Category Archives: Jurisprudence
Oct 21, 2020 W.A. EdmundsonJurisprudence
“Capital = Asset + Coding” is the axiom that serves as Katherina Pistor’s tool of analysis, to lay bare the role of law in the history of capitalism. An asset can be anything—a plot of ground, a machine, an idea, a debt, a sequence of molecules—but an asset becomes capital when, but only when, it has been “coded,” that is, when it has been endowed with specific modules of legal protection: she calls them priority, durability, universality, and convertibility.
Pistor, the Edwin B. Parker Professor of Comparative Law and Director of the Center on Global Legal Transformation at Columbia Law School, laments that “economists … have clung to the notion that capital is a physical input, one of the two factors of production, when in fact, capital has never been about a thing, but always about its legal coding; never just about input and output, but always about the ability to capture and monetize expected returns.” (P. 116.) Her book has won awards already, including two “best books” citations from the Financial Times. The financial press is taking heed, and legal academics should, too. This wonderful book is destined to inform the difficult way ahead, as global capitalism’s second crisis in a dozen years overwhelms us. Continue reading "The Mother of All Subsidies"
Sep 22, 2020 Brian BixJurisprudence
Dan Priel,
The Philosophy of Law for a Naturalist: An Introduction to Artificial Law Theory, Osgoode Legal Studies Research Paper (June 12, 2020), available at
SSRN.
In this provocative article, Dan Priel offers a naturalist approach to thinking about law. This naturalist approach, in turn, leads to two ambitious lines of arguments: first, rejecting many traditional jurisprudential inquiries, and, second, providing a highly unconventional view about the relationship of morality and law.
Naturalism (not to be confused with “natural law theory”) has been defined in different ways. Early in the article, Priel offers a useful (if, as he notes, imprecise) summary: naturalism is the view that “explanation[s] of [human] actions should be continuous, and of the same kind as, explanation of the nonhuman part of nature.” (P. 2.) Naturalism within legal philosophy has, for some time, been associated with Brian Leiter. However, Priel criticizes Leiter’s approach as being little more than an argument for (existing) empirical work on law, while offering no tasks for legal philosophy. As will be noted, Priel agrees that naturalism rejects some traditional jurisprudential topics, but he believes that there remains room for, and, indeed, a need for, a distinctively naturalist jurisprudence. Continue reading "Dan Priel’s Naturalism"
Aug 4, 2020 Barbara LevenbookJurisprudence
There is a default theory of legal content that many legal positivists – and non-positivists – accept. It is that the legal contents of texts, or of authoritative pronouncements in general, are, or match, their full (that is, pragmatically-enriched) linguistic contents. Nine years ago, Mark Greenberg published an influential article called The Standard Picture and Its Discontents, attacking what he called the “Standard Picture” predominant among legal theorists. The aforementioned default theory of legal content is one of what Greenberg called the Standard Picture’s “prongs.” Among Greenberg’s objections to this theory, which is sometimes referred to as a “communicative content theory” of law, is that it cannot account for aspects of familiar legal practice. Dale Smith refers to this type of objection as a “practice-based objection.” (He notes that Greenberg is not the only legal theorist to raise a practice-based objection to the communicative content theory.) Practice-based objections, from Greenberg and others, depict an apparent gap between communicative content and legal content. This gap is especially troublesome for many theorists of statutory legal content. In particular, the gap poses a problem for anyone attracted to the idea that statutes are communications from the legislature and ought to be understood and applied the way ordinary communications are.
In this intriguing article, Smith is both friend to a communicative content theory and foe. He is a friend by demonstrating, again and again, how practice-based objections raised so far can be accommodated by such a theory. But he turns foe with his consideration of the practice of using what he refers to as “retrospectively operating modifier laws.” His thesis is that practice-based objections to date are not fatal to a communicative content theory of law, but that there is a practice-based objection that may be. Continue reading "Greenberg Got it Wrong: What Legal Practice Does and Does Not Reveal About Legal Content"
Jul 7, 2020 Michael GreenJurisprudence
It is curious that Anglophone philosophers of law (many of whom have had some training in logic in conjunction with the classwork required for a Ph.D.) ignore deontic logic — the branch of logic that deals with propositions that employ normative concepts like obligation and permission. The point is not that deontic logic can answer problems in the philosophy of law, but that it can help reveal them. This very short paper by Robert Mullins is a wonderful example. It concerns the apparent incompatibility between a commonly accepted inference rule in deontic logic, deontic detachment, and the core principle of positivism, the social thesis.
According to deontic detachment, the following reasoning is valid (if the premises are true, the conclusion must be true): Continue reading "Deontic Logic and the Philosophy of Law"
Jun 10, 2020 Larissa KatzJurisprudence
As a private law theorist, I have been captivated recently by the work of public lawyer Thomas Poole on the concept of prerogative. Poole developed his account most fully in his analytically brilliant and deeply learned book, Reason of State: Law, Prerogative and Empire (Cambridge 2015). Poole has continued to refine his thinking about the concept of prerogative in more recent work, including The Strange Death of Prerogative in England, in response to a spate of recent cases in England. What is so compelling and illuminating about Poole’s work on prerogative for a private law theorist? Private law theorists have long assumed that the most philosophically interesting questions in the field concern the structure of interpersonal rights and duties—what we owe each other. As a group, we have tended to stick to those areas of doctrine, like tort and contract, that repay close attention to such structural questions. Other areas of private law doctrine, especially property and equity, have not been not well-integrated into accounts of private law focused on interpersonal relations. That may be because they raise questions and invoke concepts outside the core of private law theory today. Equity, in particular, challenges the sufficiency of understanding private law as a framework of predictable, durable and standardized rights and duties. I may have a property right in law only to find that equity directs me to exercise it in ways the law does not require of me—or be held in contempt. I may have a contractual right to your performance of a contract but equity may prevent my enforcing it when I have led you to act to your detriment on the belief that you need not perform. Equity appears, then, to be a cluster of doctrines that lie on the outer edges of private law.
One way to chart the path forward to a more complete and unified understanding of private law –one that includes equity—is to look at how, in the context of public law, Thomas Poole has worked out the idea of the prerogative in institutional, conceptual and normative terms. The concept of prerogative, Poole argues, is best understood not as the bundle of prerogative powers that public lawyers of old enumerated nor the purely political conception of emergency powers outside the grip of law, but rather as a constitutional idea of prerogative: a distinct claim of imperative authority associated with guardianship of the State and that functions to stabilize and maintain the integrity of the legal order itself. Continue reading "Authority in Our Time: Accounting for the Concepts of Prerogative and Equity in the Legal Order"
May 13, 2020 Andrew HalpinJurisprudence
The subject of legal reasoning has stimulated an enormously wide variety of books and essays, articles and comments, offering the reader systematic exposition, technical illumination, practical guidance and critical commentary. The reader is clearly unsatisfied. The production of material continues without any sense that the latest contribution is about to close the debate and complete our understanding. Maks Del Mar’s recent book is not likely to provide the last word on legal reasoning. It does provide a novel perspective on where the elusiveness of legal reasoning might lie. It seems that we cannot capture the subject because however learned we might become in the techniques of reasoning with the law that we have, there is always the problem that imaginary laws might be invoked to disturb the precedents and doctrines, the templates and patterns, into which we fit existing legal materials.
That is a gross oversimplification and mischaracterization of Del Mar’s book, in at least three respects. First, for Del Mar, an imaginary realm of law does not exist outside of existing legal materials but rather legal materials possess an imaginative capacity. Secondly, legal reasoning does not get subverted by stretches of the imagination; instead, the imagination is a core faculty employed in legal reasoning. And thirdly, despite the limitation suggested by its subtitle, this is not simply a book about imagination, nor simply a book about legal reasoning. Continue reading "Imaginary Laws"
Apr 17, 2020 Edward RubinJurisprudence
Although we have made substantial progress since the late nineteenth century in supervising the process by which sausages are made, we have failed to make any significant progress in supervising the procedures used by legislatures. Stephen Gardbaum recommends that we remedy this situation. He argues that courts should use the Due Process Clause to review the procedures by which laws are enacted, as well as reviewing the substance of the enactments. His title indicates that he is building on the path-breaking article by Hans Linde, Due Process of Lawmaking, published more than forty years ago. Professor Gardbaum breathes new life into the idea and invites us to think about a promising and innovative means of improving our much-troubled system of government.
Procedural due process, Professor Gardbaum argues, demands that all branches of government–legislative, executive and judicial–follow constitutional decision-making procedures in addition to reaching constitutionally acceptable results. The applicability of this principle to executive and judicial decisions is unchallenged, but the prevailing view is that it does not apply to legislation. Perhaps this is because legislation is promulgated by popularly-elected officials and thus regarded, contrary to Burke, as an act of will rather than an act of reason. Professor Gardbaum doesn’t challenge this view; his point is that actions carrying out the will of the legislators can also suffer from procedural defects that demand attention and correction. He offers two examples: if legislators decide between alternative proposals by flipping a coin, and if they enact legislation in return for campaign contributions. These examples reflect two general categories of procedural defects: legislating without sufficient reasons and legislating for the wrong reasons. Professor Gardbaum refers to the first category at several points. It includes a failure to state the rationale for a statute, the failure to provide any empirical basis for it, or the failure to subject it to open consideration and debate. But the primary focus of his article is on the second category–legislating on the basis of the wrong reasons, and specifically ones that are wrong because they are corrupt. Continue reading "Should Courts Strike Down Improperly-Enacted Law?"
Mar 17, 2020 Gilberto MorbachJurisprudence
Jeremy Waldron,
Rule by Law: A Much Maligned Preposition, available at
SSRN.As Jeremy Waldron well states in his article, Rule by Law: A Much Maligned Preposition, “there are lots of tough questions surrounding this one little phrase–‘the rule of law.’” (P. 2.) There is indeed a lot of controversy surrounding this political ideal, this little phrase. And this controversy gets a lot more complicated when we change a little preposition in this little phrase and start to distinguish between the rule of law and the rule by law: the first, taken as a synonym of legality; the latter, a caricature of it. Waldron seeks to discuss it all, and to show that maybe the rule by law is a lot more demanding than it seems to be.
First, though, some definitions. Although it is impossible to arrive at a canonical definition, it is also safe to assume, for analytical purposes, that the rule of law is—contested as it might be, and broadly understood—one of the many values in (liberal) political morality, according to which people shall be governed by clear, stable, general norms; “a situation in which the government is subject to legal limitation and constraint.” (P. 18.) Contrasted to that, some take the rule by law to be a degraded version of this ideal; as Waldron states: “the use of law as a tool or instrument to serve the ends of power in an authoritarian regime.” (P. 3.) But is that warranted? Continue reading "Are The Rule of Law and the Rule by Law Really That Different?"
Feb 18, 2020 Sean CoyleJurisprudence
In this very interesting article, the authors apply some insights from the philosopher Michael Oakeshott to certain issues of constitutional law, with specific reference to Oakeshott’s version of conservatism. Specifically, Oakeshott believed that a conservative disposition is necessary in the face of two related problems: (1) the conservative wishes to protect not the past but the present, for present practices, with all their imperfections, contain important principles and achievements of justice which should not be lightly exchanged for future uncertainties; and (2) appetites for change can be dangerous, for the change that one intends to bring about is always less than the total change one ends up making—change is unpredictable and very often throws up new problems, or permutations of old ones. Conservatives are not resistant to all change, or even to change in principle, but they mistrust change and are cautious about tampering with existing practices. Defined this way, a conservative disposition is not to be identified (certainly not in an unqualified way) with either the outlook of the British Conservative Party, or various political parties or movements around the world that are described as ‘conservative’. Conservatism is not essentially right-wing, and shares few characteristics with so-called neo-con groups, and few political movements if any properly understand the conservative disposition and its underlying concerns.
The authors of the present article echo these points, which they develop within the specific context of UK Constitutional Law. “Conservatism—and especially a conservative disposition—is poorly understood within constitutional thought.” (P. 527.) The initial part of the article thus spells out the various characteristics of a conservative disposition, observing that it encompasses “ideas about human nature, society, politics, law and government.” (P. 530.) The starting point for conservatism’s protection of existing arrangements (including, centrally, political arrangements) is that our present practices, however accidentally they may have come about, are founded upon human reason; upon efforts that are essentially collaborative and thus promoting of at least a basic level of peace, and embody stability over time, considered as a human good in its own right. The authors identify three components of a conservative disposition: traditionalism (which corresponds roughly to one above); skepticism (which roughly corresponds to two); and a third component, ‘organicism’, the view that “society [is] an organic whole that develops within the context of inherited institutions.” (P. 532.) ‘Organicism’ can be described (though the authors do not formulate it in these terms) as a concern for the protection of civil society considered as an ongoing, culturally rich form of human ordering, to some extent autonomous with respect to changing governmental regimes, that is a vital source of human flourishing. If people did not spontaneously act (or forbear to act) out of civility, society would be an impoverished and dangerous place. Continue reading "A New Conservative Theory of Constitutional Change"
Jan 15, 2020 Thomas BustamanteJurisprudence
More than forty years after his first take on the value of the rule of law, Professor Joseph Raz, in The Law’s Own Virtue, has recently revised his original view and given us an insightful and very sophisticated account of this political virtue, developing a framework that connects his theory of law with his moral philosophy and his neoclassical account of intentional actions.
Previously, Raz held that the rule of law was a formal value which concerns the particular ways by which the law must guide the behavior of its subjects. The rule of law was understood in a narrow way as “essentially a negative value” which was “designed to minimize the danger created by the law itself.” It was a value about what the government and its officials cannot do when they exercise power over their subjects. On this account, the point of the rule of law is to constrain government so the law can comply with its guiding function and enable the people it governs to go on with their lives and commit to valuable pursuits: “We value the ability to choose styles and forms of life, to fix long-term goals and effectively direct one’s life towards them.” And the basic idea of the rule of law is that governmental action, including adjudication and any act which produces particular directives, is subjected to “general, open, and stable” norms. One of the basic requirements of the rule of law is that “the making of particular laws should be guided by open and relatively stable general rules.” Continue reading "The Rule of Law and the Government’s Role in Our Lives"
