Category Archives: Jurisprudence
Jul 29, 2024 Barbara LevenbookJurisprudence
The title of this review should begin, “It should go without saying.” Unfortunately, given a spate of recent fashionable criticisms of retributivism—by Martha Nussbaum, Vincent Chiao, Erin Kelly, and others—the thesis defended in Dr. Leora Dahan Katz’s article needs saying and defending. That thesis is that there is no theoretical incompatibility between commitment to a retributive justification of punishment and promoting human welfare; and there is no evidence (at least, none provided by antiretributivists) of an empirical incompatibility in adopting a retributive rationale for punishment and yet trying to promote (albeit not to maximize) human welfare (e.g., by addressing human needs before criminal conduct occurs, educating about sexual assault, or, I would add, showing mercy or compassionate release under unusual circumstances). There is yet no reason proffered to think that the retributive theory of punishment needs replacing by a welfare-oriented one.
Dahan Katz carefully disentangles various arguments contrary to her thesis: causal, psychological, conceptual. She refutes, with particular precision and philosophical sophistication, an axiological argument to the effect that retributivism is committed to viewing human suffering as having intrinsic, not merely instrumental, value, and that this is incompatible with a welfare orientation. Her refutation involves what is, given the antiretributivist literature, a much-needed reminder about the precise contentions underlying various forms of retributivism. Continue reading "It Goes Without Saying in Justifying Criminal Punishment"
Jun 26, 2024 Bill WatsonJurisprudence
Francisco Javier Urbina,
Reasons for Interpretation (Feb. 9, 2024), available at
SSRN.
Debates over legal interpretation—like those between originalists and living constitutionalists or between textualists and purposivists—are intractable and long-running, with no end in sight. A recent and welcome development in these debates has been increased attention to the background question of how to choose an interpretive method. What kinds of facts or reasons count in favor of any interpretive method? Can a better understanding of the nature of law, language, or interpretation answer which interpretive method is correct or best? Can facts about a community’s law or legal practices do so? Or must we look instead to normative reasons, i.e., to moral, political, or other reasons that favor acting in some way?
Francisco Urbina’s article, Reasons for Interpretation adds to this growing literature on how to choose an interpretive method. His answer is simple: only normative reasons can ultimately justify an interpretive method. Defending an interpretive method therefore requires reference to things like which method best satisfies deontic constraints, advances democracy or the rule of law, or promotes other values. On the flip side, one cannot defend an interpretive method simply by appealing to facts about the nature of law, language, or interpretation, nor can one defend such a method simply by appealing to facts about our law or legal practices. These facts are relevant to interpretive choices only if and insofar as normative reasons make them so. Continue reading "How to Choose an Interpretive Method"
May 30, 2024 Thomas BustamanteJurisprudence
Some influential philosophers believe that law does not give us any “real” reasons for action. Like games, fashion, and etiquette–we are told–law guides our behavior only in a weak and uninteresting way. It provides “formal,” rather than “robust” reasons for action. Legal philosophers should, therefore, find a better use of their time, by turning their attention to more relevant subjects, like morality and metaethics. This claim is not just a second-order assertion to entertain academics in philosophy seminars, but a consequential practical point. If you accept it, you may think that law possesses neither “practical” nor or “influential” authority, but only, if any, a sort of “theoretical” authority: law sometimes gives us reasons to believe in “the truth (or falsity) of deontic propositions, but it does not give reasons for action.” The only role law can play is an epistemic role: law can point at some action when we do not know exactly what to do. Even in that case, however, it only gives us reasons when we do not feel the need to deliberate carefully or think too hard. The law is given and we think fast when we think about law. The law might help us “do the thinking” when we are lazy or the matter at stake is not serious enough, but it cannot alter the actual balance of reasons. If you face a true ethical challenge or a serious practical dilemma, you’d better turn to morality instead of law.
Some nice books on the rule of law recently resisted these thoughts. It has been argued, for instance, that this mindset does not “take the law seriously” because it neglects a fundamental interpretive dimension of law, and that it fails because it disregards the law’s ethical role in our communal lives. These and other intriguing philosophical works grew under the influence of Jeremy Waldron’s contributions to the rule of law, which are spread over a sea of papers that only a very diligent researcher could recollect. I am happy that he has now published some of these works in a coherent and well-organized collection. Waldron’s scholarship on the rule of law displays even more subtly and depth when these works are read together. Continue reading "Legal Judgment as a Serious Matter"
May 1, 2024 Andrew HalpinJurisprudence
The common practice of teaching law students the rules of precedent is a misguided one, if we take seriously what María Beatriz Arriagada has to say in her article in a recent issue of Ratio Juris. In “The Two Faces of Precedent: A Hohfeldian Look,” Arriagada offers a radical alternative to the conventional portrayal of precedent as a system of regulative rules.
Arriagada’s article stimulates and provokes across a range of issues. Commencing with a preliminary reflection on the nature of analytical legal philosophy/theory (Pp. 25-26), she offers a number of insights to challenge assumptions made on the way the practice of binding precedent works, in developing her own structural analysis of precedent. At the same time, Arriagada draws on a sophisticated understanding of the Hohfeldian analytical scheme in her efforts to bring precision to a detailed analysis of the actual workings of precedent. Continue reading "The Powers of Precedent"
Mar 21, 2024 Felipe JiménezJurisprudence
Argentina has a long tradition of excellent legal philosophers, including Carlos S. Nino, Carlos Alchourrón, and Eugenio Bulygin. Pablo Rapetti is part of a younger generation of Argentine legal philosophers that is continuing this rich tradition. This is one of his first scholarly works available in English.
In this paper, Rapetti confronts Ronald Dworkin’s Anti-Archimedeanism and its application to general jurisprudence. As Rapetti explains, Dworkin’s Anti-Archimedeanism is a rejection of the distinction between first-order normative language and second-order, neutral meta-languages we could use to explore the first-order language theoretically. In simple terms, it’s impossible to go “meta:” any debate about ethics, is a first-order moral debate. All metaethical theories occupy the same space as first-order moral theories. Continue reading "In Defense of Archimedes"
Feb 29, 2024 Gilberto MorbachJurisprudence
“What could there be but amiability between two nice Jewish boys from Providence, Rhode Island?”
Those were the words of Stanley Fish during one of Ronald Dworkin’s seminars at NYU, to which he was invited by a fierce intellectual opponent: Dworkin himself. The episode is recalled by Professor Fish in an interview conducted by Thomas Bustamante and Margaret Martin, editors of New Essays on the Fish-Dworkin Debate—an excellent collection of essays dedicated to the (still neglected) exchange between Dworkin and Fish. When I say ‘neglected’, I say so because this book, recently published by Hart Publishing, is the first volume entirely dedicated to this debate that still carries important implications in contemporary jurisprudence (in contemporary philosophy tout court, I would say), from matters that range from interpretation and objectivity to the very enterprise of theorising itself. The interview—impressively illuminating and fun to read, one should add—finishes the volume and is preceded by 19 chapters divided in four parts. Continue reading "Still engaging: The Fish–Dworkin Debate"
Jan 29, 2024 Nina VarsavaJurisprudence
Scott Hershovitz’s Law is a Moral Practice is an important and compelling contribution to general jurisprudence. It is also a delight to read, written in Hershovitz’s characteristically breezy and playful style, with anecdotes and examples throughout that illuminate and animate his picture of law in memorable ways. Readers will likely appreciate Hershovitz’s light argumentative touch. He encourages us to try out seeing law his way rather than insisting that law must be seen this way or that it is the only reasonable or useful way to see law.
On the moral practice picture—which is what Hershovitz invites us to call the theory of law he sets out in Law is a Moral Practice—law and morality are not separate normative systems. The rights and duties debated in court are moral rights and duties. It is thus the province of courts to answer moral questions. (P. 183.) And legal reasoning is a special kind of moral reasoning. Continue reading "The Moral Practice Picture of Law"
Dec 19, 2023 Sean CoyleJurisprudence
This lively and concise article surveys aspects of the philosophy of corrective (classically, commutative) justice in the domain of the Law of Torts, specifically the law of negligence. It begins by outlining the central problem: that the lawyer’s concepts of equality, principle and right do not seem relatable to the moral concepts most readily attributive to citizens, those of virtue, value and good. In a beautiful analytical movement, the author demonstrates that such divisions are merely apparent, not real. In doing so, the article connects this theme to that of moral luck: the idea that we may not, in fact, be in control of the consequences of our action such, that it is, at least, problematic to ascribe legal responsibility to our negligent actions.
The idea is not new: it reaches back certainly to Aristotle’s treatment of virtue in the Nicomachean Ethics, where he observes that virtue is insufficient for happiness, for a person needs a degree of good fortune to ensure that their efforts are rewarded, and a cursed though virtuous person cannot be described as happy. This relates to the multiple possibilities within which each person moves, sometimes fortunately, sometimes not. The law of negligence represents an intervention into these situations, based not on the form of the will of the acting person, but on external freedom (borrowing terms from Kant). A few sentences are worth quoting in detail:
For corrective justice theorists, Kant’s idea of external freedom provides the normative foundation for the losses and gains that are the outcome of human interaction, and normatively grounds the restoration of these losses and gains. Because your movements and actions have undermined my choices, because in the exercise of your external freedom you have undermined mine, it is justifiable for the judge to restore this inequality and exercise coercion via the law. In other words, the illegitimate use of your force on me justifies law’s force on you. (P. 107.)
The law of negligence thus obliterates the problem of moral luck by suppressing it: it considers external freedom to be the only relevant issue facing the law, to the exclusion of the question of will. The law is essentially retrospective as it looks backward to what has already happened. Continue reading "Negligence and Civil Maturity"
Nov 16, 2023 Brian BixJurisprudence
Andrew Halpin,
The Systematization of Legal Norms: A Response to Navarro and Rodríguez,
in Jurisprudence in the Mirror: The Civil Law World Meets the Common Law World (Luka Burazin, Giorgio Pino & Kenneth Einar Himma, eds., forthcoming), available at
SSRN (Feb. 15, 2022).
A forthcoming collection, Jurisprudence in the Mirror, displays similarities and differences in both practice and theory across the divide between civil law legal systems (e.g., those of Continental Europe and Central and South America) and common law legal systems (like those of U.S. and the UK). In the book, each chapter offers civil law scholars discussing a single topic of legal theory or legal practice (e.g., legal validity, sources of law, and legal interpretation, and legal reasoning) followed by a commentary on the chapter by common law scholars. In The Systematization of Legal Norms: A Response to Navarro and Rodríguez, which will appear in Jurisprudence in the Mirror, Andrew Halpin represents the common law world, and is commenting on civil law scholars, Pablo Navarro and Jorge Rodríguez, who had as their topic, deontic logic.
By way of background, deontic logic, the logic of norms (including legal norms), is an oft-discussed topic in civil law countries, but one that has been given relatively little attention in common law countries. There are well-known complications to the project of deontic logic: e.g., norms themselves (e.g., “do not park here”) do not seem to be the sort of things that can be true or false, in which case, how is a logic of norms possible? One standard response–a response adopted by Navarro and Rodriguez (P. 7)–is to move from norms to norm propositions (e.g., “the law states: ‘do not park here’”), where such propositions do seem subject to characterization as true or false. Halpin’s argument in this piece, however, is not focused on the abstract level of whether or how logic is possible about normative matters, but rather on a more concrete level, regarding Navarro and Rodriguez’s effort to show that deontic logic is useful in understanding and developing the law (in either civil law or common law legal systems). Continue reading "A Challenge to Deontic Logic"
Oct 19, 2023 Paulo BarrozoJurisprudence
Samuel Moyn,
Reconstructing Critical Legal Studies, Yale L. Sch., Pub. L. Rsch. Paper (Aug. 4, 2023), available at
SSRN.
The CLS Movement thematized domination, contradiction, instability, interpretation, distribution, personal empowerment, interpersonal connections, and the claims of reason. Attitudinally, it had a 70s contrarian and (American) left temperament. Like all movements, networking rather than consistency was its core. Aware of the centrality of legal discourse and actors to social arrangements and outcomes, the movement sought transformative impacts beyond the privileged walls of law schools. CLS lasted as much as any movement can expect to, and it had important (especially pedagogical and curricular) successes.
That was the movement. What about CLS Theory? In Reconstructing Critical Legal Studies, Samuel Moyn offers a fast-paced and yet penetrating inventory of theoretical problems and approaches in order to recommend the “social theory of law” variant of CLS theory. Continue reading "What Critical Theory?"
