Sevel on Historical Origins of Raz's Legal Philosophy @MichaelSevel @SydneyLawSchool

Michael Sevel, University of Sydney Faculty of Law, has published Historical Origins of Raz's Legal Philosophy. Here is the abstract.

Joseph Raz (1939-2022) was one of the most influential philosophers of law of the last half century. But the reception of his legal philosophy has been shaped by relatively narrow debates about the nature of authority and the commitments of Hartian legal positivism. A more comprehensive assessment of his achievements begins by considering the complex historical origins of his legal philosophy. I consider three distinct historical strands relevant to understanding many of the central features and the general framework of his philosophy of law: developments in the mid-twentieth century in moral, political, and legal philosophy regarding the concept of a reason for action, of the nature of political authority, and the systemic character of positive law, respectively. Raz’s legal philosophy can profitably be viewed as a novel convergence and synthesis of these many developments and influences, as an ambitious attempt to develop a systemic theory of positive law in terms of the concept of authority which is in turn explained from the perspective of practical reason.

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Spaak on Legal Argumentation and the Nature of Law

Torben Spaak, Stockholm University, Faculty of Law, has published Legal Argumentation and the Nature of Law as Stockholm University Research Paper No. 133. Here is the abstract.

The primary task of judges is to decide cases and give reasons for their decisions, whereas the primary task of doctrinal legal scholars is to provide a thought-out picture of the law of the land, or some part thereof; and in order to perform these tasks judges interpret and apply the law, whereas legal scholars interpret the law without applying it (except in their imagination). However, thinking or theorizing about the nature of law, something legal philosophers tend to find quite interesting, is not something most judges or legal scholars engage in, or even consider interesting. The main reason this is so, I suspect, is that they think that such theorizing has no interesting implications for legal argumentation. But are they right? Could it not be that theories of law have interesting implications for legal argumentation? To answer such a general question would be easier said than done, however. In this chapter, I therefore wish to focus on a more limited question, one that is easier to handle, namely, the question of whether any of four carefully selected contemporary theories of law, namely, Michael Moore's, Joseph Raz's, Robert Alexy's, and Alf Ross's theories, have interesting implications for legal argumentation. While such a limited investigation cannot yield general results, it can tell us whether some theories of law have interesting implications for legal argumentation; and the result, whatever it may be, may suggest, though it will not prove, that the same may be true of other theories of law. Accordingly, having discussed these four theories, I argue (1) that Moore’s and Alexy’s theories of law have interesting implications for the interpretation and application of the law; (2) that Raz’s thesis has interesting implications both for the interpretation and application of the law and for legal argumentation more broadly conceived, namely, for the legitimacy of judicial decision-making; (3) that Ross’s theory, interesting though it is, lacks interesting implications for legal argumentation more broadly conceived and thus for the interpretation and application of the law, too; and (4) that claims (1)-(3) suggest, though they do not prove, that other theories of law, too, may have interesting implications for legal argumentation.

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Lehtimäki on Two Tales of Finding the Content of Law @hybridial

Mika Lehtimäki, University of Oxford Faculty of Law, has published Two Tales of Finding the Content of Law. Here is the abstract.

The paper examines two different views of understanding the content of law and truth of our legal propositions, arguing that this largely depends on our point of view on law. However, furthering our understanding of the nature of law also depends on our ability to elucidate law’s relation to morality, the nature of normative claims made by law and the relationship between validity of legal norms and their justification. These factors determine and restrict the way we can ascertain the content of law. I examine in the paper, on the one hand, Joseph Raz’s statement on the scope of justifiable implication of the content on authoritative directives and intentions on law-makers and, on the other hand, Ronald Dworkin’s account on the role of integrity in identification and justification of legal norms. This means comparing Raz's argument that identification of law cannot rely on substantive political or moral argumentation and Dworkin’s account of law as integrity, which relies inherently on political morality, understanding the content of law as transparent to the scheme of principles justifying our authoritative directives. I argue in this paper that Raz’s and Dworkin’s views are incompatible concerning their relationships to morality, their justificatory aspects and ascertainment of legal content. However, they show that conceptual truths about law should correspond to our actual legal practices and that there may be space for refinements in their respective theories. But this leads to pluralistic views on law that remain to be explored.

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Gebeye on Legal Theory in Africa: Between Legal Centralism and Legal Pluralism

Berihun Adugna Gebeye, Central European University (CEU), Department of Legal Studies, is publishing Legal Theory in Africa: Between Legal Centralism and Legal Pluralism in the Queen Mary Law Journal (2017). Here is the abstract.

The African legal universe is difficult to capture through the lens of legal centralism and legal pluralism. While the former excludes the pre-colonial African legal experience, the latter blurs the post-colonial legal dynamics. By employing Joseph Raz’s theory of legal system, this paper argues that there have been centralized legal systems and plural laws in Africa. Customary legal systems, colonial legal systems and constitutional legal systems have existed in pre-colonial, colonial and post-colonial Africa respectively. Plural laws such as diverse customary and religious laws, imperial colonial laws, and statutory laws constituted these legal systems in different time and space. Hence, the quest for African legal theory rests in between legal centralism and legal pluralism.

The full text is not available for download.

Orwell's Legal Theory in "1984"

Nicolás López Pérez, University of Chile School of Law, Universidad Carlos III de Madrid, has published Dystopias and Legal Theory: A View from Orwell's 1984. Here is the abstract.

This essay will focus on the society that Orwell tries to build with the story and how he denotes a legal system that could be analyzed by the legal theory, principally with methodological tools situated in the analytical jurisprudence. For this purpose, I will divide the essay in two axis: first, a brief synthesis of the book with its main features, then identify elements related to society and Law studies, and answer: why “1984” is a subject of analysis; second, the sketch of the semantics and the discursivity of some important concepts for legal theory as State, Legal System, Authority, and Morality, present in the Orwell’s work with the appropriate discussion in analytical jurisprudence, principally with Raz’s works.

Download the paper from SSRN at the link.