, respectively. We evaluate several arguments about how neuroscientific evidence will illuminate decision making in these domains and how these insights ought to be applied to issues in law and public policy.

Dennis Patterson (2016)Transnational Lawmaking, In: Research Handbook on the Theory and Practice of International Lawmaking Edward Elgar Publishing Ltd
Dennis Patterson (2016)Rethinking Duress, In: Jurisprudence7(3)pp. 672-677 Taylor & Francis

John Hyman makes a good case for the proposition that duress defeases what would otherwise be a voluntary act. In this article, I consider Hyman's arguments in the context of economic duress and conclude that while Hyman makes an excellent case for the proposition that duress vitiates voluntariness, there may be cases where the law might not want to allow the defence of duress.

Dennis Patterson (2016)Can We Please Stop Doing This? By the Way, Postema Was Right, In: Metaphilosophy of Law Hart Publishing

While legal philosophy has its own unique set of questions and problems, one activity it shares with many other areas of philosophy is the urge to find the essence of 'law'. Whether expressed as 'essence', 'necessary and sufficient' or 'nature', the enterprise is finding the features of law that set it apart from other normative phenomena. Many philosophers have abandoned the search for the essential features of many things. The conventional wisdom now seems to be (roughly) that the world divides into natural kinds and other (social or artefactual) kinds. Legal philosophers have not given up the search for the essence of law. In this way, they are rather different from philosophers in many other areas of the discipline. In this chapter, I will consider three attempts to identify the essence or nature of law. I will argue that each attempt fails for different reasons. If these attempts to identify the essence of law fail, what are we to make of these failures? Are they simply three different failed attempts or do they indicate something more? I will then consider Gerald Postema's effort to point to a different way of thinking about law and what legal philosophers ought to be doing when we do jurisprudence. Postema's work is a model of how to do legal theory: it is methodologically sophisticated and it solves problems not otherwise amenable to resolution.

Dennis Patterson (2016)Theoretical Disagreement and Interpretation, In: Diritto e questioni pubbliche16(1)pp. 201-2019 Dipartimento di Giurisprudenza - Università di Palermo

Interpretation is a fundamental feature of legal practice. Yet, we have no complete account of interpretation in law despite the fact that interpretation has received a great deal of attention in the scholarly literature. This essay proposes a theory of interpretation for law. It presupposes and relies on Hart’s account of the nature of law and some of the fundamental concepts in his account of law.

Dennis Patterson, Anna Södersten (2016)The Nature of International Law, In: A Companion to European Union Law and International Lawpp. 16-25 Wiley-Blackwell
Michael S. Pardo, Dennis Patterson (2017)Neuroscience, Normativity, and Retributivism, In: The Future of Punishment Oxford University Press

We examine two recent challenges to retribution-based justifications for criminal punishment based on neuroscientific evidence. The first seeks to undermine retributivism because of the brain activity of subjects engaged in punishment decisions for retributive (as opposed to consequentialist) reasons. This challenge proceeds by linking retributivism with deontological moral theories and the brain activity correlated with deontological moral judgments. The second challenge seeks to undermine retributivism by exposing, through neuroscientific information, the purportedly implausible foundation on which retributivism depends: one based on free will and folk psychology. We conclude that neither challenge succeeds. The first challenge fails, in part, because the brain activity of punishers does not provide the appropriate criteria for whether judgments regarding criminal punishment are justified or correct. Moreover, retributivism does not necessarily depend on the success or failure of any particular moral theory. The second challenge fails because neuroscience does not undermine the conceptions of free will or folk psychology on which retributivism depends. Along the way, we point out a number of faulty inferences and problematic assumptions and presuppositions involved in these challenges to retributivism.

Hans Micklitz, Dennis Patterson, Jan Wouters (2013)From the Nation State to the Market: The Evolution of EU Private Law as Regulation of the Economy beyond the Boundaries of the Union?, In: The EU's Role in Global Governance: The Legal Dimension Oxford University Press

This chapter demonstrates how the European Union, being understood as a market state, affects the private legal orders of the Member States and the design of the emerging European private legal order; first within the EU (the inner space of EU Statecraft) and second in the relations of the EU to the outside world (the outer space of European Statecraft or global governance). The national private legal orders may be equated with the pre-modern state nation and later the nation state of the twentieth century, whereas the emerging European private law may be equated with the EU market state. In the inner space of the internal market, the EU is smoothly but steadily building a genuine private law that must be kept distinct from nation state codifications. In the outer space the EU market state — and the Member States nation states — are engaged in using private law as a means to influence global governance processes. The chapter begins by clarifying the notion and concept of the market state in its relation to the EU. It then sketches out the concept of European private law as economic law within the EU and outside the EU. Finally it looks into the role of the EU market state in global governance through private law means.

Dennis Patterson (2012)Kovesi and Legal Reasoning, In: Meaning and Morality: Essays on the Philosophy of Julius Kovesipp. 139-142 Brill

Julius Kovesi's accomplishment in Moral Notions is without limit. Kovesi has the more powerful account of conceptuality. Hart would have benefited greatly from Kovesi's distinction between formal and material elements. It provides precisely the correct antidote to debates that never lift themselves out of sparring about particular features of diverse objects. If this is not progress, then to know what is. Kovesi's accomplishment was in giving us a complete and utterly convincing account of what we mean when we say 'these two things are the same'. No one in legal theory has provided a better account of this form of reasoning.

Ari Afilalo, Dennis Patterson, Kai P. Purnhagen (2017)Statecraft, the Market State and the Development of European Legal Culture, In: Towards a European Legal Culturepp. 277-302 Nomos/Hart

We consider whether the theory of the market-state can explain the features of a common European legal culture. Our thesis is that there is an extant EU legal culture, one which developed through the Europeanisation of law. The distinct European feature of this legal culture is the enforcement of market-state features in EU law. The concept of legal culture needs to be untied from a communitarian view by which culture “provides this group with its identity by establishing internal coherence and external difference, as well as relative consistency over time”. Culture hence needs to be viewed through a decentralized lens. As a nation-state heritage, EU law has developed a legal culture which does not follow purely market-state rationales, but rather balances these rationales against nation-state features such as human rights.

Dennis Patterson (2017)Legal dimensions of neural antecedents to voluntary action, In: Cognitive Neuroscience5(3-4)pp. 216-217 Taylor & Francis

This article considers the arguments of Nachev and Hacker in the context of claims that Libet’s experiments regarding the readiness potential pose challenges for the criminal law, specifically for the distinction between voluntary and involuntary acts.

Alexis Galan, Dennis Patterson (2017)The limits of normative legal pluralism: Review of Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law beyond Borders, In: International Journal of Constitutional Law11(3)pp. 783-800 Oxford University Press
Dennis Patterson (2015)The dark future of constitutionalism, In: Constitutional Commentary30(3)pp. 667-687 University of Minnesota Law School

Book review: The Cosmopolitan Constitution. By Alexander Somek. 2014. Oxford: Oxford University Press

Michael S. Pardo, Dennis Patterson (2010)Philosophical Foundations of Law and Neuroscience, In: University of Illinois Law Reviewpp. 1211-1250

According to a wide variety of scholars, scientists, and policymakers, neuroscience promises to transform law. Many neurolegalists—those championing the power of neuroscience for law—proceed from problematic premises regarding the relationship of mind to brain. In this Article, Professors Pardo and Patterson make the case that neurolegalists’ accounts of the nature of mind are implausible and that their conclusions are overblown. Thus, neurolegalists’ claims of the power of neuroscience for law cannot be sustained. The authors discuss a wide array of examples, including lie detection, criminal law doctrine, economic decision making, moral decision making, and jurisprudence.

Dennis Patterson (2017)Cosmopolitanism and Human Rights
Dennis Patterson (2014)A Paradox About Meaning, In: Reality and Culture: Essays on the Philosophy of Bernard Harrison(270)pp. 181-184 Rodolphi
Dennis Patterson (2010)Postmodernism, In: A Companion to Philosophy of Law and Legal Theorypp. 381-391 Wiley-Blackwell
Anna Sodersten (2016)A Companion to European Union Law and International Law Wiley-Blackwell
Ari Afilalo, Dennis Patterson (2017)Statecraft and the Foundations of European Union Law1, In: Philosophical Foundations of European Union Lawpp. 275-303 Oxford University Press

This chapter discusses the political and social philosophy of the European Union. It argues that constitutional orders are determined by historical factors encapsulated in the idea of “statecraft.” It therefore places the European Union into a moment of transition from the “nation state” to the “market state.” Events such as the increased harmonization of economic policies, the Single European Act, the European Monetary Union, the creation of European citizenship, and the Schengen arrangements suggest the transition from a nation-state to a “market-state” constitutional order. The argument moves from internal challenges to external ones and shows how the nature of the state is shaped by its international relations and choices. Ultimately, the European Union is viewed as a unique experiment, but also something that teaches us important lessons about statecraft in general.

Michael S. Pardo, Dennis Patterson (2017)Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience Oxford University Press
Dennis Patterson (2011)Philosophy of Law Andrei Marmor, Philosophy of Law, Princeton University Press, 2011. [Book review], In: Notre Dame Philosophical Reviews University of Notre Dame
Dennis Patterson (2017)Global Economic Constitutionalism
Dennis Patterson (2017)Neuroscience in the Courtroom
Michael S. Pardo, Dennis Patterson (2014)Morse, Mind, and Mental Causation, In: Criminal Law and Philosophy11(1)pp. 111-126 Springer

Stephen Morse’s illuminating scholarship on law and neuroscience relies on a “folk psychological” account of human behavior in order to defend the law’s foundations for ascribing legal responsibility. The heart of Morse’s account is the notion of “mental state causation,” in which mental states (e.g., beliefs, desires, and intentions) cause behavior. Morse argues that causation of this sort is necessary to support legal responsibility. We challenge this claim. First, we discuss problems with the conception of mental causation on which Morse appears to rely. Second, we present an alternative account to explain the link between mental states, reasons, and actions (the “rational–teleological” account). We argue that the alternative account avoids the conceptual problems that arise for Morse’s conception of mental causation and that it also undergirds ascriptions of legal responsibility. If the alternative succeeds, then Morse’s conception of “mental state causation” is not necessary to support legal responsibility.

Dennis Patterson, Michael S. Pardo (2014)Philosophy, Neuroscience and Law: The Conceptual and Empirical, Rule-Following, Interpretation and Knowledge, In: Problems of Normativity, Rules and Rule-Following(111)pp. 177-188 Springer, Cham

The intersection between law and neuroscience is one of the most-discussed subfields in legal scholarship. In this article, we consider fundamental issues in the field. These include: the distinction between the conceptual and the empirical, rule-following, and the nature of knowledge. We maintain that the conceptual issues are fundamental to all aspects of this enterprise.

Michael Pardo, Dennis Patterson, Sofia Moratti (2014)The gathering of and use of neuroscientific evidence in criminal trials in the United States. Compatibility with the 4th and 5th Amendements and with Due Process, In: Rivista di filosofia del diritto, Journal of Legal PhilosophySpeciapp. 41-70 Il Mulino

This essay discusses the compelled production and use of neuroscientific evidence against criminal suspects or defendants and the constitutional provisions that protect suspects and defendants and limit government evidence gathering in the American legal system: the Fourth Amendment, the Fifth Amendment privilege against self-incrimination, and Due Process. We shall argue that, under current constitutional doctrine, a neuroscientific test could in principle be compelled, either through a threat of contempt or through physical force, under the following conditions: 1) the government has probable cause and a warrant, or a recognized exception to these requirements obtains, and 2) the government conduct is not so outrageous that it "shocks the conscience": for example, the test should not jeopardize the health of the person who undergoes it. However, criminal defendants may invoke the privilege against selfincrimination to prevent the use of neuroscientific evidence when the evidence is "testimonial" in nature, compelled, and incriminating. We also suggest developing specific statutory limitations and guidelines to regulate the gathering and use of neuroscientific evidence in criminal proceedings, as it may be preferable to reliance on a patchwork of constitutional doctrine.

Dennis Patterson (2014)Transnational governance regimes, In: International Legal Positivism in a Post-Modern Worldpp. 401-420 Cambridge University Press