Category Archives: Jurisprudence
Jun 12, 2025 Maris KöpckeJurisprudence
The best answers to the questions “who should decide?,” “what should be decided?,” and “how should the decision be taken?” do not always sit easily together. Sound institutional design wrestles with this problem. Procedures for authoritative decision-making ought to minimize the danger of unjust or misguided outcomes. But they also ought to ensure, so far as possible, that those concerned have a say in the decision, lest their self-direction be unjustly curbed by someone else choosing on their behalf.
Over the years, political philosophy and constitutional scholarship have proposed different recipes for distributing political power within a community, by way of responses to the above concerns. Ignacio Guiffré thinks that the currently most extended recipe – strong constitutionalism – is in need of improvement. He also thinks that its supporting theories harbor fundamental inconsistencies. In defending these claims, this thought-provoking article flags a number of soft spots in contemporary political and legal theory, concerning matters that reach beyond institutional design and speak to the foundations of certain strands of liberalism. Continue reading "Justice, Democracy, and Institutional Design"
May 14, 2025 Andrew HalpinJurisprudence
For those interested in the specific subject matter of Norman Ho’s recent article in Jurisprudence, “‘The Confucianization of law’ debate,” it provides an informative read, offering some original insights on the historical evidence for the influence of Confucianism on Chinese law. A wider readership should be attracted to this article for Ho’s stimulating reflections on the interplay between historical and jurisprudential accounts of the topic.
The platform for Ho’s wide-ranging discussion is an examination of Qu Tongzu’s “Confucianization of law” theory and its reception within the literature. Ho suggests that Qu’s theory should not be regarded merely as offering a contribution to legal history. Rather, Ho argues, its jurisprudential qualities should be acknowledged. In Ho’s view, this permits a fuller investigation of Qu’s theory. More than that, Ho produces a general schema to differentiate the impact of historical and jurisprudential perspectives on the debate. In addition, he draws upon a fascinating case study of kinship concealment in Chinese law. Continue reading "CONFUCIUS, HISTORY AND JURISPRUDENCE"
Apr 15, 2025 Nina VarsavaJurisprudence
Bill Watson, The Plain Meaning Fallacy, __ B.C. L. Rev. __ (forthcoming, 2026) available at SSRN. (Feb. 1, 2025).
In The Plain Meaning Fallacy, Bill Watson exposes a problem in what he considers the dominant form of originalism today—original public meaning (OPM) originalism. OPM originalism takes the content of constitutional law to be determined by the communicative meaning of the text at the time of ratification. The problem is that the justifications for OPM originalism as a theory of constitutional interpretation apply only when OPM is plain and OPM is plain relatively rarely.
Watson takes originalism seriously, engaging carefully and thoughtfully with originalist thinkers. He charitably explicates the appeal of OPM originalism while incisively showing that this appeal holds up only when OPM is plain and so supports a much narrower purview for the theory than its adherents want to claim for it. Continue reading "Originalism’s Plain Meaning Problem"
Mar 12, 2025 Michael GreenJurisprudence
There is renewed interest in the categorization of fundamental legal relations offered by Wesley Newcomb Hohfeld. McBride’s article is about the two problem children among the Hohfeldian relations—the liberty and, especially, the no-claim. Although his article is technical, it has significant consequences concerning our understanding of the nature of permissions (legal and moral).
Before introducing his argument—and the fascinating larger debate within which it is situated—a Hohfeldian primer is needed. Here is the Hohfeldian table of legal relations with the disambiguating terms that many Hohfeld scholars now use in brackets: Continue reading "No-Claims"
Feb 12, 2025 Alma DiamondJurisprudence
Thomas Adams,
Criteria of Validity, __
Mod. L. Rev. __ (forthcoming 2025), available at
SSRN (Oct. 14, 2024).
My father used to announce weekly household chore assignments on Sundays. The five of us agreed about the relative burdens: tidying the living room was a prized assignment, and washing the dishes bordered on punishment. Our family had an unarticulated sense of propriety in chore assignments, and challenges were common. In those Sunday debates, we were evaluating chore assignments in light of family norms defining the proper use of the assignment power: that it distributed burdens fairly, for example. None of us were enterprising enough to ever question the existence of a particular chore assignment, but if we had, the matter would be resolved by the family norms defining the existence conditions for chore assignments: that my father had uttered it on a Sunday, and so on. This latter matter would be different from the first: the question of how the chore assignment power is constituted is distinct from the question of how it is properly exercised. If we ever lost sight of this distinction, we would end up confusing the norms that govern chore assignments with the norms that constitute the assignment power. We would find ourselves making exactly the kind of jurisprudential mistake Thomas Adams adeptly identifies and resolves in his new article, Criteria of Validity.
The interminable debate between inclusive and exclusive positivism is supposedly about the possibility of moral principles forming part of the conditions on the validity of legal rules. Adams incisively points us to the difference between formal and substantive conditions. He argues that while exclusive positivists correctly identify the formal nature of the conditions on validity, inclusive positivists correctly identify the moral character of many of the substantive conditions on the lawfulness of existing enactments. Both sides ignore the crucial distinction between the conditions on a legal rule’s existence and conditions on its lawfulness, leading each to its own mistakes. Adams helpfully defuses much of the debate. In so doing, he also highlights a regrettably neglected distinction between two senses of “fundamentality” in our constitutional discourse: the formal enumeration of lawmaking powers is not the same thing as the substantive regulation of those powers. Continue reading "Clarifying Legal Validity"
Jan 16, 2025 Kenneth HimmaJurisprudence
Unlike morality, law is, by its very nature, a social artifact. If morality is objective and consists of substantively necessary truths, those norms exist in possible worlds without intelligent beings. However, objective moral norms would not have application in those worlds since there are no moral agents in them. In contrast, there cannot be a system of what John Austin described as “positive law” – i.e., the social phenomena that positivism is concerned to explicate – in possible worlds without intelligent beings.
Law, then, is like a professional sports league in this important respect: if human beings ever go extinct without violence, the concrete remnants of legal systems and sports leagues in the form of documents, basketballs, courthouses, and stadiums might survive. However, legal systems and the NBA will not. Both are social artifacts constructed by our social practices that depend for their continued existence, on our continued existence.
That said, there is much that remains unclear about what law’s artifactuality tells us about its constitutive properties. In Defects and Failures in Legal Artifacts, Jonathan Crowe articulates the relationship between an artifact kind’s existence conditions and its non-defectiveness conditions. As he explains: “the non-defectiveness conditions of an artifact kind are those features that a token artifact must possess to count as a non-defective example of the kind, while its existence conditions are those features a token artifact must possess to count as a member of the kind at all.” (P. 37-38.) Continue reading "Positivism, Natural Law, and Artifact Theory"
Nov 26, 2024 Felipe JiménezJurisprudence
Mathieu Carpentier,
Against “Legal Facts”, available at
SSRN (Apr. 11, 2024).
Many legal philosophers talk about and discuss “legal facts.” Mark Greenberg, David Plunkett, and Scott Shapiro, among many others, have framed their views in these terms. The expression “legal facts” is not new—one can find it, for example, with a different meaning, in Savigny’s System of the Modern Roman Law. But its use as a way of characterizing the central debates in jurisprudence between legal positivism and varieties of non-positivist views has become quite prevalent in recent years, and many scholars—myself included—have been happy to adopt it in their work.
According to Mathieu Carpentier, this is a mistake: by framing debates about legal validity and the nature of law as debates about legal facts and their relationship to other (moral, social) facts, we are necessarily biasing things against legal positivism. This is particularly damning for scholars who are otherwise committed to legal positivism: talking about legal facts is, for these scholars, “just a self-inflicted blow” (P. 1.) By replacing the older debate about legal validity (and about whether social facts alone or also moral considerations were relevant to determine the validity of legal norms) with a debate about “legal facts,” non-positivist scholars like Mark Greenberg (and their unwitting positivist companions) have sneakily (or inadvertently) changed the subject of the debate, making it now more amenable to non-positivist responses. Continue reading "Thanks, but No Thanks"
Nov 1, 2024 Sean CoyleJurisprudence
This brilliant and highly interesting essay examines the nature of polities that place central emphasis on the rule of law and thereby upon the language of rights, a language which “smothers and extinguishes” alternative forms of ordering. (P.553.) In doing so, the language of rights erodes its own foundations, leading to a society of no rights but instead of technocratic reasoning. Rights are peremptory. Simmonds describes the sharp distinction between human goods (e.g. it would be good to do x) with rights(I have a right to do x). The distinction is not metaphysical but the result of artifice that underpins our familiar form of association. (P.553.) This does not exclude those aspects of human flourishing that are better understood in terms of goods, values, or interests, where peremptory reasoning gives way to weighing and balancing. In setting out the issue in this way, Simmonds puts a significant new perspective upon arguments he has been advancing for some time: the relationship of rights to ordinary forms of human activity, the mutability of rights discourse, and a preference for the will theory of rights over the interest theory.
Simmonds is appalled by recent trends in constitutional law, which mistake the relative importance of rights for their peremptory force. Where such force is eliminated in favour of questions of importance or proportionality, the traditional hallmarks of legality and legitimacy are significantly eroded. (P.556.) Simmonds returns to this theme at a later point in the article. Continue reading "An Epoch of Rights"
Oct 21, 2024 Carlos BernalJurisprudence
Prof. Moore claims that the interpretations of the International Covenant on Civil and Political Rights by the Human Rights Committee, the body overseeing states’ compliance with that instrument, do not consistently follow the international law rules of treaty interpretation of the Vienna Convention of the Laws of the Treaties. Those rules command treaty bodies and states to interpret treaties according to the text’s ordinary meaning, while also considering context and purpose. Instead, the Committee plays an influential role by interpreting the Covenant in an evolutionary way, according to its own normative goals.
This practice is common among other human rights bodies, such as the Interamerican Human Rights Commission, and rapporteurs. This practice gives rise to a jurisprudential question, namely, about the nature of the human rights standards that treaty bodies and rapporteurs create by means of their normative interpretations. Continue reading "Treaty Interpretation at the Human Rights Committee: Reconciling International Law and Normativity"
Sep 3, 2024 Brian BixJurisprudence
The place of legal normativity in legal philosophy is distinctive and strange: there is a widely shared (though not universally shared) view that theories about the nature of law should “explain legal normativity,” but there is sharp disagreement regarding both what “legal normativity” entails and what it would mean to “explain” it. In Shadows or Forgeries? Explaining Legal Normativity, Alma Diamond offers a helpful overview of the current literature, along with a radically different approach to the issue.
In the first part of the article, Diamond explores the three different understandings of “legal normativity” currently prevalent in the jurisprudential literature: (1) the view that law gives its subjects (“real” or “robust”) reasons for action; (2) the observation that legal language implies that law gives subjects reasons for action; and (3) the idea that law must be the sort of thing that is capable of giving reasons for action, and/or that law, by its nature, implicitly claims to give us reasons. One can see that in all three alternative approaches, the focal point is a focus on reasons for action: whether the law gives us reasons, whether it purports to give us reasons, or what follows from its being the kind of thing that might give us reasons. After Diamond provides a detailed overview and critique of the three alternatives, she argues that all three approaches “take for granted that the appropriate explanatory primitive is the notion of a ‘robust’ reason for action.” (P. 64.) Continue reading "In Search of Legal Normativity"
