Category Archives: Jurisprudence
May 1, 2026 Carlos BernalJurisprudence
Francisco J. Urbina,
The Object of Interpretation, 114
Geo. L.J. __ (forthcoming 2026), available at
SSRN (Feb. 11, 2025).
In The Object of Interpretation, Professor Urbina offers a comprehensive exploration of this topic. He addresses the nature of the object of interpretation, the different senses of the term “object of interpretation”, the alternative candidates for objects of interpretation, and how to determine which should be the object in practice. The paper claims that there is no single correct object of legal interpretation. Text, lawmaking choice, practice, and order are suitable candidates. None of them are necessary objects of interpretation. Ultimately, the object of interpretation is what is treated as a precise source of law, namely, facts that are recognized as generating law. Which candidate is the object of interpretation in any given context is contingent on descriptive considerations on what is regularly treated as a legal source in that legal system and on normative considerations on what officials should treat as a legal source. In this sense, officials cannot presuppose what the object of interpretation is. They should ground what that object should be. Furthermore, in many instances, the object of interpretation is legally unsettled. When this is the case, legal interpreters must exercise discretion in choosing an object of interpretation. But they must also deliberate morally about whether to follow a legal settlement when there is one, and about which settlement they will help bring about when one is needed. Hence, the “‘correct’ object of interpretation is, then, a function of positive law and moral judgment”.
For his analysis, Professor Urbina understands a legal source as a “thing that contains or generates legal norms”, and legal interpretation as the activity of determining what legal norms are generated by legal sources. According to his point of view, a legal source is a fact that generates legal norms that either (i) has been issued according to the rules of the legal system; or (ii) that has been recognized as a legal source in legal practice by officials. In any of these cases, the legal system could recognize a source more or less “precisely”. Thus, it could recognize, for example, “What the Queen in Parliament enacts” as law or “The text that the Queen in Parliament enacts” as law. The latter recognition is at the level of precision of the object of interpretation. Thus, the law here settles the object of interpretation by sanctioning one of the possible alternatives. These two features can break a possible circularity problem, namely, that a legal source is a fact that can generate legal norms, and, at the same time, a legal norm is a determination grounded in a legal source. Continue reading "The Object of Legal Interpretation"
Apr 3, 2026 Sean CoyleJurisprudence
The Nature of Law is an insightful and engaging book that challenges almost every touchstone of modern jurisprudence. Proceeding from the thesis that laws must be understood after all as commands rather than rules, the book defends the thesis that law itself must be understood by reference to the common good. The view that the law consists of commands does not take us back to the Austinian jurisprudence that preceded H. L. A. Hart’s (the author maintains that John Austin’s theory is indeed radically defective), but challenges the modern consensus that Hart’s conception of law as a system of rules is really the advance it is supposed to be.
The book’s central sections deal with the question of whether there is an obligation to obey the law, not (as Joseph Raz maintains) merely because the law consists of reasons for action that apply to the subject anyway (P. 199), but because the law secures the common good in ways that cannot be successfully contemplated or advanced by multitudes of individuals, even if those individuals steadily wish to act for the common good. This thesis is linked to that of command, for the author argues that commands generate genuine obligations, and do not simply, as Hart suggested, oblige (Pp. 93-96, 204). In fact, it is Hart who runs into trouble, for his argument is based on the idea that rules are to be theorised as practices, but these can be shown to lack a normative element. Continue reading "Modern Analytical Jurisprudence"
Mar 4, 2026 Izabela SkoczenJurisprudence
In the article, Lawful, But Not Really: The Dual Character of The Concept of Law, Brian Flanagan and Guilherme de Almeida challenge the traditional divides in jurisprudence as to the definitions of the concept of law as well as the concept of legal validity. The article intends to offer a novel, third-way approach between the two traditionally most populated camps in legal philosophy, namely positivism and natural law theory.
The novelty of the article does not consist only in its theoretical appeal, but also in adopting a relatively new methodology, namely the methodology of experimental jurisprudence (“xjur”). Xjur seeks to shed new light on traditional jurisprudential questions by employing the methodology of the psychological, sociological, or cognitive sciences. The methods include, among others, massive online surveys, corpus studies (analyzing a large collection of texts), neuroimaging, or decision-making in immersive virtual reality. Using these methods permits researchers to achieve a more accurate grasp of how people understand concepts such as, for example, intention, causation, rule, law, or reasonableness. Moreover, using such methods permits us to end speculation as to, for example, what the linguistic or conceptual intuition of a certain population is. See SEP entry on experimental jurisprudence. Continue reading "What is Real Law?"
Feb 2, 2026 Brian BixJurisprudence
Gregory Klass,
What Might Contract Theory Be?, in
Understanding Private Law: Essays in Honour of Stephen A. Smith 181 (Evan Fox-Decent, John C. P. Goldberg & Lionel Smith eds. 2025).
Gregory Klass’s article, What Might Contract Theory Be?, was published in the collection, Understanding Private Law, a volume honoring Stephen A. Smith, the eminent Contract and Private Law Theory scholar who passed away far too young (shortly before this volume’s publication). Klass’s article focuses on an influential discussion in the first chapter of Smith’s influential work, Contract Theory. In that chapter, Smith sets out the criteria he believes should be used to evaluate theories of contract law. In particular, Smith offers four criteria: fit, coherence, morality, and transparency. In Klass’s discussion, he asks good, probing questions of each of Smith’s categories and the way that Smith applies them. (Pp. 183-89.) However, Klass’s most important challenge may be the following, general one: should a theorist of contract law (or other doctrinal areas of law) be essentially an outside spectator to the practice, or essentially a (kind of) participant in the practice?
Whether theorists should be (or should treat themselves as being) participants or observers has been an active dispute for some time in the related area of general theories about the nature of law. Many of the best-known theories of law take primarily an observer’s attitude towards the subject – law, legal norms, the legal system. At the same time, at least since the work of H. L. A. Hart, they have simultaneously given significance to the “internal point of view,” the fact that some of those in the practice accept the law (as giving them reasons for action). By contrast, Ronald Dworkin presented a theory of law, and an approach to theorizing about law, in which the theorist is a participant in the practice, and “no firm line divides jurisprudence from adjudication or any other aspect of legal practice.” Hart’s response to Dworkin on this matter was simple: that whatever value there might be to a theory built entirely from an insider’s perspective, “there is an important place for general and descriptive jurisprudence”. Continue reading "Theorizing for Insiders and Outsiders"
Jan 4, 2026 Kenneth HimmaJurisprudence
Luka Burazin,
Naturalized Jurisprudence, in
Elgar Concise Encyclopedia of Legal Theory and Philosophy of Law, (John Linarelli ed.) __ (forthcoming 2026), available at
SSRN (Nov. 11, 2024).
Luka Burazin’s Naturalized Jurisprudence is an elegant discussion of the various movements to naturalize legal philosophy. Burazin differentiates between substantive and methodological naturalism, further distinguishing two types of substantive naturalism: “Ontological naturalism is a view that philosophy should accept as real or actually existing only (in a broad sense) natural things, properties, entities and phenomena (i.e., those identified through the methods of empirical sciences)…. Semantic naturalism is the view that a philosophical analysis of a concept must show it to be ‘analyzable in terms that admit of empirical inquiry’” (P. 1).
In contrast, he explains methodological naturalism as “the view that philosophical theorizing should abandon armchair theorizing on the basis of philosophers’ intuitions and common-sense beliefs (‘truisms’), thought experiments (hypothetical situations), and a priori conceptual analysis, and use instead the (empirical) methods of successful (natural and social) sciences and the scientific style of explanation.” (P. 1.) Continue reading "What is “Naturalized Jurisprudence”?"
Nov 21, 2025 Julieta RabanosJurisprudence
What lies behind one of our most engrained and persistent assumptions in law – the existence of a specific kind of intention underlying the utterances of an authority?
This is the question that Poggi and Ferraro endeavour to address in this article, and in doing so, they embark on a particularly complex enterprise: to show that what we call “legislative intent” is a deception. Or, put differently: that what we call “legislative intent” does not exist as such, but (only) as a construction by the interpreters; and therefore, that the invocation of “legislative intent” to justify a specific interpretation of a legal text is a sleight of hand that conceals – and, even more, amplifies – the interpreters’ discretion. And all this is done under the guise of objective linguistic rationality and strict respect and deference for the legislator’s decisions. Continue reading "The Veil of Legislative Intent"
Oct 22, 2025 Barbara LevenbookJurisprudence
A philosophical anarchist believes that law cannot obligate. That means that it cannot impose a genuine obligation, which is a special kind of reason for action. In this article, Kenneth Ehrenberg makes the case that three popular theories about law, legal authority, or practical reason commit their proponents to philosophical anarchism. Though explicitly his discussion is limited to the three, there is enough in his arguments to show that it’s very difficult to avoid philosophical anarchism in your theory about authority, reason-giving, or the normativity of law. If you think that law’s reason-giving force comes ultimately from some non-legal source, you’ve embraced this form of anarchism.
Readers will not be surprised to learn that those who deny that law has practical authority, insisting instead that its authority is only theoretical, are philosophical anarchists. They acknowledge that law cannot create novel reasons for action. It follows that law cannot create obligations, either. It only provides reasons for belief. The big surprise is that natural law theory of the Mark Murphy variety falls into this category. The appeal of such a theory has long been that it vindicates the law’s normative language of rights and obligations. It does so by vindicating the intuition, held by many, that legal rights and obligations are real rights and obligations, and thus, genuine reasons for action. It might seem, then, that law – that is, human or positive law — creates such reasons. But Ehrenberg makes a persuasive case that, given the standard natural lawyer commitment to the unity of value, any genuineness in the obligation stems from pre-existing or background principles (of the natural law, of reason, or directly from God). (Positive) law does not, then, generate genuine reasons for action; and so, it cannot obligate. Something else is doing the work. Continue reading "How to Be an Anarchist Without Really Trying"
Sep 23, 2025 Jeffrey PojanowskiJurisprudence
Intentionalism in contemporary legal interpretation is unloved, at least in my United States. Textualists, purposivists, and dynamic interpreters disagree on much, but they tend to agree that any rich form of legislative intent is not a proper—or even possible—quarry for readers pursuing a statute’s legal meaning. At most, they will concede that legislative authors have the minimal intent to make law when voting on the authoritative text.
Yet a moment’s reflection raises worries about this consensus. Intentionalist legal and literary theorists contend, with plausibility, that all texts presuppose a communicating author; that is why you regard what you see on your screen as words, rather than stray marks that happen to fall into an uncannily familiar pattern. If that is so, and if legislative intent is out of bounds, we are either following statutes that have no author or whose authorship is attributable to the interpreter (who constructs the reasonable reader of legal English, the reasonable person pursuing reasonable purposes reasonably, or the chain novelist who makes the law the best it could be). Invoking authorless texts to impose damages, fines, jail, or death sentences is troubling. Treating the interpreter as the re-author, by contrast, raises worrisome problems about separation of powers and legislative supremacy. Hence, a kind of transcendental argument for the necessity of legislative intent.
But wishing does not make it so, and intention-skeptics have marshalled an army of arguments against legislative intent. We can stylize intentionalist challenges in three ways: (i) a “many minds” problem, which makes it hard, if not impossible, to aggregative individual legislators’ intentions around a particular problem; (ii) a “one mind” problem of attributing a single, intending subject somehow wafting up from the collective group like a Hegelian mist; and (iii) a “no mind” problem, when it is likely that nobody in the legislature even considered a particular question. So, are we at an impasse?
Perhaps, but perhaps not. Enter Stephanie Collins (Monash University), David Tan (Deakin University) and their 2024 article Legislative Intent and Agency: A Rational Unity Account. (When you consider Australian academics Professors Collins and Tan alongside Richard Ekins (a Kiwi at Oxford), Jeffrey Goldsworthy (Monash), and Philip Pettit (once a longtime professor at Australian National University), it appears that the Antipodes are quite the hotspot for sophisticated theorization about legislative intention and group agency.) Continue reading "Rethinking Legislative Intent"
Aug 25, 2025 Thomas BustamanteJurisprudence
Some legal theorists suppose political authorities make laws for us and facilitate our access to correct reasons. Authorities play an instrumental role because they are better positioned to balance reasons for action and create second-order reasons to guide our behavior while alleviating our burden of judgment. This is a service only authorities can provide. Other theorists offer a different story. Authoritative pronouncements make an impact in our moral world that is not merely epistemic. They are part of what constitutes a moral obligation, such that the content of political morality depends on the pronouncements an authority has made. Dorfman and Harel, in their recent book, Reclaiming the Public, call the first view the “add-on conception” of political authority, and the second view the “constitutive conception.” (Pp. 45-49.) They claim these conceptions fail to provide a satisfactory account of the normativity of law, in that they purport to explain how law becomes binding via an account of the law’s contribution to the content of our moral obligations. This content-based strategy is wrong, for the authors, because “the moral difference that law makes is essentially one of standing, agency, identity, status, or some such concept”; in other words, it is “not a matter of what the law is, but of whose pronouncements can count as law.” (P. 50.) Law makes a content-independent difference even when people have no moral disagreement. Suppose an aggressor punches the face of an innocent person. Although most people converge on the wrongness of such action, they would still resist the thought that the aggressor can be punished through the efforts of a private person. To make the use of coercion appropriate, it must be the case that the legal norms that command such punishment count as ours, in a way that we can be held responsible for and accountable to those norms.
Reclaiming the Public is not primarily focused on jurisprudence, although it offers a jurisprudence that is part of the larger project of offering a noninstrumental account of “the public” (the “public institutions and the officials that run them”). What makes public institutions special is that they are not simply entities which act for us, but rather that they are able to “speak and act in our name.” (P. 1.) The gist of the book is the claim that political authority must be nonhierarchical. (P. 16.) At the center of the project lies a theory of representation that provides a “linking mechanism between institutions and the people whom they govern.” (P. 1.) When the mechanism of representation works well, rules pronounced by an official can be attributed to the citizens of a political community, who can in turn regard themselves as authors of these rules. But how can a representative’s decision count as a decision of the subjects? The proposed answer is that these rules must “reflect the perspective” of citizens. Representatives must endorse the worldview of the subjects, base their own decisions on these subjects’ preferences and judgments, to act in their name. Perspective-taking, in this view, entails attributability, because “ultimately it is the perspective of its subjects that dictate the rules.” (P. 17.) Continue reading "Towards Nonhierarchical Public Authority"
Jul 8, 2025 Bill WatsonJurisprudence
An all-too-common misconception of the debate between positivists and non-positivists over the nature of law is that the debate hasn’t progressed since H.L.A. Hart and Ronald Dworkin sparred over the subject in the mid-to-late twentieth century. Emad Atiq’s book Contemporary Non-Positivism dispels that misconception and brings readers up to date on the debate. Published in Cambridge University Press’s “Elements in Philosophy of Law” series, the book provides a concise review of the contemporary literature on non-positivism, while also breaking new ground by articulating and defending a modest “non-positivism without the frills.”
The book’s four chapters address (1) the subject matter and methodology of the positivism/non-positivism debate; (2) arguments against positivism; (3) different versions of non-positivism, including Atiq’s non-frilly non-positivism; and (4) questions for further inquiry. Chapter 1 defines non-positivism as a view about the necessary criteria “for a scheme of social organization to constitute a legal system” (P. 1). According to non-positivism, a legal system “must satisfy not just non-normative criteria … but essentially normative criteria as well, such as being to some extent good, or rational, or just” (id.). Continue reading "Non-Frilly Non-Positivism"
