Marmor on What's Left of General Jurisprudence? @Cornell Law

Andrei Marmor, Cornell Law School, has published What's Left of General Jurisprudence? On Law's Ontology and Content as Cornell Legal Studies Research Paper No. 18-26. Here is the abstract.

The aim of this paper is to show that general jurisprudence is in no need of reinvention. The sentiment shared by many contemporary legal philosophers that theories about the nature of law have reached a dead end is challenged here by showing that the debates about the ontology of law and about the determinants of legal contents leave many interesting questions open for serious debate. The paper argues that traditional legal positivism is best seen as a theory about the ontological grounding of legal facts, and that a reductive account of this grounding can be provided with a more sophisticated account of the artifact nature of law, aided by some ideas derived from fictionalism. The paper also acknowledges that such a reductive ontology of law faces serious challenges, particularly from the view point of theories about determinants of legal contents. By explaining these challenges and pointing out how they may be met, the paper aims to show that some the age old debates about the nature or law are very much alive and worthy of serious philosophical inquiry.

Download the article from SSRN at the link.

Kaehler on What Constitutes the Concept of Law? Potentialism as a Position Beyond Positivism and Natural Law

Lorenz Kaehler, University of Bremen Faculty of Law, has published What Constitutes the Concept of Law? Potentialism as a Position Beyond Positivism and Natural Law Theory. Here is the abstract.

The dispute about the proper concept of law has long suggested that there is one concept of law that does not change with society or time. In this regard, positivism and natural law theory agree that there is a definite concept of law, although they disagree about its precise content. The paper examines this assumption by looking at the reasons that constitute the concept of law. It argues that this assumption of an unchangeable nature of the concept of law is implausible as normative reasons turn out to be decisive for this formation. The weight of these reasons might, at least, in principle depend on changing circumstances. The same holds if empirical circumstances are constitutive for the concept of law, because they might change as well. Consequently, the concept of law does not have an a priori fixed content. Instead, it takes on a mere potential relationship to morality. This paper outlines this theory of potentialism.

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Green on Legal Monism: An American History @WMLawSchool

Michael S. Green, William & Mary Law School, has published Legal Monism: An American History in Vienna Legal Philosophy 23-48 (Christoph Bezemek, Michael Potacs, and Alexander Somek, eds., Hart Publishing, 2018) (Vienna Lectures on Legal Philosophy).

Legal monism is the view that necessarily one, and only one, legal system exists. The legal norms of all past, present, and possible communities exist only within in an overarching legal system, which does not itself depend upon any community for its existence. Current legal philosophers — including those who might be described as natural law theorists — reject legal monism. They are legal pluralists, who believe that a multiplicity of discrete legal systems is possible (indeed actual). Although philosophers of law are pluralists, it is difficult to determine jurists’ views on the matter, for monism and pluralism are both compatible with most judgments that they make. Only in a few narrow areas do monistic and pluralistic judgments about the law diverge. One such area is the conflict of laws (or, as those outside the United States would call it, private international law) — in particular, judgments concerning what I will call rules of authorization, which distribute lawmaking power among the officials of various jurisdictions. Rules of authorization include rules determining when a court has personal jurisdiction and when a legislature has legislative jurisdiction — the power to extend its laws to a matter. In this essay, I argue that a commitment to legal monism is evident in American jurists’ views on rules of authorization in the nineteenth and early twentieth centuries. I offer as examples Justice Story, Joseph Henry Beale, and Justice Field. What is more, the subsequent choice-of-law revolution did not reject monism. What it rejected was a conception of rules of legislative jurisdiction as dividing lawmaking power into exclusive spheres. Such rules were now understood as giving the lawmakers of a number of jurisdictions concurrent lawmaking power. Whether these rules were understood monistically or not was left open. Indeed, it is possible that current jurists, if forced to take a stand between a monistic and a pluralistic understanding of rules of authorization, would choose monism.

Download the essay from SSRN at the link.

Postema on Meaning, Analysis, and Exposition: Bentham on the Technology of Thought

Gerald J. Postema, University of North Carolina, Philosophy and Law, is publishing Meaning, Analysis, and Exposition: Bentham on the Technology of Thought in Utility, Publicity, and Law: Essays on Bentham's Moral and Legal Philosophy (Oxford: Oxford University Press, forthcoming). Here is the abstract.

First and foremost a social and legal reformer, Bentham undertook philosophical reflection on language—its nature, use and abuse—in an effort to understand and improve the world. His intellectual energy was trained primarily on law and political ordering, but he looked to every mode of inquiry (“science”) available for analytic and normative tools with which to “rear the fabric of felicity.” The most important of his theoretical innovations, in his view, was his theory of meaning, the heart of which was his analysis of language in terms of “real” and “fictitious” entities. This theory mapped the relations between the domain of thought and physical reality and devised a method of analysis—definition by “paraphrasis”—that enabled systematic ordering of thought. Late in his life, Bentham set out the metaphysical and epistemological foundations of his life’s work, articulating and grounding the philosophical principles that had governed his thinking from the beginning of his career. Reflecting on language and its relation to thought and reality, he produced sophisticated theories of meaning and of the technology of thought—the techniques and principles by which the active mind populates and orders the domain of thought. With this technology, Bentham sought to discipline potentially wayward language and thereby to deprive arbitrary power of one of its favorite weapons.

Download the essay from SSRN at the link.

Sykes and Tranter on The Rise and Fall of Ziggy Stardust and Natural Law @GriffLawSchool

Robbie Sykes and Kieran Mark Tranter, both of Griffith University Law School, are publishing The Rise and Fall of Ziggy Stardust and Natural Law in the International Journal for the Semiotics of Law (2018). Here is the abstract.

In Natural Law and Natural Rights, John Finnis delves into the past, attempting to revitalise the Thomist natural law tradition cut short by opposing philosophers such as David Hume. In this article, Finnis’s efforts at revival are assessed by way of comparison with – and, indeed, contrast to – the life and art of musician David Bowie. In spite of their extravagant differences, there exist significant points of connection that allow Bowie to be used in interpreting Finnis’s natural law. Bowie’s work – for all its appeals to a Nietzschean ground zero for normative values – shares Finnis’s concern with ordering affairs in a way that will realise humanity’s great potential. In presenting enchanted worlds and evolved characters as an antidote to all that is drab and pointless, Bowie has something to tell his audience about how human beings can thrive. Likewise, natural law holds that a legal system should include certain content that guides people towards a life of ‘flourishing’. Bowie and Finnis look to the past, plundering it for inspiration and using it as fuel to boost humankind forward. The analogy of Natural Law and Natural Rights and Bowie’s magpie-like relationship to various popular music traditions ultimately reveals that natural law theory is not merely an objective and unchanging edict to be followed without question, but a legacy that is to be recreated by those who carry it into the future. Law’s instruments of critique must not forget these transformative qualities. 

Download the article from SSRN at the link.

Holtermann, Introduction to Alf Ross: On Law and Justice @JakovoHoHo

Jakob v. H. Holtermann, University of Copenhagen, iCourts, Centre of Excellence for International Courts, has published Alf Ross: On Law and Justice; Editor's Introduction, as iCourts Working Paper Series, No. 116. It is also forthcoming in Alf Ross, On Law and Justice (Jakob v. H. Holtermann, ed., tr. Uta Bindreiter, Oxford: Oxford University Press, 2018).

This paper constitutes the editor’s introduction to the new English translation of Alf Ross’s main work On Law and Justice forthcoming on Oxford University Press (2018). On Law and Justice is a classic work of twentieth-century legal philosophy. The original Danish manuscript (Om ret og retfærdighed) was first published in 1953. The first translation into English (1958) was notably poor – significantly abridged and misrepresenting Ross’s views. Translated in full from scratch, this critical edition sheds new light on Ross’s work and resituates it firmly in the context of current debates in the field. In recent years, Alf Ross (1899-1979) has attracted increasing levels of attention. Not only is he, in HLA. Hart’s words, “the most acute and best-equipped philosopher” of Scandinavian legal realism. On Law and Justice reveals why Ross is by prominent scholars considered one of the three or four most important legal philosophers of the past century – and why his relevance is on the rise again. On Law and Justice provides the most convincing take on a consistent legal realist position. Grounded in a moderate version of the logical empiricist philosophical outlook, the mature Alf Ross outlines a purely empirical legal research programme, which simultaneously fully recognizes the distinctly normative character of law. In this way, Ross’s legal realism avoids the standard critiques against behaviorist reductionism while remaining categorically distinct from legal positivism and natural law. This editor’s introduction to the new edition clarifies Ross’s general philosophical project and details his position including Ross’s sophisticated dual distinction between internal and external aspects of law which essentially anticipated and surpassed Hart’s celebrated but more crude analysis. Holtermann connects Ross’s work with the ongoing empirical turn in legal scholarship, and with related attempts to associate legal realism with more broad philosophical trends under the label naturalized jurisprudence. This paper also includes the editor’s “Note on the translation of ‘gyldig’ and ‘gældende ret’ as ‘valid’ and ‘scientifically valid law’”.

Download the introduction from SSRN at the link.

Kramer on Hart and the Metaphysics and Semantics of Legal Normativity @cambridgelaw

Matthew H. Kramer, University of Cambridge Faculty of Law, has published Hart and the Metaphysics and Semantics of Legal Normativity as University of Cambridge Faculty of Law Research Paper No. 18/2018. Here is the abstract.

A number of philosophers in recent years have maintained that H.L.A. Hart in "The Concept of Law" propounded an expressivist account of the semantics of the legal statements that are uttered from the internal viewpoint of the people who run the institutions of legal governance in any jurisdiction. Although the primary aim of this article is to attack the attribution of that semantic doctrine to Hart, the article will begin with some metaphysical matters – the matters of reductionism and naturalism – that often lie behind the development of expressivist approaches to the semantics of normative discourse. After briefly exploring those metaphysical concerns (to which I will return later), the article will begin its main discussion by rehearsing the distinction between the semantics and the pragmatics of utterances. It will then delineate the doctrine of expressivism which the aforementioned philosophers have in mind when they ascribe that doctrine to Hart. Although I will make reference to a few such philosophers, I will focus chiefly on an article by Kevin Toh that has been the fountainhead of all the subsequent attributions of expressivism to Hart. As will be argued herein, Toh and like-minded philosophers have gone astray in imputing to Hart a semantic version of expressivism. Notwithstanding that Hart’s theory of law can aptly be characterized as expressivist, that characterization is appropriate only when expressivism is understood as an account of the pragmatics of legal statements rather than as an account of their semantics.

Download the article from SSRN at the link.

New From Hart Publishing: Christoph Kletzer, The Idea of a Pure Theory of Law (2018) @hartpublishing @c_kletzer

New from Hart Publishing: Christoph Kletzer, The Idea of a Pure Theory of Law: An Interpretation and Defence (2018). Here from the publisher's website is a description of the book's contents.

Most contemporary legal philosophers tend to take force to be an accessory to the law. According to this prevalent view the law primarily consists of a series of demands made on us; force, conversely, comes into play only when these demands fail to be satisfied. This book claims that this model should be jettisoned in favour of a radically different one: according to the proposed view, force is not an accessory to the law but rather its attribute. The law is not simply a set of rules incidentally guaranteed by force, but it should be understood as essentially rules about force. The book explores in detail the nature of this claim and develops its corollaries. It then provides an overview of the contemporary jurisprudential debates relating to force and violence, and defends its claims against well-known counter-arguments by Hart, Raz and others. This book offers an innovative insight into the concept of Pure Theory. In contrast to what was claimed by Hans Kelsen, the most eminent contributor to this theory, the author argues that the core insight of the Pure Theory is not to be found in the concept of a basic norm, or in the supposed absence of a conceptual relation between law and morality, but rather in the fundamental and comprehensive reformulation of how to model the functioning of the law intended as an ordering of force and violence.

 

David on Love, Law, and the Judeo-Christian Separation-Individuation

Joseph E. David, Sapir Academic College School of Law, has published Love, Law and the Judeo-Christian Separation-Individuation. Here is the abstract.

Borrowed from a psychological theory, the principle of ‘separation-individuation’ refers to a developmental phase in which a subject develops sense of differentiation from her past or present origins and sense of autonomous selfhood and independency. The article suggests viewing the typology of anomist and legalist religions not as a consistent phenomenology but rather in relation to the above principle and the need to differentiate and create a religious self-identification.

Download the article from SSRN at the link.

Robinson on More Reasons Why Jurisprudence Is Not Legal Philosophy @otago

Michael Spencer Robertson, Faculty of Law, University of Otago, has published More Reasons Why Jurisprudence is Not Legal Philosophy at 30 Ratio Juris 403 (2017). Here is the abstract.

It is generally assumed, without argument, that legal theory, legal philosophy, philosophy of law, and jurisprudence all mean the same thing. This paper rejects that assumption, and in particular the assumption that jurisprudence is the same thing as legal philosophy. This assumption has recently been challenged by Roger Cotterrell in his article “Why Jurisprudence Is Not Legal Philosophy,” and I seek to build on his arguments by adding insights found in the work of Stanley Fish.

The full text is not available from SSRN. Download from Ratio Juris here.

Schauer on Preferences For Law? @UVALaw

Frederick Schauer, University of Virginia School of Law, is publishing Preferences for Law? in volume 42 of Law and Social Inquiry (2017). Here is the abstract.

This paper is a response to commentary on The Force of Law offered at a symposium at the University of Chicago Law School and published in Law and Social Inquiry. In responding to commentary and critique from Daryl Levinson, Don Herzog, Gillian Hadfield, Robert Ellickson, Janice Nadler, and Robin Kar, I focus principally on the questions of what it would mean for law qua law to be an important factor in the decisions of officials and of citizens, whether it is in reality such a factor, and the extent to which citizens and officials genuinely do have sanction-independent preferences for law and legality once we distinguish between the substantive content of law and the content-independent fact of law.

Download the abstract from SSRN at the link.

Maks del Mar on Law and the Legal Imagination @maksdelmar @aeonmag

Maks del Mar writes about why imagination is a necessity for judges and lawyers. A brilliant essay. Here, for Aeon. 

Theilen on Philip Allott's Legal Utopianism @jtthei @ChloeJSKennedy

Jens T. Theilen, Walther Schücking Institute, University of Kiel, has published Of Wonder and Changing the World: Philip Allott's Legal Utopianism at 2017 German Yearbook of International Law 60. Here is the abstract.

Utopian perspectives on law are rare – both within legal theory, which generally eschews utopianism as frivolous and unrealistic, and within utopian studies, which have largely neglected to analyse the role that law plays in utopia or on the path towards it. Philip Allott’s work, and his latest monograph 'Eutopia' in particular, constitutes a notable exception which is positioned at the intersection between law and utopianism, and this paper aims to explore that intersection with a view to identifying the conceptualisation of law that it implies. To tease out the utopian elements in Allott, I suggest reading 'Eutopia' in light of Ernst Bloch’s 'The Principle of Hope'. Three related utopian themes can thus be identified: the orientation towards the future based on dreams, imagination, and educated hope; the defamiliarisation from the present to open up possibilities of change; and the situation of utopian thought in relation to present reality, dynamically construed, with an emphasis on the need for action by human beings to propel society towards a utopian future. I argue that this framework leads to a specifically utopian account of law which is critical of the law as it stands, dynamically oriented towards an open future, and in the hands of human beings who have the power to shape and transform its content. The conclusion considers the implications of this analysis for the genre of text to which 'Eutopia' belongs: if the point is to transform law and society by way of human action, then it constitutes a utopian manifesto that aims to instigate a sense of responsibility among its readers, and thus achieve the world as it could be.

Download the essay from SSRN at the link.

Sean Coyle, Modern Jurisprudence: A Philosophical Guide, 2nd Edition, Now Available in Paperback @hartpublishing

Newly published: Sean Coyle, Modern Jurisprudence: A Philosophical Guide, 2d edition (Hart Publishing, 2017). Paperback.

The second edition of this book provides a concise and accessible guide to modern jurisprudence, offering an examination of the major theories as well as highlighting principal themes such as legality and justice. Together with new material, the second edition explores the historical developments and ideas that give modern thinking its distinctive shape. A key feature of the book is that readers are not simply presented with opposing theories, but are guided through the rival standpoints on the basis of a coherent line of reflection from which an overall sense of the subject can be gained. Chapters on Hart, Fuller, Rawls, Dworkin and Finnis take the reader systematically through the terrain of modern legal philosophy, tracing the issues back to fundamental questions of philosophy, and indicating lines of criticism that result in a fresh and original perspective on the subject.

 

d'Aspremont on What Was Not Meant To Be: General Principles of Law As a Source of International Law @JdA_IntLaw ‏

Jean d'Aspremont, University of Manchester, School of Law, and Sciences Po Law School, is publishing What Was Not Meant to Be: General Principles of Law As a Source of International Law in Global Justice, Human Rights, and the Modernization of International Law (R. Pisillo Mazzeschi and P. De Sena, eds., Brill, 2018). Here is the abstract.

This paper reflects on the modest role fulfilled by general principles of law in contemporary international legal thought and practice. It submits that the tepidity with which international lawyers have resorted to general principles of law in practice and legal thought — and especially in their expansionist enterprises — is the result of the inability of general principle of law to operate a source of international law. In particular, it is argued here that the miserable fate of general principles of law can be traced back to a choice by early 20th century international lawyers to locate and organize the prevention of non liquet as well as analogical reasoning within the sources of international law. The following will show that the doctrine of sources of international law may not have proved the most adequate framework for the prevention of non liquet and gap-filling function that was bestowed upon general principles of law. It is only once general principles of law come to be construed and deployed in international legal thought and practice as an argumentative technique of content-determination (i.e. a mode of interpretation) and thus not as a source of international law that they have a chance to play a meaningful role in international legal argumentation.

Download the essay from SSRN at the link.

Burazin on Brian Leiter and the Naturalization of the Philosophy of Law

Luka Burazin, University of Zagreb Faculty of Law, is publishing Brian Leiter and the Naturalisation of the Philosophy of Law in The Province of Jurisprudence Naturalized (Jerzy Stelmach, Bartosz Brożek, and Łukasz Kurek eds. Warsaw: Wolters Kluwer 2017).

The paper opens with an exposition of the basic ideas of the philosophical school of naturalism and its most widespread version, methodological naturalism. This is followed by three of Leiter’s proposals for the naturalisation of questions of the philosophy of law: the first consists in naturalising the theory of adjudication modelled on replacement and normative naturalism in epistemology, the second consists in turning the philosophy of law into the abstract and reflective part of the empirical social sciences on law, and the third consists in colonising the philosophy of law with experimental philosophy. The thesis that the last version of Leiter’s naturalism is, in fact, reduced to a so-called modest methodological naturalism is put forward. The paper closes with the most important criticisms of Leiter’s naturalistic methodological approach, as well as with the thesis on the complementarity between conceptual analysis and modest methodological naturalism.

Download the essay from SSRN at the link.

Paulson on Metamorphosis in Hans Kelsen's Legal Philosophy

Stanley L. Paulson, Washington University Law School (Emeritus), has published Metamorphosis in Hans Kelsen's Legal Philosophy at 80 The Modern Law Review 860 (2017). Here is the abstract.

Two major questions stem from the fundamental shift in Hans Kelsen's legal philosophy that takes place in 1960 and the years thereafter: first, the scope of the shift and, second, its explanation. On the first question, I argue that the shift is not limited to Kelsen's rejection of the applicability of logic to legal norms. Rather, it reaches to his rejection of the entire Kantian edifice of his earlier work. On the second question, I argue that the explanation for the shift has a conceptual dimension as well as a historico‐biographical dimension. That is, I argue that Kelsen's rejection of the principle of non‐contradiction vis‐à‐vis legal norms reaches to the Kantian edifice in that the principle was presupposed in Kelsen's earlier work and appears, expressis verbis, in his 'Kantian filter'. And I argue that certain historico‐biographical data are germane, including, quite possibly, the earlier revolution in Kelsen's thought, that of 1939–40.

The full text is not available from SSRN.

Sherwin on Vico's Providence Today @RKSherwin

Richard K. Sherwin, New York Law School, has published Vico's Providence Today. Here is the abstract.

According to Vico, it is piety, the way divine providence breaks into fractured time, that teaches the ideal patterns of history. Today, we stand in need of a post-secular, metaphysical framework for this Vichian insight in order to counter the nihilist impulse that has swept through late modernity. Vico had already identified nihilism as the dark secret of Cartesianism. Indeed, it is the historical vicissitudes of that dark secret for which he presciently sought to prepare us. Piety finds its roots in something beyond the subject, beyond the will. It is that disruptive, ineffable force that resists the impulse toward totality (the will to power) in whatever historic form it may take: from the totalizing mechanics of Hobbes’ Leviathan state to the totalizing algorithmic programming that covertly constructs and drives today’s digital social media and the so-called ‘Internet of Experience.’

Download the article from SSRN at the link.

Marmor on What Law Is and What Counts as Law @CornellLaw

Andrei Marmor, Cornell University Law School, has published What Is Law and What Counts as Law? The Separation Thesis in Context at Cornell Legal Studies Research Paper No. 17-34. Here is the abstract.

The separation thesis associated with the legal positivist tradition in legal philosophy holds that the legal validity of norms depends only on their sources, not on considerations of merit or value. In this essay I show that the separation thesis comes under pressure from cases in which an answer to the question: Is o an F? partly depends on the values associated with the nature of F. This is certainly the case when we try to determine whether an object is a work of art, for example. In response, proponents of the separation thesis would want to resist the analogy with art, and maintain that the ascription of legal validity to a norm does not involve any evaluative dimensions. I argue that this line of response is not very firm, and a better way to defend the separation thesis is to see it as an answer to the question of what makes it the case that an o counts as an F in the relevant society. I try to show that this latter type of question follows from the theoretical context in which the separation thesis comes up, namely, a reductionist explanation of legal validity. My purpose here is to show how a proper construal of the separation thesis, in the context of legal positivism’s reductionist ambition, goes a long way in supporting its truth.

Download the article from SSRN at the link.

Cambridge Companion to Natural Law Jurisprudence, edited by George Duke and Robert P. George--New From Cambridge University Press @deakin @McCormickProf @CambridgeUP

New from Cambridge University Press: The Cambridge Companion to Natural Law Jurisprudence (George Duke, Deakin University, Victoria, Australia, and Robert P. George, Princeton University, NJ, USA), eds., CUP, 2017). Here from the publisher's website is a description of the book's contents.

This collection provides an intellectually rigorous and accessible overview of key topics in contemporary natural law jurisprudence, an influential yet frequently misunderstood branch of legal philosophy. It fills a gap in the existing literature by bringing together leading international experts on natural law theory to provide perspectives on some of the most pressing issues pertaining to the nature and moral foundations of law. Themes covered include the history of the natural law tradition, the natural law account of practical reason, normativity and ethics, natural law approaches to legal obligation and authority and constitutional law. Creating a dialogue between leading figures in natural law thought, the Companion is an ideal introduction to the main commitments of natural law jurisprudence, whilst also offering a concise summary of developments in current scholarship for more advanced readers.

Brings together leading international experts in the field • Provides a comprehensive overview of cutting edge scholarship in the area • Can serve as an introduction to the central area of legal theory, or the first port of call for scholars and students of natural law

Includes contributions by George Duke, Robert P. George, John Finnis, Knud Haakonssen, Jonathan Crowe, Christopher Tollefsen, Veronica Rodriguez-Blanco, Thomas Pink, Jacqueline Laing, N. E. Simmonds, Mark Greenberg, Robert Alexy, Mark C. Murphy, Gerard V. Bradley, and Kristen Rundle.