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.
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.
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.
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.
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..
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.
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.
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.
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.
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.
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.
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
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.
The most influential theory of law in current analytic legal philosophy is legal positivism, which generally understands law to be a kind of institution. The most influential theory of institutions in current analytic social philosophy is that of John Searle. One would hope that the two theories are compatible, and in many ways they certainly are. But one incompatibility that still needs ironing out involves the relation of the social rule that undergirds the validity of any legal system (H.L.A. Hart?s rule of recognition) to Searle?s notion of codification: the idea that institutions need official declarations of their constitutive rules in order to enjoy the full benefits of institutions. The incompatibility arises from the fact that, in order to do its institutional work, the basic validity rule must be codified in Searle?s sense?yet, given the particular role it has in legal positivism, it may be impossible to codify in the Searlean sense. In this paper I develop the incompatibility in detail, consider and reject consigning the basic validity rule to Searle?s ?Background? capacities that support institutional facts, and conclude that the best route to eliminating it while doing a minimum of damage to the two theories is to make a slight emendation to Searle?s theory of institutions.
If medical complicity is understood as compliance with a directive to act against the professional's best medical judgment, the question arises whether it can ever be justified. This paper will trace the contours of what would legitimate a directive to act against a professional's best medical judgment (and in possible contravention of her oath) using Joseph Raz's service conception of authority. The service conception is useful for basing the legitimacy of authoritative directives on the ability of the putative authority to enable subjects to comply better with reasons that already apply to them. Hence, the service conception bases the legitimacy of practical authority on a certain kind of greater knowledge or expertise. This helps to focus the conundrum regarding complicity on the clash of expertise between the medical expert and the governing body tasked with coordinating behaviour and otherwise devising rules for the social good. The ethical dilemma presented by a hypothetically legitimate directive to act against a professional's best medical judgment also serves to highlight the moral dimension of one's duty to obey a legitimate authority.