Category Archives: Jurisprudence
Sep 21, 2023 Maris KöpckeJurisprudence
Some recent debates in general jurisprudence concern so-called moral impact theories of law, chiefly in the version proposed by Mark Greenberg. Greenberg’s theory has both staunch supporters and fierce critics. There are also a good number of scholars who look on these debates with perplexity and some dismay. Greenberg provocatively portrays law as the moral impact of institutional action. He presents his moral impact formula as the “legally correct” way to figure out the law’s content on the part of practitioners. His proposal has attracted some fine scholarship denouncing ambiguities within the account, and inconsistencies between the account and legal practice.
Watson’s piece takes these concerns a valuable step further. He argues that Greenberg’s theory distorts not only what practitioners count as law, but also how they reason to that effect. This is the kind of contribution from which one can learn, positively, about legal reasoning and practice, rather than just, negatively, where someone else goes wrong. Continue reading "On Moral Impact and Legal Practice"
Aug 9, 2023 Barbara LevenbookJurisprudence
Many readers are aware that arguments by Ronald Dworkin (in particular, his argument from theoretical disagreement) and by various persons claiming that social practices cannot be normative challenge the idea that law is founded on a social convention. More than forty years ago, Gerald Postema attempted to meet these objections with a Humean-Lewisian account of foundational legal convention. Marcin Matczak contends that another, virtually overlooked, and radically different account of conventions can surmount these objections. That account can be found in the works of Ruth Millikan. Millikan’s account, he argues, can ground a foundational-convention theory of law while avoiding the pitfalls of a Lewisian account of conventions.
Matczak’s first and most developed point is that, using Millikan, arguments from the contestability of conventions (i.e., from disagreement) do not undermine the claim that legal systems rest on a foundational convention for recognition of valid law. This conclusion follows from three surprising features of Millikan’s account of conventions: (a) neither universal nor general compliance is required for a type of convention suitable for law, (b) participants need not have mutual expectations, know others’ intentions and preferences, or be aware of the purpose of a convention, and (c) conventions do not set prescriptive rules governing future conduct. These three features fly in the face of a number of orthodoxies about conventions in general or legal conventions in particular. Nonetheless, I find them appealing. Continue reading "A New Way to Rescue the Idea that Law Has a Foundational Convention"
Jul 27, 2023 Michael GreenJurisprudence
Fernanda Pirie’s Beyond Pluralism: A Descriptive Approach to Non-State Law offers a nuanced and well-reasoned assessment of the movement — among those we can call legal pluralists — to expand the concept of law to include non-state forms of social ordering. Legal pluralists are a heterogenous group and it is dangerous to make any generalizations. But Pirie has certainly identified a theme among some legal pluralists. She has two main arguments, one critical and the other constructive.Her critical argument is that legal pluralists’ conceptual project is largely motivated by normative concerns — “to counter colonialism and its legacies, and to highlight ways in which states disregard the rights and interests of Indigenous people” — that are independent of the descriptive aims of legal theory, which is “simply to clarify what law is and does.” (P. 2.) Her constructive argument is to offer — as an alternative to the pluralists’ normative concept of law — her own descriptive concept, based on a sophisticated method of conceptual analysis. Like the pluralists’ concept, her concept encompasses non-state law, but in a more limited fashion.
Let me start by offering my own (admittedly lengthy) version of the critical argument, before adding her nuance. The law of the United States has done a bad job accommodating Native American forms of social ordering. But broadening the concept of law won’t change American law practices. All it will do is redescribe as law the forms of social ordering that American law practices ignore. Indeed, there is reason to believe that conceptual reform would frustrate the pluralists’ goals. To reform American law — or even to identify it as a set of standards to be ignored or resisted — one needs to focus on what is, in fact, American law. The pluralists’ broader concept of law interferes with that focus. Continue reading "Normative and Descriptive Legal Pluralism"
Jun 9, 2023 Thomas BustamanteJurisprudence
At the outset of The Proof, in a passage that grasps the spirit of the book, Frederick Schauer writes:
It would be nice if there were world peace and nonfat bacon, but wishing won’t make it so. … Leaving to others questions about how we or the government ought to act, this book is an attempt to provide some insight into how we do – and, yes, should – confront the factual questions and controversies that are all around us. (P. 4.)
Schauer’s intriguing book analyzes a vast range of subjects related to the practice of giving and evaluating evidence, covering topics such as probability analysis, burdens of proof, statistics, testimony, lie detection, expert evidence, and scientific evidence in criminal law. But only two of the topics covered in the book will occupy my attention now: his hybrid theory of evidence, and his concern about motivated reasoning.
Let us begin with the general account of evidence provided in chapters one and two. A central concern of the book is the need to distinguish between “empirical reality” and “what some or many people prefer or wish that empirical reality to be.” (P. 1.) Evidence matters only for those who want to make sense of this distinction, and who worry about getting the truth of some matter. Evidence is what provides “a justification, or warrant, as philosophers are prone to put it, for believing that something is true – or false.” (Pp. 4-5.) It is, therefore, the “prerequisite for judgments of truth (and falsity)” about anything. (P. 5.) Continue reading "On the Value of Distrusting Ourselves"
May 10, 2023 Andrew HalpinJurisprudence
In his contribution to an academic event described as “Serious Fun: A conference with & around Schlegel!” Charles Barzun manages to meet all three expectations. Entitled The Tale of Two Harts; A Schlegelian Dialectic, Barzun’s article in the 2021 Buffalo Law Review delivers a number of serious reflections, combines them with some appropriate hilarity, and turns to the event’s honorand as an authoritative guide.
The serious stuff encompasses a comparative study of the influences of the two Harts (Henry and Herbert), an inquiry into the impact of prevailing intellectual culture on scholarship and how it is received, and an appraisal of disciplines (legal and other). It extends to a radical suggestion for legal education, observations on the CLS movement and legal historians, and constructing an academic profile. The fun is two-edged. Ultimately an invitation to have fun in one’s academic inquiries, it turns at times to poking fun at those who take themselves too seriously in their scholarly endeavours. That can easily be turned back as an injunction not to take oneself too seriously. Here too the honorand is taken to provide helpful guidance on striking the right balance.
The appeal of this article lies in the stimulating variety of topics covered and the way in which it weaves them together. The central idea to which much of the discussion returns is the “Essential Dilemma”. Barzun explains this as the problem of reconciling our “subjective” common-sense view of the world with an “objective” scientific view (P. 21). He considers that both Harts grapple with this dilemma. On one level, Henry Hart in The Legal Process is found to be pushing the objective scientific side in regarding “law as a ‘prudential’ or ‘judgmatical’ science” (P. 26), while Herbert Hart in The Concept of Law appears to be favouring the subjective side in advancing the “internal point of view” of the law (Pp. 15-16, 25). Continue reading "Hart Surgery"
Apr 5, 2023 Emad AtiqJurisprudence
In criminal cases, the prosecution bears the burden of proving the defendant’s guilt “beyond a reasonable doubt” (“BRD”). But it is not entirely clear what this standard requires. Courts routinely strike down attempts by prosecutors and judges to define (say, in terms of degrees of confidence or the probability of guilt) what counts as reasonable doubt. Moreover, pure statistical evidence is often deemed insufficient for proof beyond a reasonable doubt, even when such evidence suggests an extremely high probability that the defendant is guilty. The BRD standard’s resistance to definition or quantification invites explanation.
Sarah Moss offers an intriguing account: proof beyond a reasonable doubt requires knowledge, and knowledge is similarly resistant to definition and comes apart from probable truth. Moss’s analysis touches on several aspects of legal proof in both criminal and civil trials, but I’ll focus my comments on two suggestions that struck me as especially promising. Continue reading "Standards of Proof, Statistical Evidence, and the Stakes"
Mar 1, 2023 Sean CoyleJurisprudence
Eleanor Curran’s excellent book, Rethinking Rights, surveys the philosophy of legal rights, its history and current importance. The book’s purpose is “to examine the history of rights theory and the effects of that history and how it has been written, on how philosophers think about rights today….” (P. xiii.) Thus the book concerns, not a theory of rights, but a theory of rights theory. The book examines a number of modern theories of rights, in particular the analysis of rights due to WN Hohfeld. This analysis is employed as a means of investigating historical conceptions of rights, especially that of Hobbes; the author claims that the analysis at best only partially captures Hobbes’s sense of “‘right”. Whilst a proof of this would be an interesting philosophical result, the author does not explore until much later modern theories (of Nigel Simmonds and, perhaps, HLA Hart) which limit the Hohfeldian analysis to certain types of private law rights: Hohfeld’s analysis was never intended to capture all types of right, especially not those manifestations of rights-analysis that are premodern or early modern. Similarly, the author examines the two dominant theories of rights at the present day, the will theory and the interest theory, claiming that neither properly encompasses all kind of right. Though interest theorists and (to an extent) will theorists would resist such a claim, it could be argued that both theories represent particular regimentations of ordinary discourse about rights; rather than such theories failing to capture certain types of rights discourse (as the author suggests), there is an alternative explanation: that rights discourse itself is incoherent. Some discussion of such a possibility would have been welcome.
The main lines of argument in the first section of the book owe a debt to Brian Tierney, which is acknowledged in the Preface. And indeed the book’s second sentence repeats a history of rights propagated by Tierney, namely that the period from the late-medieval to early modernity is characterized by a shift from so-called “objective” right to the now more familiar “subjective” right. (Pp. xi, 4.) Much has been written which casts doubt upon this alleged shift, a version of subjective right appearing, for example, in Aquinas’s Summa Theologiae (II-II.57.1c) in the thirteenth century. (I do not personally subscribe to belief in the early modern origins of subjective rights; everything Grotius says of substance about rights is anticipated by Aquinas (Id. at IIII.57.1 ad 1)). The author understands the early modern writers, Hume in particular, to have “devastated” the philosophical justification of earlier doctrines of natural rights, a judgment not shared by a sizeable number of modern philosophers who expose the misunderstandings in Hume’s own premises (see Finnis, Natural Law & Natural Rights at 33-42). But a greater concern is the author’s tendency to regard Ockham, Aquinas, Grotius and Locke as belonging to a single and undifferentiated tradition, and thus for example to treat Locke as offering a “classical” theory of rights. (P. 6.) Such a classical theory is based on natural law, “which exists outside those it commands, and sets out what is morally right (and wrong)….” (P. 9.) This does not correspond to the natural law accounts of the major theorists, including Grotius and Locke, for whom natural law is not “outside” the person but is a “participation of natural law in the rational creature” (Aquinas, Summa Theologica at I-II.93.2c), and is not primarily concerned with right and wrong but with the good and the bad (Id. at III.94.2c). Continue reading "Rights Theories and Their Development"
Jan 25, 2023 Edward RubinJurisprudence
David M. Driesen,
Does the Separation of Powers Justify the Major Questions Doctrine? (2022), available at
SSRN.
The Supreme Court’s use of the major questions doctrine in West Virginia v. Environmental Protection Agency to invalidate the agency’s regulation of greenhouse gas emission has elicited widespread criticism from commentators. David Driesen’s contribution to this chorus of condemnation goes to the heart of the issue, focusing on the role that the Supreme Court has arrogated to itself in reaching this decision.
The Court’s based its decision on the relationship between Congress and the Executive, speaking at length about the structural roles of these two institutions. What it forgot, as Professor Driesen notes, is that the Court is also an institution, and that any ruling it issues about the powers of other institutions must take account its own exercise of power as well. This is, to some extent, your father’s jurisprudence, a basic insight of the Legal Process School that dominated public law scholarship in the decades following World War II. It often serves as a background consideration upon which flashier modern arguments can be built, but there is a crucial difference between assimilating an important insight and forgetting about it. The Court would be well advised to note Professor Driesen’s reminder. Continue reading "A Major Answer To The Major Questions Doctrine"
Dec 14, 2022 Felipe JiménezJurisprudence
Courtney M. Cox,
The Uncertain Judge, 90
U. Chi. L. Rev. __ (forthcoming 2023), available at
SSRN.
The received wisdom about adjudication is that all a conscientious judge needs to decide a dispute is a sound grasp of the facts of the case, sufficient knowledge of the applicable legal materials, and a theory of adjudication to go with them. In The Uncertain Judge, Courtney Cox argues that this received wisdom is incomplete. At least in some instances, she claims, (i) judges might be uncertain about whether their preferred theory of adjudication is correct, and (ii) different theories of adjudication would lead to inconsistent outcomes. In such a situation, judges face a problem of normative uncertainty.
This problem, as Professor Cox argues, is a “meta-problem.” As long as we believe judges can be coherently criticized in certain ways, the problem is real, whatever theory of adjudication or jurisprudential view we think is correct. The problem, as she writes, “floats on top” of first-order jurisprudential debates. (P. 3.) And, as she argues, in the circumstances of normative uncertainty, the judge cannot simply stick to their guns and insist on their preferred theory, precisely because they are aware of the possibility that it might be the wrong theory. Continue reading "Inescapable Uncertainty and the Judicial Role"
Nov 16, 2022 Larissa KatzJurisprudence
Aziz Huq,
Property Against Legality: Takings after Cedar Point, 109
Virginia L. Rev. __ (forthcoming 2023), available at
SSRN.
There is a nearly universal assumption in contemporary property theory that clearly defining property rights in terms of exclusion enhances rule of law virtues of clarity, stability and predictability. And there is a corresponding assumption that a rival account, according to which property is a malleable bundle of rights, undermines those same values. Judicial discretion is the main target of this prevailing view: a bundle of rights approach invites courts to configure the content of the “bundle” of rights in socially optimal ways. While there is much to be said for engineering property rights to advance social goals, this can be said against it: it leaves participants in the legal order—litigants, potential trespassers or buyers, even judges—in the dark about what the relevant rights and duties are.
In Property Against Legality, Aziz Huq provides doctrinal and theoretical grounds to doubt this dominant assumption: a stronger right to exclude, he argues, may erode legality. (P. 42.) His point of departure is a recent US Supreme Court case, Cedar Point Nursery v. Hassid. Cedar Point concerned the constitutionality of a California “take access” regulation allowing union organizers to approach agricultural workers on company property three times a day. (P. 16.) The Court concluded that “take access” legislation was an appropriation of the right to exclude third parties—a taking per se. Much of Huq’s article provides a close analysis of Cedar Point itself, which he characterizes as a sharp break from settled takings law. (Id.) He argues that the decision puts property and legality in conflict for two related reasons: (1) it undermines the methodological foundations of takings doctrine by deviating from “ordinary meaning,” (P. 20) “original understandings,” (Pp. 22-23) and “applicable precedent;” (P. 26) and (2) it will lead to more arbitrary power in future, by expanding judicial discretion and enhancing arbitrary private power to decide matters affecting the core interests of other people. Continue reading "When Property and Legality Diverge"
