Dr Kenneth Ehrenberg
Dr Kenneth Ehrenberg started with the School of Law in 2017 and is a member of the Surrey Centre for Law and Philosophy. Prior to that he held appointments in philosophy and law at the University of Alabama and at the University at Buffalo, SUNY. In 2010, he was HLA Hart Visiting Fellow at the Oxford Centre for Ethics and Philosophy of Law. He holds a PhD in philosophy from Columbia University and a JD from Yale Law School.
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 2017Jurisprudence IPublic Law I
Director of Research
to Preemption, Oxford University Press
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.
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.
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.
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.
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..
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.
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.
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.
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.
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.
Functions and Coherences in the Law, Springer Dordrecht Heidelberg
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
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.