Category Archives: Jurisprudence
Oct 17, 2022 Brian BixJurisprudence
Paul Miller offers a manifesto for an approach to private law—more precisely, for theories of doctrinal areas within private law–that is both traditional and quite new. In his new article, The New Formalism in Private Law, he names the approach, “New Private Law Theory” (and I will follow his practice of abbreviating it “NPL”). It is grounded on a rejection of the sort of reductive, cynical, and skeptical approaches to law and legal rules associated with American Legal Realism, and it promotes a more internal (less instrumental) understanding of law.
Miller offers the following as the essential positive claim of NPL. “[P]rivate law contributes to the law’s wider essential function: providing practically reasonable normative guidance to its addressees through authoritative resolution of conflict and coordination issues that face a political community, thereby enabling the community to realize its aspirations to legality.” (P. 178, emphasis omitted.) NPL focuses on both form and substance, and on both the institutional nature and the normative claims of (private) law: i.e., that “legal systems are historically iterated, constructed normative systems, and that these systems claim practical authority over their addressees.” (P. 179.) Continue reading "The New Formalism"
Sep 15, 2022 Robin KarJurisprudence
Many philosophers of the private law could profit from a close read of a new article by Professor Larissa Katz entitled Equitable Remedies: Protecting “What We Have Coming to Us.” The article draws a distinction between “what is ours” (the content of which is defined by various bodies of private law like property and contract, according to Katz) and “what we have coming to us” (which is, roughly, what we would have if we were to have full access to what is ours, without obstruction, diversion, or expropriation from anyone with notice).
According to Katz, private law obligates parties to respect what is ours, in part by offering legal remedies that allow us to hold others accountable to pay for losses associated with their failures to meet those obligations. Private law gives us normative powers, which can help us define what is ours, thus helping us to plan our lives and exercise our liberties. There is, however, always a gap between what is ours and what we have coming to us because enjoyment of what is ours sometimes depends on how others act or exercise their normative powers. This gap cannot always be closed by standard legal remedies, insofar as they only compensate for losses. Professor Katz’s thesis is that many equitable remedies from diverse areas of private law can be understood in a unified manner as seeking to close that gap by preventing others (sometimes even third parties who are not subject to standard legal remedies) from obstructing, diverting, or expropriating what is ours, thereby protecting what we have coming to us. Continue reading "An Interest In What We Have Coming to Us"
Aug 3, 2022 Barbara LevenbookJurisprudence
In this book, The Making of Constitutional Democracy: From Creation to Application of Law, Paolo Sandro has done what few in recent common law scholarship have attempted: presented a persuasive case for the interconnection between some issues in high legal theory and democratic legitimacy. His excursion into legal theory is needed to argue against, among others, Kelsen, legal realists, critical legal scholars, and interpretivists that there is a meaningful distinction between law-applying and law-creation and that the former is not always the latter. But these points are also pivotal to democratic theory. His case, briefly put, is this: if there is only constant creation of meaning in legal processes, then there is no such thing as applying the (ex ante) law, and law could not fulfil its function of conduct guidance in complex societies. Also, there would be no way that people rule themselves, even through their representatives, for whatever is legislated or democratically created does not (ex ante) determine the results of individual cases. So there could be no real collective autonomy, undercutting democratic legitimacy.
Sandro is discussing law-application not only by officials, but by private law subjects as well. The book is a real learning experience. If you have accepted some of mainstream legal or political thinking, get ready to have several of your received ideas challenged on a sophisticated level. Continue reading "(Almost) Everything You Always Wanted to Know on Legal Theory, Democratic Theory, and their Connection"
Jul 5, 2022 Thomas BustamanteJurisprudence
David Dyzenhaus, The Long Arc of Legality: Hobbes, Kelsen, Hart (2022).
David Dyzenhaus argued in the last paragraph of The Long Arc of Legality that, except for the rare cases where there is a need for a revolution, “our moral and legal lives are completely and utterly intertwined.” (P. 422.) But this apparently radical endorsement of natural law theory is nuanced because Dyzenhaus has only a pragmatic morality in mind. In agreement with Hart, he rejects the assumption that legal philosophers should choose between the metaethical positions of moral realism and emotivism (P. 370) and suggests, instead, that the law is a kind of “laboratory for the testing of moral ideals.” (P. 387.)
A distinctive and interesting part of Dyzenhaus’s contribution is his explanation of how that pragmatic morality relates to law. To understand the law’s authority, Dyzenhaus puts legal subjects, instead of officials, at the center of legal inquiry. Jurisprudence’s “first question” becomes the question that legal subjects are entitled to ask from the legal system’s internal point of view, that is, the question “But, how can that be the law for me?” (P. 2), which Bernard Williams described as the “Basic Legitimation Demand” of any political society. A modern state must satisfy that justificatory requirement because that is what shows that such state “wields authority, rather than sheer or unmediated coercive power, over those subject to its rule.” (P. 213.) Continue reading "Interpretive Authority and the Kelsenian Quest for Legality"
Jun 2, 2022 Andrew HalpinJurisprudence
Often an article or essay proves valuable for the points it directly advances in promoting the author’s view on the subject matter it covers. Sometimes, additional value is produced because the piece indirectly stimulates fresh thinking on that subject matter, irrespective of whether following those novel lines of thought proves to be compatible with or at variance with the author’s own viewpoint. In these terms, Kevin Toh’s essay on Legal Positivism and Meta-Ethics in The Cambridge Companion to Legal Positivism provides double value.
Toh is directly concerned to raise a number of important points related to the different levels legal theory operates on, and how an appreciation of meta-ethics might inform our understanding of the relationships between these levels and the fruit that might yield. Meta-ethics may assist both by analogy (P. 566), and by contributing its own perspective on an appropriate delineation of morals so as to inform legal theory’s own preoccupation with the law/morality connection or divide (P. 570). That latter contribution is expanded by Toh into an endorsement of wider philosophical collaboration between different disciplines. And it is this use of “resources made available by other areas of philosophy and related empirical disciplines” (P. 570) that shapes Toh’s own tentative contribution to understanding the nature of law. (P. 581.) Continue reading "Taking Control With Meta"
May 2, 2022 Maris KöpckeJurisprudence
Perhaps it was the French Revolution that set it free. Since then, it haunts constitutional thought. It lures writers through a dubious promise of democratic credentials. It looms large in recent accounts of constitutional legitimacy. They have sought to “domesticate” (Pp. 796, 803; also P. 810) the beast by subjecting it to liberal and democratic constraints. But the beast resists such domestication, argues the paper. Appeal to constituent power as the source of constitutional legitimacy is deeply at odds with constitutionalism’s commitments to rights and the rule of law. One cannot both have the cake and eat it. It is either will or reason at the foundations of law. Such is the tension the author confronts us with.
This rich and insightful piece elicits reflection on a host of fundamental questions of legal and political theory. It will interest you whether you are concerned with the limits of democracy, the bootstrapping character of basic legal rules, principles of constitutionalism, or even the nature of self-determination and autonomy. It is accessible without specialist knowledge of constitutional theory. The work is more revolutionary than its title suggests. Crudely put, “Inherent Constraints on Constituent Power” argues that there are no inherent constraints on constituent power, and provides reason to think that there is no constituent power either. Let me explain. Continue reading "The Beast of Constituent Power"
Mar 29, 2022 Sean CoyleJurisprudence
In Reevaluating Legal Theory, Jeff Pojanowski addresses a central question of jurisprudence, that of whether a careful theory of what the law is, involves value judgments concerning what the law ought to be. (P. 1460.) In various forms, this question has been asked by philosophers from the beginning of the Western intellectual tradition. Thus, for example, Aquinas considers whether a law that is judged to be unjust (out of reasonable order) can continue to bind in conscience due to the normal authority of legal commands (Summa Theologiae I-II.95.2c; 92.1 ad 4; 96.4c). His answer is subtle and complex. Pojanowski’s article is similarly subtle and complex, and makes many useful points, though as indicated below, some of these could be taken further in future work.
Pojanowski’s article begins with a brief survey of recent responses to the central question by Oxonian philosophers, but his interest is primarily in the work of Julie Dickson. Dickson argued that the key to the controversy about the nature of law lies not in contrasting evaluation and description (i.e. that laws can be described without any evaluation), but in distinguishing types of evaluation: some evaluation (that centring upon the participants in a legal system in evaluating what is significant or important to them) is necessary, as distinct from moral evaluation, which is not. Pojanowski argues that such debates about the ‘dividing line between jurisprudence and normative philosophy’ (P. 1464: but does this not capitulate already to the positivist position?) actually turn upon broader moral considerations of ‘what is good for persons’ and ‘competing ways of thinking about society’, thus revealing something of our moral and metaphysical commitments. (Id.) Continue reading "Jurisprudence Reevaluated"
Feb 18, 2022 Emad AtiqJurisprudence
There are some views in philosophy that have the reputation of being intuitive or widely held. One such view is legal positivism. The positivist maintains that what fundamentally determines the legality of rules is purely social facts—for example, people’s acceptance of the rule—and, moreover, that the moral wickedness of a rule does not necessarily diminish its legality. Positivism is standardly assumed to be more intuitive and widely accepted than competing, non-positivist views. But the basis for this assumption is rarely (if ever) made explicit. Until recently, there has been very little empirical work investigating general intuitions about law’s nature. Two recent studies, however, report results that challenge the conventional wisdom about convergence and controversy in jurisprudence.
In The Folk Concept of Law: Law is Intrinsically Moral, Brian Flanagan & Ivar Hannikainen test whether the “folk” concept of law is more compatible with positivism or non-positivism. They surveyed 390 college students, who had not yet taken any courses in legal philosophy, about their willingness to attribute legality to rules that, while socially accepted in a hypothetical jurisdiction, are morally wicked. In one of their experiments, F&H presented subjects with a society called “Figuria” where citizens are law-abiding and follow a constitution that “assigns unfettered legislative power to an elected assembly and omits any mention of individual rights.” The assembly, prompted by a belief in white supremacy, passes a statute banning interracial marriage. Subjects were asked to indicate their level of agreement with various statements regarding the statute’s legality, including “there is a sense in which [the statute] is clearly a law” and “ultimately, when you think about what it really means to be a law, you would have to say that [the statute] is not truly a law.” They report the following results: Continue reading "Disagreement about Law and Morality: Empirical Results and the Meta-Problem of Jurisprudence"
Jan 19, 2022 Nina VarsavaJurisprudence
In Democratic Law, Seana Valentine Shiffrin argues that law, in its full and proper form, is essentially democratic. Shiffrin analyzes the relationship between law and democracy in intimate detail, and explores implications of that relationship for some familiar doctrinal problems in the U.S. context. The book is based on Shiffrin’s Tanner Lectures, which she gave at Berkeley in 2017, and includes an introduction by the editor of the volume, Hannah Ginsborg—which provides a beautiful orientation to the book—as well as lively and incisive commentaries from Niko Kolodny, Richard R.W. Brooks, and Anna Stilz, and a vigorous reply to them from Shiffrin.
In the first of two Parts, Shiffrin argues that each of us has a duty to recognize one another’s equal moral status and to express this recognition to one another. Her argument here builds on Rawls’s account of our fundamental moral equality as persons. For Shiffrin, we are both entitled and obligated to communicate our recognition of one another’s equality—not only discursively (since, as Brooks elaborates in his commentary, talk is cheap) but also through our commitments and actions. Continue reading "The Democratic Disposition of Law"
Dec 13, 2021 Alma DiamondJurisprudence
Rob Mullins,
Presupposing Legal Authority, __
Oxford J. Legal Stud. __ (forthcoming), available at
SSRN.In Essays on Bentham, Hart noted the importance of what he termed “authoritative legal reasons” to legal theory. In this idea–of reasons that apply to us independently of their content and in that special modality of foreclosing our normal deliberation–lies the “embryonic form” of legality. More simply put: law necessarily operates in the register of authority. This insight represents a foundational commitment held in common between various strands of legal philosophy, in part because of what Brian Bix has identified as a “hermeneutic turn”: theorists accept that an understanding of law must take account of the distinctive way in which it engages human agency and rational consciousness. Authority, as a practical concept, promises such an understanding of law.
The idea of law as a matter of authority plays an especially central role in positivist legal theory, in no small part due to Joseph Raz’s influential work on the topic. Raz and his many followers argue that law necessarily claims moral authority. We can see this, it is generally explained, in the deontic language used by legal officials (especially judges). And such claims to authority, Raz insisted, should be understood in moral terms. Much of recent positivist legal theory grapples with this final thesis: how can legal claims to authority be understood in moral terms, and what would that mean for the separation thesis? Rather less attention has been devoted to the first part: that law necessarily claims authority. In his forthcoming article, Presupposing Legal Authority, Rob Mullins calls this the “claim thesis.” He offers a long-overdue, thorough, and incisive scrutiny of the thesis. In doing this, he also invites us to revisit our understanding of the authority of law. Continue reading "Revisiting Law’s Claim of Authority"
