Methodology in Jurisprudence

May 19, 2010 Brian BixJurisprudence

Brian Bix

For decades, if not centuries, discussions in Jurisprudence classes often start with the question, “What is Law?”  What then ensues is usually the bandying about of various conventional or off-the-wall definitions (depending on the tastes and inclinations of the teacher or coursebook editor), followed by a predictable reading and discussion of the 1958 Harvard Law Review debate between H. L. A. Hart and Lon Fuller, perhaps with some reference thrown in to Ronald Dworkin, or a natural law theorist (either very old, Thomas Aquinas, or more recent, say, John Finnis).  By then, it is considered safe to abandon discussions of the nature of law and go on to the next topic.

The problem with these discussions is that they skim across the surface of jurisprudential debates without ever reaching the core.  Courses may include debates about whether the Nazis had law or not, or whether we have a moral obligation to obey the law, but still there is little attention to all that is being assumed by any discussion of theorizing about (the nature of) law.  However, one should not be too quick to blame the teachers (or coursebook editors).  Even the theorists who wrote the canonical articles were not always clear, or helpful, about what is going on when theoretical claims are made. Continue reading "Methodology in Jurisprudence"

Rethinking “International Law”

Apr 26, 2010 Dennis PattersonJurisprudence

Dennis Patterson

It is a staple of the international law literature that international law is not or might not “really be law” because, among other things, it lacks what H.L.A. Hart refers to as a “rule of recognition.”  The contrast is most stark when one compares international law with domestic or municipal law.  In the case of the latter, there is widespread convergence of opinion on valid sources of law and even relative agreement about how to construe those sources.  It is the absence of such convergence that leads some (e.g., “realists” who maintain that power is the best explanation for the behavior of states) to conclude that international law is not law at all.

And what of constitutional law?  The conventional wisdom is that domestic constitutional law is not only law, it is perhaps the most important example of domestic law.  Constitutional law may not be as “solid” as municipal law, but it is certainly much more like “law” than international law could ever hope to be.  As Goldsmith and Levinson unassumingly put the matter, “[t]his Article questions whether these apparent differences between international and constitutional law really run as deep as is commonly supposed.” (1794) Continue reading "Rethinking “International Law”"

Another Ride on Vehicles in the Park

Apr 12, 2010 Brian TamanahaJurisprudence

Brian Tamanaha

“No vehicles in the park”—this deceptively simple rule has commanded the attention of legal theorists ever since the mid-twentieth century tussle between jurisprudential heavyweights Lon Fuller and H.L.A. Hart.  “It is the most famous hypothetical in the common law world,” leads Frederick Schauer, in his terrific analysis of the debate.   Schauer lays out the position of each protagonist, he explains how their respective positions are linked to (and detachable from) their broader theories of law, he indicates what each got right and each got wrong, and he identifies the relevance of the debate to central issues in legal theory and judging today.

“A Critical Guide” is admirably clear, it delivers a passel of insights, it is leavened with dashes of humor, and it comes in at an efficient 35 pages.  Schauer draws out links to legal realism and the legal process school, to Hart’s later engagement with Ronald Dworkin, to debates over Riggs v. Palmer and Church of the Holy Trinity v. United States, as well as touches on other familiar veins in U.S. legal theory.  Along the way, he treats the reader to edifying discussions of contextual meaning and shared acontextual understanding; of the difference between vagueness and “open texture;” of the theoretical and the empirical aspects of the “no vehicles” debate; of the distinction and interaction between linguistic certainty and legal certainty, and much more. Continue reading "Another Ride on Vehicles in the Park"

Meet the Editors

Jan 5, 2010 Michael FroomkinJurisprudence

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (“jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.

Professor Brian Bix
Frederick W. Thomas Professor of Law and Philosophy,
University of Minnesota Continue reading "Meet the Editors"

Call for Papers

Nov 24, 2009 Michael FroomkinJurisprudence

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. Please see the Jotwell Mission Statement for more details. Continue reading "Call for Papers"

Jotwell Mission Statement

Nov 23, 2009 Michael FroomkinJurisprudence

The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree. Continue reading "Jotwell Mission Statement"