Category Archives: Jurisprudence
Dec 5, 2019 Brian BixJurisprudence
Steve Hedley, The Rise and Fall of Private Law Theory, 134 L. Quarterly Rev. 214 (2018)
In one sense, contemporary private law theory offers a wide range of approaches. For example, contract law theory includes significant theories whose focus ranges across promise, consent, property, commerce, reliance, choice, and wealth maximization, just to offer a quick sample. In tort law, one also finds theories that emphasize corrective justice as well as theories grounded on the inherent (“formalist”) nature of certain kinds of interactions. Under Steve Hedley’s analysis, however, all of these theories (and the comparable theories of other doctrinal areas within private law) in fact cluster in a narrow category, one that excludes important considerations once considered central to private law theory. In particular, Hedley’s argument is that modern private law theory tends to ignore or discount the purposes the state might try to achieve through law–the use of legislation and regulation in private law areas in order to achieve collective objectives. Hedley goes on to show how this is a relatively recent development, that older writings on private law offered a more central place for public purposes.
If, as current theories claim, private law doctrinal areas are, in fact, essentially about a particular value, or essentially about wealth maximization, or essentially about intrinsic-formalist truth, then what the state does will likely be seen as either irrelevant or ill-advised. State action will undermine the innate wisdom of the efficient market or the efficiency-increasing judgment of judges, and will distort outcomes away from what corrective justice requires. Continue reading "Private Law and Public Purposes"
Nov 8, 2019 Alma DiamondJurisprudence
The seminal scholarship of H.L.A. Hart still looms large over much of jurisprudence. There are countless commentaries, challenges, exegeses, celebrations, and elaborations on offer. For this reason, it takes an incisive mind to add to Hart’s account. That is precisely what Philip Pettit does. His recent article takes a careful look at one aspect of Hart’s Concept of Law that is often mentioned in passing, sometimes criticized, but never carefully retraced and fleshed out: his genealogy of law.
In his article, Social Norms and the Internal Point of View: An Elaboration of Hart’s Genealogy, Pettit takes on some of the lingering questions surrounding Hart’s genealogy. How do primary rules arise? Are they any different from customs, habits, or other forms of convergent behavior? What, exactly, constitutes the internal point of view? If one acts in conformance with a community out of fear for social sanctions, can one be said to occupy the internal point of view? Perhaps most importantly–what, exactly, does Hart’s origin story of law tell us about the distinctions between law and custom, norm and habit? Pettit takes us through each of these questions as he reconstructs a genealogical account of how pre-normative society (“Prenormitania”) could be imagined to have evolved into Hart’s pre-legal society (“Normitania”). This sheds new light onto Hart’s own genealogy, which of course takes Normitania as a given and focuses on how it develops into a legal society (“Lexitania”). Continue reading "The Internal Point of View Restored"
Sep 26, 2019 W.A. EdmundsonJurisprudence
The death of John Gardner this summer, at age 54, is a fearful loss. This generous, multi-talented, and much-loved man was a world-renowned figure in several fields of jurisprudence, including not only the general topic of the nature of law but also in the special theories of criminal law, tort, and sexual assault. He was one of the pillars of Oxford’s outstanding strength in the philosophy of law. What irony that one of the last of his writings was titled The Twilight of Legality.
The article itself is something of an elegy for the imminent passing away of a still familiar self-conception of the law, and of the lawyer’s calling, that some will think already archaic. This is a conception of the lawyer as not merely a service-provider, but as public citizen having a special obligation to foster legality as a public good. This obligation in turn entails seeking justice according to law, and not merely justice between parties. John was conscious that his remarks might come across as cultural criticism, but he framed his subject as a philosophical puzzle: how to reconcile the trend toward ever-greater juridification of everyday life with legality, that is, with the rule of law? “Juridification” meaning: the manufacture of laws and legally enforceable non-law norms—especially contracts binding consumers to terms set in boilerplate language dictated by corporations. Continue reading "Juridification Without Legality"
Aug 12, 2019 Barbara LevenbookJurisprudence
Everyone agrees that law has a conduct-guiding function. Moreover, most legal theorists assume that this conduct-guiding occurs, or is supposed to occur, by providing reasons for action. This very readable book is about the kind of reasons to comply with the law that law can provide and—under favorable conditions—does provide. As most of us know, officials applying legal requirements largely act as if these requirements trump (nearly) everything else for law subjects. In terms made famous by Joseph Raz, they treat law as giving rise to pre-emptive reasons to comply. These are reasons that (a) are ordinary reasons in favor of conduct and (b) exclude some opposing reasons, in the sense that they are not to be considered in a law subject’s practical reasoning. But this is not how civil disobedients and otherwise law-abiding motorists treat many legal requirements. (The latter, notoriously, consider what appear to be excluded considerations, such as the speed of traffic and the apparent likelihood that speeders will be apprehended, to reach decisions about obeying the posted speed limit.)
This gives us two views about what sort of reasons law (potentially) provides for action: (1) reasons that pre-empt competing reasons, and (2) reasons that compete with others in terms of weight. Gur carefully criticizes the two positions as inadequate before developing a refreshingly different sort of answer. The reader will be surprised to learn what this difference implies about the law and its authority. Continue reading "Reasons to Comply With the Law"
Jul 11, 2019 Brian TamanahaJurisprudence
A sure sign of a terrific book is that various readers can agree that it is illuminating and impressive but identify different aspects of the book as its most insightful and important elements. Contrasting positive reactions are a testament to the richness of a book. That is what struck me upon reading Sean Coyle’s JOTWELL review of Roger Cotterrell’s Sociological Jurisprudence. I second Coyle’s praise for this “very interesting, thought-provoking, and beautifully written book.” And I concur with his assertion that all jurisprudents will profit from reading it.
This review provides an account of what makes Cotterrell’s sociological jurisprudence so different from other contemporary jurisprudential works. While Coyle’s title, “A New Jurisprudence?,” suggests that Cotterrell has a novel take on jurisprudence, he does not explain precisely what makes it new. That is what I focus on in this review. I encourage readers to examine Coyle’s review. He concisely describes the three-part structure of the book—the role of the jurist, transnational regulation, and legal values in sociological perspective—while raising probing questions about each part. I will therefore forego providing a descriptive overview of the book. Continue reading "A Normative Sociological Jurisprudence"
Jun 18, 2019 Michael GreenJurisprudence
When people talk about the law what, if anything, are they talking about? What do their sentences mean? Much of the philosophy of law has revolved around this question. In this essay, Finlay and Plunkett offer a novel answer—and a plausible reading of the answer proposed by the foremost Anglophone philosopher of law, H.L.A. Hart.
In The Concept of Law, Hart draws a distinction between external and internal legal statements. External legal statements describe people’s beliefs, attitudes, and behavior concerning legal standards. An example is “In England, they accept as law what the Queen in Parliament commands.” Internal legal statements (ILSs), by contrast, apply legal standards and usually put their conclusions using normative language. An example is “You (legally) ought not drive over 55 m.p.h.”. Continue reading "The Semantics and Pragmatics of Legal Statements"
May 10, 2019 Andrew HalpinJurisprudence
Triantafyllos Gkouvas, The Metric Approach to Legal Normativity, Unpacking Normativity (2018).
The subject of legal normativity has attracted a great deal of attention recently. The collection in which Tria Gkouvas’s chapter appears does much to display the variety of perspectives, themes and issues that inform the current debate. Or, perhaps, current debates, given that a number of positions being expounded here and in other works on normativity over recent years tend to fix the normativity debate with a particular character prior to making a contribution to it. Gkouvas’s chapter is particularly stimulating in seeking to develop an approach that cuts across different perspectives and joins together different roles of normativity in what he presents as a “standard of normative robustness.” (P. 17.)
This approach is styled the “metric approach” precisely because it can be used to measure the normative robustness of quite different legal theories. It offers to do this by concentrating on “the Nexus space of reason-giving facts,” (P. 18) in which the different roles of action-guidance, evaluation of action, and explanation of action cohere in a single fact (Pp. 18-19). Gkouvas’s notion of Nexus is borrowed from Joseph Raz’s use of the term in From Normativity to Responsibility to indicate the connection between the normative force of a fact and its explanatory potential in a normative/explanatory nexus. Gkouvas amplifies this nexus as covering the three normative roles just mentioned of guidance, evaluation, and explanation; corresponding to “three distinct component functions (metaphysical, evaluative and explanatory).” (P. 18.) Continue reading "Repackaging Normativity"
Apr 17, 2019 Dennis PattersonJurisprudence
The interface between law and neuroscience has been a continuing source of interest for lawyers and philosophers. Many scholars have hailed developments in neuroscience as singularly transformative for our understanding of human agency. Further—it is argued—once we understand human agency from the neuronal point of view, we will be forced to alter the ways in which our practices of responsibility—especially law—regulate human conduct.
In the view of some scholars, claims for the transformative impact of neuroscientific developments on law are overblown. Taken to an extreme, those who trumpet the transformative effects of neuroscience on law have sometimes been found to suffer from the malady Stephen Morse labels “Brain Overclaim Syndrome.” Labelling the syndrome a “cognitive pathology,” Morse argues that claims made by those in the grip of the pathology make claims that cannot be conceptually or empirically sustained.
The authors of this provocative and interesting book make strong claims for the importance of neuroscience for our practices of responsibility. Their strongest conceptual claim is one they make often. In fact, the claim is the central thesis of their book. When it comes to responsibility assessment, the authors argue that the brain itself—specifically its executive functions—are “the seat of human responsibility.” (P. viii.) Continue reading "The Neuroscience of Responsibility"
Mar 14, 2019 LaToya Baldwin ClarkJurisprudence
In the spring of 2018, we learned that Facebook, the technology company we cannot seem to get away from, allowed a political analytics group to obtain Facebook users’ data. In late 2018, Facebook admitted another, even more egregious intrusion. The New York Times showed us how the technology company gave millions of users’ personal data to other companies. It also allowed other companies to read the content of personal messages made on the platform, messages users assumed to be private. CEO Mark Zuckerberg testified before Congress and Facebook ran an apology ad campaign, including airing an apology video during the NBA playoffs. In a Facebook post, Zuckerberg pledged: “We have a responsibility to protect your data, and if we can’t then we don’t deserve to serve you.” In doing so, Zuckerberg signaled its users’ importance, and their importance required privacy protection. In other words, Facebook acknowledged that when it allowed a privacy violation, it inherently disrespected its users.
In An Expressive Theory of Privacy Intrusions, Craig Konnoth explicitly argues what Zuckerberg implicitly acknowledged: privacy intrusions involve more than what is being taken or how the intruders use that information. Intrusions express something about the breacher and the breachee beyond the material consequences; according to Konnoth, the social meaning of privacy intrusions suggest the victim’s lower social status, a form of “disrespect.” Continue reading "“Who Do You Think I Am?” or What it Means When We Lose Our Privacy"
Feb 11, 2019 Sean CoyleJurisprudence
This important and impressive new book by Roger Cotterrell represents a new and original perspective on legal theory, building considerably upon the author’s previous, justly celebrated, work. It calls for a “sociological jurisprudence” (not a mere sociology of law) and for a reorientation of jurisprudential study as a form of social inquiry. The book is not likely to please all jurisprudential scholars, but all should read it and will profit from doing so.
The book is divided into three parts: first, concerning the ‘juristic point of view’; second, transnational legal theory; and third, on “legal values.” I will very briefly explore each in turn. Continue reading "A New Jurisprudence?"
