dunnettreader + philosophy_of_law   97

Brian Z. Tamanaha - Legal Realism in Context :: SSRN in Elizabeth Mertz, ed., New Legal Realism, Vol. 1 (Cambridge UP, 2015 Forthcoming)
“We are all realists now,” it is frequently said, yet what legal realism was about remains vigorously debated by legal theorists and historians. The debate continues because the jurists we think of as core legal realists were not members of a group. Karl Llewellyn said this multiple times in his famous essay detailing realism. (..) Contemporary scholars who make assertions about what the legal realists stood for often fail to account for these passages. Legal realism.. is best understood ... in terms of 3 overlapping complexes of ideas that emerged in the late 19thC and had become widespread by the time of Llewellyn’s article. [(1)] that society was changing rapidly while law, understood as a means to achieve social ends, lagged badly behind, producing an urgent need for legal reform. [(2)] the growing refrain among legal academics that newly developing social sciences should be applied to enhance an understanding of the actual facts surrounding law. [(3)] a vocal backlash against judges for impeding reform, including charges that they were importing class bias into their legal decisions, prompting a broader acknowledgement that the background social attitudes of judges play a role in their decisions. These three themes were interpenetrating: the popular dissatisfaction with the failings of law was manifested in criticism of courts, and resort to social science was the favored academic solution. (..) Realism characterized the new modern age of thinking about law, and it ran much earlier and more broadly than is now commonly recognized. -- PDF File: 47 -- Keywords: Legal history, Jurisprudence, law and the humanities, law and the social sciences
chapter  SSRN  intellectual_history  intellectual_history-distorted  19thC  20thC  philosophy_of_law  jurisprudence  legal_theory  legal_reasoning  legal_history  social_sciences  legal_realism  legal_reform  change-social  change-intellectual 
october 2015 by dunnettreader
Brian Z. Tamanaha - The Third Pillar of Jurisprudence: Social Legal Theory :: SSRN - William & Mary Law Review, Vol. 56, 2015
Jurisprudence is generally thought to consist of two main classical rival branches — natural law and legal positivism — followed by a bunch of modern schools — legal realism, law and economics, critical theory, legal pragmatism, etc. In this essay I argue that three main branches of jurisprudence have existed, and battled, for centuries, not two, but the third goes unrecognized as such because it has traveled under different labels and the underlying connections have been clouded by various confusions. The core insights and focus of this third branch, what I call “Social Legal Theory,” trace in a continuous thread from Montesquieu, through historical jurisprudence, sociological jurisprudence, and legal realism, up to the present. This third branch, I argue, provides a contrasting/complementary perspective, in conjunction with natural law and legal positivism, which rounds out the full range of theoretical angles on law: natural law is normative; legal positivism is analytical/conceptual; and social legal theory is empirical. (Among a number of clarifications, I answer the common objection that empirically-grounded theories are not sufficiently theoretical.) The conventional jurisprudential narrative is redrawn in this essay in a way that exposes unseen connections among theoretical schools and brings into focus critical issues about the nature of law that currently are marginalized by natural law and legal positivism. -- Pages in PDF File: 44 -- Keywords: Jurisprudence, legal philosophy, law and society, legal realism, legal development, legal history
article  SSRN  philosophy_of_law  jurisprudence  legal_theory  legal_reasoning  positivism-legal  natural_law  legal_realism  legal_history  sociology_of_law  social_order  social_theory  change-social  intellectual_history  intellectual_history-distorted  18thC  19thC  20thC  Montesquieu  pragmatism  downloaded 
october 2015 by dunnettreader
Brian Leiter, Michael Sevel - "Philosophy of Law" -- ENCYCLOPAEDIA BRITANNICA, 2015 :: SSRN
Michael Sevel, University of Sydney - Faculty of Law -- A brief and general introduction to the philosophy of law. The article includes a history of the philosophy of law from Ancient Greece to the present, and a discussion of the primary questions and arguments of the field.-- Pages in PDF File: 29 -- Keywords: Jurisprudence, philosophy of law, legal positivism, natural law theory, legal realism -- downloaded pdf to Note
philosophy_of_law  intellectual_history  jurisprudence  legal_history  legal_realism  natural_law  positivism-legal  downloaded 
october 2015 by dunnettreader
Forum - Samuel Moyn's "Christian human rights" - overview page | The Immanent Frame
In 2010, Samuel Moyn published The Last Utopia: Human Rights in History, which offered an alternative historical explanation for the origins of human rights. He rejected narratives that viewed human rights as a long-term historical product of the Judeo-Christian tradition, The French Revolution, or Enlightenment rationalism, arguing that human rights as it is now understood began to emerge only during the 1970s. Prior to this, according to Moyn, rights were connected to the nation-state and had nothing to do with an international standard of morality or justice. In addressing critiques of The Last Utopia, Moyn has given considerable attention to the relationship between human rights and religion, conceding that there is, undoubtedly, a relationship between Christianity—Catholicism in particular—and human rights, but arguing that the “death of Christian Europe” by the 1960s “forced a complete reinvention of the meaning of human rights embedded in European identity both formally and really since the war”. Contributors offer their thoughts on Moyn’s article “Personalism, Community, and the Origins of Human Rights,” which became a central focus (see excerpt) in his forthcoming book, Christian Human Rights (University of Pennsylvania Press, 2015). Contributors also respond to “Christian Human Rights,” the introductory essay written for this series. -- downloaded pdfs but their footnotes and links don't work, so collected them in Evernote them
books  intellectual_history  narrative-contested  bad_history  intellectual_history-distorted  religious_history  church_history  moral_philosophy  theology  human_rights  natural_rights  medieval_philosophy  Europe-Medieval  Enlightenment  Enlightenment_Project  Enlightenment-ongoing  French_Revolution  IR  Europe  20thC  WWI  WWII  entre_deux_guerres  post-Cold_War  post-colonial  nation-state  genocide  Holocaust  UN  international_law  natural_law  law_of_nations  law_of_the_sea  justice  jurisprudence  philosophy_of_law  political_philosophy  political_culture  democracy  equality  liberty  Christendom  Judeo-Christian  links  Evernote 
july 2015 by dunnettreader
Andrew S. Gold, Paul B. Miller, eds. -- Introduction: Philosophical Foundations of Fiduciary Law (Oxford UP 2014) :: SSRN
Andrew S. Gold, DePaul University, College of Law and Paul B. Miller, McGill University Faculty of Law -- This Introduction outlines core questions of fiduciary law theory and provides thematic discussion of the contributions to the volume. The volume includes chapters by Richard Brooks, Hanoch Dagan, Evan Criddle, Deborah DeMott, Avihay Dorfman, Justice James Edelman, Evan Fox-Decent, Tamar Frankel, Joshua Getzler, Andrew Gold, Michele Graziadei, Sharon Hannes, Genevieve Helleringer, Ethan Leib, Daniel Markovits, Paul Miller, Irit Samet, Robert Sitkoff, Henry Smith, and Lionel Smith. -- PDF File: 17 -- Keywords: Philosophy of Law, Legal Theory, Philosophy of Private Law, Private Law Theory, Fiduciary Law, Fiduciary Relationships, Fiduciary Duties, Fiduciary Remedies, Duty of Loyalty, Duty of Care, Duty of Candour -- downloaded pdf to Note
chapter  books  SSRN  philosophy_of_law  jurisprudence  legal_theory  legal_reasoning  fiduciaries  principal-agent  agents  duties-legal  rights-legal  trust  trusts  duty_of_care  duty_of_loyalty  conflict_of_interest  legal_remedies  law-and-economics  law-and-finance  Roman_law  civil_law  common_law  property  inheritance  family_law  downloaded 
july 2015 by dunnettreader
David Millon - The Single Constituency Argument in the Economic Analysis of Business Law :: SSRN - Jan 2007
David Millon, Washington and Lee University - School of Law -- Research in Law and Economics, 2007 -- Washington & Lee Legal Studies Paper No. 2007-01 -- The essay points out an interesting parallel in law-and-economics business law scholarship. Working largely independently of each other, economically oriented scholars working in different areas have argued that the law should focus on the interests of a single constituency - shareholders in corporate law, creditors in bankruptcy law, and consumers in antitrust law. Economic analysts thus have rejected arguments advanced by progressive scholars working in each of these areas that the law should instead concern itself with the full range of constituencies affected by business activity. The law-and-economics single constituency claim rests in part on skepticism about judicial competence but the underlying objection is to the use of law for redistributive purposes. The primary value is efficiency, defined in terms of market-generated outcomes. In this essay, I question this political commitment, suggesting that it implies a strong tendency toward maintenance of the existing distribution of wealth. Even more importantly, the single constituency claim may actually have redistributive implications. In each of these areas of business law, however, it is a regressive program that favors owners of capital against those who are generally less well of, such as workers and small business owners. -- Number of Pages in PDF File: 31 -- saved to briefcase
paper  SSRN  philosophy_of_law  jurisprudence  legal_theory  political_philosophy  political_economy  law-and-economics  conflict_of_interest  principal-agent  profit_maximization  incentives  incentives-distortions  efficiency  shareholder_value  creditors  consumers  consumer_protection  competition  status_quo_bias  capital  inequality-wealth  inequality-opportunity  power-asymmetric  capital_as_power  distribution-income  distribution-wealth  corporate_governance  corporate_law  corporate_citizenship  bankruptcy  antitrust  conservative_legal_challenges 
july 2015 by dunnettreader
Robert H. Sitkoff - An Economic Theory of Fiduciary Law :: SSRN - Philosophical Foundations of Fiduciary Law, Andrew Gold & Paul Miller eds. (Oxford UP, 2014
Harvard Law -- In consequence of this common economic structure [agency problem], there is a common doctrinal structure that cuts across the application of fiduciary principles in different contexts. However, (..) the particulars of fiduciary obligation vary in accordance with the particulars of the agency problem in the fiduciary relationship at issue. This explains (1) the purported elusiveness of fiduciary doctrine and (2) why courts apply fiduciary law both categorically, such as to trustees and (legal) agents, as well as ad hoc to relationships involving a position of trust and confidence that gives rise to an agency problem. (...) a functional distinction between primary and subsidiary fiduciary rules. In all fiduciary relationships we find general duties of loyalty and care, typically phrased as standards, (..) we also find specific subsidiary fiduciary duties, often phrased as rules, that elaborate on the application of loyalty and care to commonly recurring circumstances in the particular form of fiduciary relationship. (..) the puzzle of why fiduciary law includes mandatory rules that cannot be waived in a relationship deemed fiduciary. Committed economic contractarians, such as Easterbrook and Fischel, have had difficulty in explaining why the parties to a fiduciary relationship do not have complete freedom of contract. The answer is that the mandatory core of fiduciary law serves a cautionary and protective function within the fiduciary relationship as well as an external categorization function that clarifies rights for third parties. -- PDF File: 14 -- Keywords: fiduciary, agency, trust, loyalty, care, prudence, agency costs, duty
chapter  books  SSRN  law-and-economics  behavioral_economics  philosophy_of_law  jurisprudence  fiduciaries  agents  principal-agent  freedom_of_contract  trust  trusts  duty_of_care  duty_of_loyalty  conflict_of_interest  legal_reasoning  rights-legal  duties-legal  common_law 
july 2015 by dunnettreader
Lee Anne Fennell, Richard H. McAdams - The Distributive Deficit in Law and Economics :: SSRN - Minnesota Law Review, Forthcoming (April 2015)
Lee Anne Fennell, Richard H. McAdams, both University of Chicago Law School -- University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 713 -- Welfarist law and economics ignores the distributive consequences of legal rules to focus solely on efficiency, even though distribution unambiguously affects welfare, the normative maximand. The now-conventional justification for disregarding distribution is the claim of tax superiority: that the best means of influencing or correcting distribution is via tax-and-transfer. Critics have observed that optimal redistribution through tax may be politically infeasible, but have generally overlooked the rejoinder that the same political impediments to redistribution through tax will block redistribution through legal rules. This “invariance hypothesis,” as we label it, holds that there is only one distributive equilibrium and that Congress will offset through tax any deviations from it. We highlight the centrality of invariance to the conventional economic wisdom and assert that it is just as relevantly false as the zero transaction cost assumption. In contexts where political impediments to tax-based redistribution exceed the impediments to doctrinal redistribution, it may be possible to increase welfare by redistributing outside of tax. Welfarists should, therefore, devote as much scholarly attention to the “political action costs” of redistribution as they do to transaction costs.-- PDF File: 65. -- Keywords: redistribution, tax-and-transfer, legal rules, law and economics, welfare economics -- saved to briefcase
article  SSRN  philosophy_of_law  welfare_economics  behavioral_economics  law-and-economics  redistribution  tax_policy  transaction_costs  inequality  inequality-wealth  policymaking  US_politics 
july 2015 by dunnettreader
Nicola Lacey - Jurisprudence, History, and the Institutional Quality of Law (Symposium - Jurisprudence and (Its) History) | Virginia Law Review - 101 Va. L. Rev. 919 (2015)
A cri de coeur for putting legal theory and history back together with social theory and empirical social sciences,. -- In the early part of my career, legal history and the history of legal ideas were closed books to me, as I made my way in a field of criminal law scholarship dominated by doctrinal scholarship and by concept-focused philosophical analysis of the foundations of criminal law. These 2 very different paradigms have 1 big thing in common: They tend to proceed as if the main intellectual task is to unearth the deep logic of existing legal doctrines, not infrequently going so far as to read them back onto history, as if things could never have been other than they are. (..)I have increasingly found myself turning to historical resources (1) [to examine] the contingency of particular legal arrangements, and (2) ...to develop causal and other theses about the dynamics which shape them and hence about the role and quality of criminal law as a form of power in modern societies. So, in a sense, I have been using history in support of an analysis driven primarily by the social sciences. (..) it is no accident that all of the great social theorists, from Marx to Foucault via Weber, Durkheim, and Elias, ..have incorporated significant historical elements into their interpretations .... Indeed, without the diachronic perspective provided by history (or the perspective offered by comparative study) we could have no critical purchase on social theory’s characterizations of or causal hypotheses about the dynamics of social systems. Hence, (...) my boundless gratitude to the historians whose meticulous research makes this sort of interpretive social theory possible). -- Lacey is not over-dramatizing -- see the "commentary" from a "legal philosopher" who believes the normative basis of criminal responsibility can be investigated as timeless "moral truths". -- downloaded pdf to Note
article  social_theory  historical_sociology  historical_change  institutions  institutional_change  philosophy_of_law  philosophical_anthropology  philosophy_of_social_science  jurisprudence  legal_theory  analytical_philosophy  concepts  morality-conventional  morality-objective  criminal_justice  responsibility  mind  human_nature  norms  power-asymmetric  power-symbolic  power  Neoplatonism  neo-Kantian  a_priori  historiography  intellectual_history  political_philosophy  political_culture  moral_philosophy  evidence  mental_health  social_order  epistemology  epistemology-moral  change-social  change-intellectual  comparative_law  comparative_anthropology  civil_liberties  women-rights  women-property  rights-legal  rights-political  access_to_services  discrimination  legal_culture  legal_system  legal_reasoning  Foucault  Marx  Weber  Durkheim  metaethics  downloaded 
july 2015 by dunnettreader
Frederick Schauer - The Path-Dependence of Legal Positivism (Symposium - Jurisprudence and (Its) History) | Virginia Law Review - 101 Va. L. Rev. 957 (2015)
My aim in this Article is to focus on the history of thinking about law in the context of 3 topics (..) to show that the continuous development of the theory of legal positivism, however useful it may have been or may still be, has possibly caused us to ignore other aspects of what was originally part of the positivist picture. (..)The first of these dimensions is the relationship between legal theory and legal reform. (..) that an account of the nature of law might be developed not simply as an aid to understanding or accurate description, but instead as a way of facilitating reform of law itself or reform of how a society understands the idea of law. Second, legal positivism, at the time of its late 19thC (or perhaps even earlier) origins, was focused on the importance of coercion, force, and sanctions as central components of law. But as with the creation of legal theories for the purpose of legal reform, this emphasis on the coercive side of law has also been banished to a kind of jurisprudential purgatory, for reasons and with consequences that deserve further examination. The third lost element of earlier versions of legal positivism is its focus on judicial decision making and the role of judges. Modern legal positivists, for whom 1961 is all too often the beginning of useful thought about the nature of law, do not, with few exceptions, consider theories of judicial decision making to be a necessary or even important part of the positivist perspective. But it was not always so. -- downloaded pdf to Note
article  intellectual_history  intellectual_history-distorted  18thC  19thC  20thC  21stC  philosophy_of_law  jurisprudence  legal_theory  legal_system  political_philosophy  legal_reform  institutional_change  institutions  judiciary  judicial_review  law_enforcement  criminal_justice  punishment  coercion  authority  obligation  policymaking  political_change  social_theory  social_sciences  positivism-legal  positive_law  positivism  justice  Study_and_Uses  downloaded 
july 2015 by dunnettreader
Steven Walt - What Can The History of Jurisprudence Do For Jurisprudence? A Commentary on Schauer's "The Path-Dependence of Legal Positivism" | Virginia Law Review - 101 Va. L. Rev. 977 (2015)
Walt's response (at least the abstract) appears to prove Schauer's point quite nicely, as if logic and argument by legal theorists takes place in an abstract world where "how did we get here" is universally ignored, despite its possible relevance for "why are we here", "what are we doing here" and "where does it look like we might be headed" -- but Walt devoted 10 pages to his response, so one hopes he has more to justify his position than what comes across as a mix of arrogance (we don't need to learn from history because our theoretical grounding and argumentative methods are self-contained and self-sufficient) and cynicism (history might be interesting, but no way will anybody change what gets them published and tenure) -- out of curiosity as to whether it's really as bad as the abstract makes it sound, downloaded pdf to Note
article  philosophy_of_law  jurisprudence  legal_theory  analytical_philosophy  concepts  positivism  positivism-legal  historiography  legal_history  intellectual_history  intellectual_history-distorted  downloaded 
july 2015 by dunnettreader
Dan Priel - Toward Classical Legal Positivism (Symposium - Jurisprudence and (Its) History) | Virginia Law Review - 101 Va. L. Rev. 987 (2015)
I have two major aims: (1) set the historical record straight(...) Hobbes’s and Bentham’s work that seeks to understand their views on law not by isolating it from the rest of their wide-ranging body of work, but by understanding their jurisprudential work as part of a broader project. (2) My main aim is to contribute to contemporary jurisprudential debates and to suggest that the largely neglected approach of earlier positivists is superior to the view held by most contemporary legal positivists. (...) to what extent it is useful for us to call Hobbes and Bentham “legal positivists.” My answer to this question consists of three interrelated points. The first is that we draw an explicit link between their ideas and the view that (some time later) would come to be known as “positivism,” roughly the view that the methods of the “human sciences” are essentially the same as those of the natural sciences. The second point is that the classical legal positivists’ decisive break with natural law ideas prevalent in their day is to be found exactly here, in their views about metaphysics and nature. The third point is that this aspect of their work has been, in my view regrettably, abandoned by contemporary legal positivists. Though all three points are related, in this Article I will say relatively little about the first point, as I discussed it in greater detail elsewhere. -- downloaded pdf to Note
article  philosophy_of_law  jurisprudence  political_philosophy  intellectual_history  intellectual_history-distorted  17thC  18thC  19thC  20thC  21stC  Hobbes  Bentham  natural_law  natural_rights  positivism-legal  analytical_philosophy  metaphysics  natural_philosophy  nature  human_nature  scientific_method  social_theory  social_sciences  positivism  positive_law  Methodenstreit  methodology-quantitative  epistemology  sociology_of_knowledge  downloaded 
july 2015 by dunnettreader
Jeffrey A. Pojanowski - Positivism(s): A Commentary on Priel's "Toward Classical Legal Positivism" | Virginia Law Review - 101 Va. L. Rev. 1023 (2015)
Anglo-American jurisprudence, before it insulated itself in conceptual analysis and defined itself in opposition to broader questions, was properly a “sociable science,” to use Professor Postema’s phrase from his symposium article. And, in part due to the exemplars of history, so it may become again. By drawing on Bentham and Hobbes, Professor Dan Priel’s Toward Classical Positivism points forward toward more fruitful methods of jurisprudence while illuminating the recent history and current state of inquiry. His article demonstrates the virtues and promise of a more catholic approach to jurisprudence. It also raises challenging questions about the direction to take this rediscovered path, and I am not sure I always agree with his suggested answers. Any misgivings I have about Priel’s particular approach, however, do not diminish my appreciation; I find even the points of disagreement to be live and meaningful, and that itself is refreshing. -- downloaded pdf to Note
article  philosophy_of_law  jurisprudence  political_philosophy  intellectual_history  intellectual_history-distorted  17thC  18thC  19thC  20thC  21stC  Hobbes  Bentham  natural_law  natural_rights  positivism-legal  analytical_philosophy  metaphysics  natural_philosophy  nature  human_nature  scientific_method  social_theory  social_sciences  positivism  positive_law  Methodenstreit  methodology-quantitative  epistemology  sociology_of_knowledge  downloaded 
july 2015 by dunnettreader
Alice Ristroph - Sovereignty and Subversion (Symposium - Jurisprudence and (Its) History) | Virginia Law Review - 101 Va. L. Rev. 1029 (2015)
Hobbes’s account of law, like his account of punishment, does not fit well into our existing scholarly categories. (..). He was neither a legal positivist nor a natural law theorist, at least not as we usually use these labels. He adopted neither a retributive nor a consequentialist justification of punishment. Yet his account of human interaction, particularly with respect to law and punishment, captures actual experience better than the more familiar alternatives. Moreover, the space for subversion in Hobbes’s theory may make his account more normatively appealing than it has seemed to modern liberals. (...) 3 questions about Hobbesian theory: What is law? What is its relationship to punishment? And what are the implications of Hobbes’s theory for contemporary efforts to describe law or the relationship of law to punishment? The first (..) Hobbes’s legal theory is still so widely mischaracterized, sometimes even by Hobbes scholars, that it is worth returning to his claims. The second question has received much less attention, perhaps because a right to resist punishment seems so discordant with the authoritarian Hobbes we know, or think we know. And the third question has received still less attention, for contemporary jurisprudence scholarship rarely cites anyone who wrote before Jeremy Bentham and John Austin. I hope to show that, in many instances, Hobbes has been misread; even more importantly, I hope to persuade scholars of jurisprudence that what Hobbes actually said is worthy of their engagement. -- downloaded pdf to Note
article  jurisprudence  philosophy_of_law  intellectual_history  intellectual_history-distorted  Hobbes  17thC  political_philosophy  social_theory  natural_law  natural_rights  positivism-legal  sovereignty  authority  obligation  punishment  resistance  liberalism  downloaded 
july 2015 by dunnettreader
Mark C. Murphy - A Commentary on Ristroph’s “Sovereignty and Subversion” | Virginia Law Review - 101 Va. L. Rev. 1055 (2015)
She is correct in rejecting the assimilation of Hobbes’s legal theory to Austin’s, and in noting the strands of Hobbes’s view that disqualify him from counting as any sort of legal positivist. And I agree, on the whole, with her characterization of Hobbes’s account of justified punishment, and that this account has its attractions yet produces some puzzles which Hobbes does not fully resolve. My disagreements are with her second-order characterization of Hobbes’s legal theory. I want to discuss two related areas of disagreement. The first disagreement concerns whether we should assess Hobbes’s account of law in terms of the standards of general descriptive jurisprudence: Ristroph denies that it should be; I disagree. The second concerns whether we should take Hobbes’s treatment of the political as explanatorily prior to the legal to show that Hobbes was in some way apart from the natural law tradition in jurisprudence: Ristroph affirms this; I disagree. -- downloaded pdf to Note
article  jurisprudence  philosophy_of_law  intellectual_history  intellectual_history-distorted  Hobbes  17thC  political_philosophy  social_theory  natural_law  natural_rights  positivism-legal  sovereignty  authority  obligation  punishment  resistance  liberalism  downloaded 
july 2015 by dunnettreader
David Luban - Time-Mindedness and Jurisprudence: A Commentary on Postema's "Jurisprudence, the Sociable Science" | Virginia Law Review - 101 Va. L. Rev. 903 (2015)
Postema offers two general programmatic suggestions for jurisprudence besides greater historical consciousness: sociability and synechism. Sociability, has two dimensions. First, it means interdisciplinarity—a continual dialogue with the study of legal phenomena by the sciences, humanities, and even theology. Second, it means embedding jurisprudence in general philosophy, ... [Sellars]: “not only ‘cabbages and kings’, but numbers and duties, possibilities and finger snaps, aesthetic experience and death.” Synechism is a less familiar idea, drawn from the philosophy of C.S. Peirce. It is the commitment to seek continuity among phenomena. Peirce was metaphysically committed to the existence of actual continua everywhere in nature, history, and human psychology. So synechism will impose a certain demand on all systematic studies, namely discerning those continua.(..) a certain kind of historiography: The historian’s job is to unearth continuities between past and present rather than studying ruptures. This, it seems to me, is a contestable commitment that rules out a great deal of important historical work. Peirce understood synechism to imply that ideas are intrinsically temporal and historical phenomena. Although Postema does not endorse this general thesis, he does argue for a special case of it, namely that law is “intrinsically temporal.” This conclusion is central to his argument against the possibility of time-slice legal systems. It, too, is contestable; but, I shall suggest, Postema can reach his conclusion on grounds other than synechism, and I agree with him about law’s intrinsic temporality. -- downloaded pdf to Note
article  philosophy_of_law  pragmatism  historiography  historical_change  jurisprudence  legal_theory  legal_system  analytical_philosophy  legal_history  continuity  change-social  change-intellectual  intellectual_history  Peirce  social_sciences  legal_culture  legal_realism  philosophy_of_history  downloaded 
july 2015 by dunnettreader
Gerald J. Postema - Jurisprudence, the Sociable Science (Symposium - Jurisprudence and (Its) History) | Virginia Law Review - 101 Va. L. Rev. 869 (2015)
Renaissance jurisprudence strove to be a sociable science. Following Ulpian’s lead, it refused to relegate jurisprudence either to pure speculation or to mere practice. Jurisprudence was a science, a matter of knowledge and of theoretical understanding, not merely an applied art or practice of prudence innocent of theory. It was regarded as the very heart of theoretical studies, drawing to itself all that the traditional sciences of theology, metaphysics, and moral philosophy, as well as the newly emerging humanist sciences of philology and hermeneutics, had to offer. No less resolutely, however, it refused to abandon its foothold in the life of practice. (..) Rather than reject philosophical reflection, (..) Renaissance jurists sought to locate it in concrete human life and experience. (..) Philosophy.., was most true to its vocation, and was most engaged in human life, when its reflections were anchored in the social life acknowledged, comprehended, and informed by and informing law. Jurisprudence, vera philosophia, was ...the point at which the theoretical and the practical intersected (..) at its “sociable” best sought to integrate them. Analytic jurisprudence began as self-consciously, even militantly, “unsociable,” and its matured and much-sophisticated descendant, fin de siècle analytic legal philosophy, remained largely if not exclusively so. (..) It may be time, in this period of self-conscious attention to jurisprudential method, to press beyond the current limits of this debate over method to a reassessment of the ambitions of jurisprudence and of philosophy’s role in it. (..) my aim is not critical but constructive. (..) to recover something of the ideal of jurisprudence as a sociable science, to retrieve as much as our disenchanted age can be challenged to embrace, or at least to entertain, of the ambition of jurisprudence as vera philosophia. -- downloaded pdf to Note
article  jurisprudence  philosophy_of_law  social_theory  social_sciences  intellectual_history  Renaissance  16thC  17thC  18thC  19thC  20thC  common_law  moral_philosophy  morality-conventional  norms  analytical_philosophy  concepts  concepts-change  change-social  change-intellectual  social_order  legal_history  legal_theory  legal_reasoning  pragmatism  Peirce  continuity  historical_change  methodology-qualitative  downloaded 
june 2015 by dunnettreader
Charles Barzun and Dan Priel - Jurisprudence and (Its) History - Symposium Introduction | Virginia Law Review 101 Va. L. Rev. 849 (2015)
Whereas legal philosophers offer “analyses” that aim to be general, abstract, and timeless, legal historians offer “thick descriptions” of what is particular, concrete, and time-bound. But surface appearances can deceive. Perhaps unlike other areas of philosophy, the subject matter of jurisprudence is at least partially (if not entirely) a social phenomenon. Courts, legislatures, judicial orders, and statutes are the products of human efforts, both collective and individual, and they only exist as legislatures, courts, and the like insofar as they possess the meaning they do in the eyes of at least some social group. For this reason, legal philosophers since at least H.L.A. Hart have recognized their task to be a “hermeneutic” one—one which aims to discern or make explicit the “self-understanding” of legal actors. At the same time, legal historians aim not simply to record legal rules that existed at some given point in history, but to unearth the meaning that actual people—judges, lawyers, politicians, and ordinary citizens—have attached to law. When they do so, they might be seen as uncovering evidence of those same “self-understandings” that philosophers claim constitute law. Perhaps, then, philosophical and historical inquiries about law do not differ so radically from each other after all. -- downloaded pdf to Note
article  philosophy_of_law  philosophy_of_language  ordinary_language_philosophy  jurisprudence  political_philosophy  moral_philosophy  intellectual_history  historiography  legal_history  legal_theory  legal_reasoning  constitutional_law  Founders  originalism  contextualism  change-social  change-economic  change-intellectual  norms  hermeneutics  positivism-legal  philosophy_of_history  institutional_change  downloaded 
june 2015 by dunnettreader
John Mikhail - The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers :: SSRN - Virginia Law Review, Vol. 101, No. 4, 2015 (rev'd June 11 2015)
Georgetown University Law Center -- The main purpose of this Article is to begin to recover and elucidate the core textual basis of a progressive approach to constitutional law, which appears to have been embraced in essential respects by many influential figures, including Wilson, Hamilton, Marshall, and the two Roosevelts, and which rests on an implied power to promote the general welfare. To pursue this objective, the Article relies on two strange bedfellows: the law of corporations and the philosopher Paul Grice. An ordinary language philosopher like Grice, (..) might seem like an unlikely ally to enlist in this endeavor. (..) underestimating the significance of Grice’s ideas for constitutional law would be a mistake. Plausibly interpreted, the Constitution vests an implied power in the Government of the United States to promote the general welfare, and Grice’s distinction between semantic and pragmatic implication is a helpful means of understanding why. After a general introduction, the Article first summarizes some key aspects of Grice’s philosophy of language and then briefly illustrates their relevance for constitutional law. The remainder of the Article is then devoted to explaining how, along with a relatively simple principle in the law of corporations, according to which a legal corporation is implicitly vested with the power to fulfill its purposes, Grice’s distinction between semantic and pragmatic implication helps to illuminate a thorny problem of enduring interest: What powers does the Constitution vest in the Government of the United States? -- Pages in PDF File: 41 -- Keywords: James Wilson, Charles Beard, James Madison, Gouverneur Morris, Paul Grice, constitution, implication, implicature, entailment, semantics, pragmatics, implied powers, enumerated powers, preamble, vesting clause, necessary and proper clause, sweeping clause, tenth amendment, originalism -- downloaded pdf to Note
article  SSRN  philosophy_of_law  philosophy_of_language  ordinary_language_philosophy  legal_reasoning  constitutional_law  US_constitution  US_history  federalism  US_government  US_legal_system  originalism  common_good  commonwealth  progressivism  Founders  Madison  Morris_Gouverneur  downloaded 
june 2015 by dunnettreader
Deborah Hellman, Commentary on Mikhail's "The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers" | Virginia Law Review - 101 Va. L. Rev. 1105 (2015)
Mikhail uses these insights about language and communication to say something about constitutional interpretation. But that is where the trouble begins. While Mikhail offers a masterful textual analysis of the Necessary and Proper Clause of the Constitution, I am not convinced that his analysis demonstrates its meaning, and if it does, I fear that Mikhail’s efforts yield the perverse consequence of delegitimizing the very document he is at great pains to enlarge. In what follows, I raise three worries about Mikhail’s analysis. First, a constitution is not a conversation between its drafters and some other people and, as a result, it is unclear whether the Gricean paradigm has anything useful to say about constitutional interpretation. Second, it is far from clear what a constitution is for and consequently there are unlikely to be accepted conventions about how to interpret the meaning of statements within them. Third, Mikhail’s article presents evidence that the Constitution’s drafters were strategic and crafty. But if the drafters are violating the cooperative principle Grice identified, this fact calls into doubt the significance of the ratification of the Constitution from which that document, purportedly, derives its legitimacy. -- downloaded pdf to Note
article  legal_theory  legal_reasoning  constitutional_law  philosophy_of_language  philosophy_of_law  Founders  legitimacy  US_constitution  downloaded 
june 2015 by dunnettreader
Jeremy Waldron - Can There Be a Democratic Jurisprudence? :: SSRN - Nov 2008
NYU School of Law, Public Law Research Paper No. 08-35 -- General jurisprudence purports to consider law in general. But to break out of the arid abstractions of analytic legal philosophy, it may be worth also giving some jurisprudential consideration to the distinctive features of law in the context of a particular kind of political system. This paper considers the jurisprudence of law in a modern democracy. It explores a suggestion (made by Ronald Dworkin and others) that legal positivism might be a theory particularly apt for a democracy. And it explores the meaning and significance for democratic political theory of ideas like the generality of law, the separation of law and morality, the sources thesis, and law's public orientation. At the very end, the paper also considers Jean-Jacques Rousseau's view that the word "law" should be confined to measures that are applicable to all, made by all, and enacted in the spirit of a general will. -- Pages in PDF File: 5 -- Keywords: analytic legal philosophy, democracy, Hart, jurisprudence, legal positivism, Rousseau, separation of law and morality, sources of law -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  jurisprudence  legal_theory  legal_system  political_philosophy  government-forms  democracy  positivism-legal  analytical_philosophy  Hart  general_will  moral_philosophy  Dworkin  lawmaker  politics-and-religion  legal_reasoning  downloaded 
june 2015 by dunnettreader
Jeremy Waldron - Ius Gentium: A Defense of Gentili's Equation of the Law of Nations and the Law of Nature :: SSRN November 2008
NYU School of Law, Public Law Research Paper No. 08-34 -- The relation between the law of nature and the law of nations (ius gnetium) remains unclear. This paper examines Gentili's apparent equation of the two, and it considers more generally how abstract natural law reasoning might be improved by the sort of empirical/comparative law reasoning (as we would call it) that thinkers like Gentili, Grotius and others engaged in when they tried to determine what natural law teaches us about the regulation of war. -- Pages in PDF File: 17 -- Keywords: Gentili, ius gentium, law of nations, laws of war, moral reasoning, natural law, positive law -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  jurisprudence  legal_theory  analytical_philosophy  Roman_law  natural_law  international_law  positivism-legal  positive_law  moral_philosophy  comparative_law  17thC  18thC  Europe-Early_Modern  Grotius  gentility  law_of_the_sea  law_of_nations  ius_gentium  downloaded 
june 2015 by dunnettreader
Jeremy Waldron - What do the Philosophers Have against Dignity? (Nov 2014) :: SSRN
NYU School of Law, Public Law Research Paper No. 14-59 -- Among analytic philosophers, there is considerable antipathy towards the concept of human dignity. It is not always expressed, but the impression is conveyed that this is a rather disreputable idea and that its trumpeting in legal and political theory is to be deplored. The present paper tries to get to grips with the sources of this antipathy. Is it based on the unclarity of the concept, its religious overtones, its speciesism, or its redundancy as a moral idea. The paper makes a case for dignity as a status-concept -- denoting a particular sort of moral/legal status that all humans have. -- Pages in PDF File: 23 -- Keywords: definition, dignity, foundationalism, human dignity, religion, rights -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  jurisprudence  legal_theory  analytical_philosophy  concepts  dignity  moral_philosophy  political_philosophy  status  human_rights  foundationalism  politics-and-religion  natural_law  natural_rights  downloaded 
june 2015 by dunnettreader
Jeremy Waldron -Judicial Review and Judicial Supremacy (Nov 2014) :: SSRN
NYU School of Law, Public Law Research Paper No. 14-57 -- This paper attempts to identify a particular constitutional evil -- namely, judicial supremacy -- and to distinguish the objection to judicial supremacy from the broader case that can be made against judicial review. Even if one supports judicial review, one ought to have misgivings about the prospect of judicial supremacy. The paper associates judicial supremacy with three distinct tendencies in constitutional politics: (1) the temptation of courts to develop and pursue a general program (of policy and principle of their own) rather than just to intervene on a piecemeal basis; (2) the tendency of the highest court to become not only supreme but sovereign, by taking on a position of something like broad sovereignty within the constitutional scheme (thus confirming Thomas Hobbes in his conviction that the rule of law cannot be applied at the highest level of political authority in a state because any attempt to apply it just replicates sovereignty at a higher level)); (3) the tendency of courts to portray themselves as entitled to "speak before all others" for those who made the constitution, to take on the mantle of pouvoir constituant and to amend or change the understanding of the constitution when that is deemed necessary. -- Pages in PDF File: 44 -- Keywords: constitutions, Hobbes, judicial review, judicial supremacy, judges, judiciary, popular constitutionalism, rule of law, Sieyes, sovereignty -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  jurisprudence  legal_theory  legal_system  political_philosophy  government-forms  Hobbes  Sieyes  sovereignty  authority  democracy  accountability  constitutions  constitutionalism  judicial_review  judiciary  conflict  public_policy  public_opinion  change-social  political_change  policymaking  downloaded 
june 2015 by dunnettreader
Jeremy Waldron - The Rule of Law in Public Law (September 2014) :: SSRN - Cambridge Companion to Public Law, Forthcoming
NYU School of Law, Public Law Research Paper No. 14-40 -- This paper explores the possibility of a conception of the rule of law that is oriented specifically to public law. It is not a conception of the rule of law that privileges private law rights (like rights of property) nor is it an abstract or anodyne conception that is supposed to apply to all areas of governance indiscriminately. Instead this is an account of the rule of law that takes the mission of public administration seriously and seeks to establish it on a footing of legality rather than managerialism, while at the same time acknowledging that sometimes private interests have to give way to the interests of the public. -- Number of Pages in PDF File: 19 -- Keywords: Dicey, discretion, public law, public administration, rule of law -- downloaded pdf to Note
chapter  SSRN  philosophy_of_law  jurisprudence  legal_theory  legal_system  public_law  administrative_law  rule_of_law  discretion  managerialism  public_interest  public_goods  rights-legal  constitutional_law  property_rights  property-confiscations  downloaded 
june 2015 by dunnettreader
Jeremy Waldron - Public Rule of Law (keynote address) :: SSRN September 2014
Inaugural Conference of International Society for Public Law, June 2014 -- NYU School of Law, Public Law Research Paper No. 14-41 -- This paper was delivered as the keynote address at the inaugural conference of the International Society for Public Law, in the Palazzo Vecchio in Florence, on 26 June, 2014. It develops an understanding of public law that takes seriously both the idea of public governance and the idea of individual parties as members of the public. And it outlines an understanding of the rule of law that matches these public-spirited conceptions. -- Number of Pages in PDF File: 22 -- Keywords: private property, public administration, public law, republicanism, rule of law -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  jurisprudence  legal_theory  legal_system  common_good  public_law  public_goods  government-roles  administrative_law  administrative_agencies  government_agencies  property  property_rights  republicanism  rule_of_law  political_participation  governance  downloaded 
june 2015 by dunnettreader
Panel discussion - Max Weber’s work and its relation to historical writing (Dec 2014) :: German Historical Institute London (GHIL)
Chair: Andreas Gestrich (German Historical Institute London) -- Discussants: David d’Avray, Peter Ghosh and Joachim Radkau -- Max Weber is one of the most prestigious social theorists in recent history. Many of his academic works are modern classics. Even 100 years after his death, his books are still read, edited, translated and interpreted. In recent years a number of biographies have shed new light on Weber’s life and work. In commemoration of Max Weber’s 150th anniversary, the German Historical Institute hosts a discussion with three Weber experts, British historians David d’Avray and Peter Ghosh and German historian Joachim Radkau, on Max Weber’s work and its relation to historical writing. **--** Peter Ghosh is Jean Duffield Fellow in Modern History at St Anne’ College, University of Oxford. His research interests focus primarily on the history of ideas, both social and political theory and also the history of historiography. His latest publication Max Weber and The Protestant Ethic: Twin Histories (Oxford University Press, 2014) offers an intellectual biography of Weber framed along historical lines. **--** David d’Avray, Professor of Medieval History at University College London, has worked on medieval marriage, on preaching, on attitudes to kingship and death, on rationalities, and on ‘longue durée’ structures of papal history. In Rationalities in History: a Weberian Analysis (Cambridge University Press 2010), he writes a new comparative history in the spirit of Max Weber. Reassessing seminal Weberian ideas, he applies value rationality to the comparative history of religion and the philosophy of law. **--** Joachim Radkau is Professor for Modern History at the University of Bielefeld. His latest research interests concentrate on environmental history, the history of nature conservation, and Max Weber’s self and social perception. In his extensive biography Max Weber: Die Leidenschaft des Denkens (Carl Hanser Verlag, 2005) (Max Weber: Passion for thinking), Radkau embeds Weber’s life and work in their historical context. -- MP3 download, 113 min, 64.2 MB -- downloaded to Note
audio  intellectual_history  Weber  social_theory  comparative_history  historiography-19thC  German_historical_school  German_scholarship  historicism  philosophy_of_law  sociology_of_religion  medieval_history  longue_durée  Papacy  biography  political_philosophy  political_culture  religious_culture  religious_history  rationality  environment  ecology-history  downloaded 
april 2015 by dunnettreader
Sven Ove Hansson -Risk (updated 2011) | Stanford Encyclopedia of Philosophy
Since the 1970s, studies of risk have grown into a major interdisciplinary field of research. Although relatively few philosophers have focused their work on risk, there are important connections between risk studies and several philosophical subdisciplines. This entry summarizes the most well-developed of these connections and introduces some of the major topics in the philosophy of risk. It consists of six sections dealing with the definition of risk and with treatments of risk related to epistemology, the philosophy of science, the philosophy of technology, ethics, and the philosophy of economics.
1. Defining risk [including objective vs subjective and risk vs uncertainty - the latter comparison mostly formalized in decision tgeory]
2. Epistemology
3. Philosophy of science
4. Philosophy of technology
5. Ethics
6. Risk in economic analysis
Related Entries -- causation: in the law | causation: probabilistic | consequentialism | contractarianism | economics, philosophy of | game theory | luck: justice and bad luck | scientific knowledge: social dimensions of | technology, philosophy of
philosophy  epistemology  epistemology-social  epistemology-moral  causation  causation-social  probability  Bayesian  moral_philosophy  utilitarianism  utility  rights-legal  game_theory  philosophy_of_science  philosophy_of_social_science  economic_theory  behavioral_economics  financial_economics  sociology_of_knowledge  philosophy_of_law  risk  risk-mitigation  risk_management  uncertainty  rational_choice  rationality-economics 
february 2015 by dunnettreader
Brian Z. Tamanaha - What is Law? :: SSRN - Jan 2015
Brian Z. Tamanaha -- Washington University in St. Louis Legal Studies Research Paper No. 15-01-01 -- Theorists who tackle “What is law?” usually acknowledge the difficulty of the question, then, with hardly a pause, launch into their proposed answer. Instead, focusing on three main categories of concepts of law, I examine in detail why previous attempts have failed to achieve a consensus. Several factors have contributed. One source of disagreement involves clashes among intuitions about law. Further problems are created by the narrowness of functional analysis, on which nearly all concepts of law are based. Confusion also arises because law shares basic characteristics with many social institutions, as I show drawing on insights from the philosophy of society. Theorists also typically fail to recognize two distinct orientations of law, and multiple forms of law, which singular concepts of law cannot accommodate. Finally, variability and change owing to the social-historical nature of law defeats efforts of legal philosophers to identify essential features and universally true concepts of law. At the conclusion I present a way of understanding law that emerges out of the lessons learned from past unsuccessful efforts. -- topic headings in the essay: Three Categories of the Concept of Law; Pivotal Role of Intuitions About Law; Over-Inclusiveness of Functionalism; Under-Inclusiveness of Functionalism; Why Functionalism Cannot Answer ‘What is Law?’; Error of Conflating ‘Rule System’ and ‘Legal System’; Law as Part of the Institutional Substrate of Society; State Law’s Two Orientations; Coexisting Multiple Legal Forms; Necessary and Essential Features Or Typical Features; Universal Application Versus Universal Truth; What is Law -- No. Pages: 49 -- Keywords: jurisprudence, philosophy of law, law and society, legal anthropology, legal sociology, legal history, and comparative law -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  jurisprudence  legal_history  legal_theory  legal_culture  legal_realism  legal_reasoning  legal_validity  functionalism  institutions  institutional_change  social_order  universalism  normativity  norms  custom  customary_law  sociology_of_law  comparative_law  concepts  concepts-change  rule_of_law  downloaded  EF-add 
january 2015 by dunnettreader
Scott Hershovitz - The End of Jurisprudence :: SSRN - Oct 2014
Via Brian Tamanaha -- Scott Hershovitz, University of Michigan Law School -- Yale Law Journal, Forthcoming -- For more than forty years, jurisprudence has been dominated by the Hart-Dworkin debate. The debate starts from the premise that our legal practices generate rights and obligations that are distinctively legal, and the question at issue is how their content is determined. Positivists say that their content is determined ultimately or exclusively by social facts. Anti-positivists say that moral facts must play a part in determining their content. In this Essay, I argue that the debate rests on a mistake. Our legal practices do not generate rights and obligations that are distinctively legal. At best, they generate moral rights and obligations, some of which we label legal. I defend this view by drawing analogies with other normative practices, like making promises, posting rules, and playing games. And I try to explain why it looks like legal practices generate distinctively legal rights and obligations even though they do not. I conclude with some thoughts about the questions jurisprudence should pursue in the wake of the Hart-Dworkin debate. -- Number of Pages: 63 -- Keywords: jurisprudence, H.L.A. Hart, Ronald Dworkin, Hart-Dworkin Debate, legal positivism, anti-positivism, philosophy of law
paper  SSRN  philosophy_of_law  jurisprudence  Hart  Dworkin  judiciary  legal_theory  legal_culture  legal_realism  legal_reasoning  sociology_of_law  normativity  moral_philosophy  morality-conventional  morality-objective  legal_validity  rights-political  rights-legal  natural_law  Wittgenstein  downloaded  EF-add 
january 2015 by dunnettreader
Law's Evolution and Law as Custom by William A. Edmundson :: SSRN
William A. Edmundson, Georgia State University College of Law -- 51 San Diego L. Rev. (December 2014, Forthcoming). -- Georgia State University College of Law, Legal Studies Research Paper No. 2014-15 -- Legal discourse centrally involves a family of normative expressions – “obligation,” “right,” “permission,” and so on – whose surface grammar parallels that of moral discourse. Is the normativity of legal discourse then a moral normativity? Or is it a distinct type of normativity altogether? (..) Custom is among the sources of law. That much is agreed. But custom can also be law, independently of promulgation, or so many believe. (..) Insofar as a customary norm is (or becomes) a legal norm, does it manifest (or acquire) a different kind of normativity? Or does its original normativity contribute to the normativity of law? Another set of questions has to do with custom as a condition of legal validity. [Different positions of Kelsen and Hart] I will explore the hypothesis that every legally normative utterance resolves into one expressing (a) custom-implicating moral normativity, (b) custom-extending moral normativity, or (c) normativity “in the manifesto sense” (to enlist a phrase of Joel Feinberg’s). If this is correct, there is no such thing as a distinctively legal brand of normativity. -- No. Pages: 30 -- Keywords: legal theory, legal philosophy, philosophy of law, normativity, norm, custom, validity, moral, desuetudo, moral philosophy -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  jurisprudence  legal_history  legal_theory  legal_culture  sociology_of_law  legal_realism  legal_reasoning  normativity  moral_philosophy  morality-conventional  morality-objective  legal_validity  norms  custom  customary_law  downloaded  EF-add 
january 2015 by dunnettreader
Roger Cotterrell - Why Jurisprudence Is Not Legal Philosophy :: SSRN - January 24, 2014
Via Brian Tamanaha -- Roger Cotterrell, Queen Mary University of London, School of Law -- Jurisprudence, Vol. 5, No. 1, 2014, Forthcoming - Queen Mary School of Law Legal Studies Research Paper No. 169/2014 -- The aim of this paper is to describe and defend jurisprudence as an enterprise of theorising about law that is distinct from what is now understood as legal philosophy in the Anglophone world. Jurisprudence must draw on legal philosophy but also from many other resources. It should be an open quest for juristically (rather than philosophically) significant insights about law. Its purpose is to inform and guide the juristic task of making organised social regulation a valuable practice, rooted and effective in the specific contexts and historical conditions in which it exists but also aimed at serving demands for justice and security through regulation, as these perennial values are understood in their time and place, and as they might be further clarified and reconciled as legal ideals. - Number of Pages: 18 -- Keywords: Jurisprudence; legal philosophy; contemporary legal positivism; universalism; legal naturalism; law in context; socio-legal perspectives; bricolage; jurists. -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  jurisprudence  judiciary  legal_theory  legal_culture  justice  legal_realism  legal_reasoning  universalism  natural_law  downloaded  EF-add 
january 2015 by dunnettreader
Brian Tamanaha - Balkinization: Whither Jurisprudence? - Jan 2015
Scott Hershovitz's "The End of Jurisprudence" is a terrific article. [Downloaded from SSRN] For the past four decades, he asserts, "jurisprudence has been dominated by the Hart-Dworkin debate," and it is time to move on. -- "The time has come for jurisprudence to drop the metaphysics and take up morals. The question that jurisprudence should aim to answer is how our legal practices affect our moral rights, obligations, privileges, and powers. The metaphysical question posed in the Hart-Dworkin debate was a distraction; we have no good reason to think that our legal practices generate a distinctively legal domain of normativity, or quasi-normativity, whose metaphysics we must unravel. But the moral question is vital; it is contested everyday, in court and out, with serious consequences for peoples’ lives." (..) Though I agree this deserves attention, I do not agree that jurisprudence has or requires a particular end, whether this one or any other. The field thrives best when jurisprudence scholars pursue many different intellectual projects. In my view, jurisprudence remains vital by focusing on important legal phenomena and by drawing from other disciplines for insights. On that note, I offer my draft essay "What is Law?" [Downloaded from SSRN, as well as 2014 article by Roger Cotterrell]
philosophy_of_law  jurisprudence  judiciary  legal_theory  legal_realism  normativity  moral_philosophy  norms  morality-conventional  obligation  Hart  Dworkin 
january 2015 by dunnettreader
Stephen Paskey - The Law is Made of Stories: Erasing the False Dichotomy between Stories and Legal Rules (May 30, 2014) :: SSRN
SUNY Buffalo Law School -- Legal Comm. & Rhetoric: JALWD, vol. 11 (Fall 2014, Forthcoming) - SUNY Buffalo Legal Studies Research Paper No. 2014-031 -- When lawyers think of legal analysis, they think chiefly of logic and reason. Stories are secondary. As Michael Smith explains, our legal system “is not founded on narrative reasoning” but on “a commitment to the rule of law.” The article suggests that this dichotomy between “rule-based reasoning” and “narrative reasoning” is false, and that narrative and stories are central to legal reasoning, including rule-based reasoning. In doing so, the article uses literary narrative theory to show that every governing legal rule has the structure of a “stock story”: the elements of the rule correspond to elements of a story. It follows that lawyers do not rely on stories simply because they are persuasive. They do so because a story is literally embedded in the structure of governing rules, and those rules can be satisfied only by telling a story. Thus, many analytical moves we label “rule-based reasoning” can be understood as a type of narrative reasoning, in which a client’s story is compared to and contrasted with the stock story embedded in the rule. -- downloaded pdf to Note
article  SSRN  philosophy_of_law  legal_system  legal_theory  narrative  legal_reasoning  logic  precedent  downloaded  EF-add 
august 2014 by dunnettreader
Philosophy at 3:AM: Questions and Answers with 25 Top Philosophers : Richard Marshall : 9780199969531
Contents -- i. Introduction. ; Chapter 1. Brian Leiter: 'Leiter Reports' ; Chapter 2. Jason Stanley : 'Philosophy As The Great Naivete' ; Chapter 3. Eric Schwitzgebel: 'The Splintered Skeptic' ; Chapter 4. Mark Rowlands: 'Hour Of The Wolf' ; Chapter 5. Eric T Olson: 'The Philosopher With No Hands' ; Chapter 6. Craig Callender: ' Time Lord' ; Chapter 7. Kieran Setiya: ' What Anscombe Intended and Other Puzzles' ; Chapter 8. Kit Fine: 'Metaphysical Kit' ; Chapter 9. Patricia Churchland: 'Causal Machines' ; Chapter 10. Valerie Tiberius: 'Mostly Elephant, ErgoEL' ; Chapter 11. Peter Carruthers: 'Mind Reader' ; Chapter 12. Josh Knobe: 'Indie Rock Virtues' ; Chapter 13. Al Mele: 'The Four Million Dollar Philosopher ; Chapter 14.Graham Priest: 'Logically Speaking' ; Chapter 15. Ursula Renz: 'After Spinoza: Wiser, Freer, Happier' ; Chapter 16. Cecile Fabre: ' On The Intrinsic Value Of Each Of Us' ; Chapter 17. Hilde Linderman: ' No Ethics Without Feminism' ; Chapter 18. Elizabeth S. Anderson: 'The New Leveller' ; Chapter 19. Christine Korsgaard: 'Treating People As End In Themselves' ; Chapter 20. Michael Lynch: 'Truth, Reason and Democracy' ; Chapter 21. Timothy Williamson : 'Classical Investigations' ; Chapter 22. Ernie Lapore: 'Meaning, Truth, Language, Reality' ; Chapter 23. Jerry Fodor: 'Meaningful Words Without Sense, And Other Revolutions.' ; Chapter 24. Huw Price: 'Without Mirrors' ; Chapter 25. Gary Gutting: 'What Philosophers Know'
books  buy  philosophy  intellectual_history  metaphysics  metaethics  ontology  scepticism  analytical_philosophy  political_philosophy  epistemology  feminism  philosophy_of_language  mind  mind-body  consciousness  philosophy_of_science  philosophy_of_law  pragmatism  EF-add 
august 2014 by dunnettreader
Review Essay: Legal Thought in Enlightenment's Wake by Jeffrey A. Pojanowski :: SSRN - 4 Jurisprudence, 2013, Forthcoming
Notre Dame Legal Studies Paper No. 12-80 -- This review essay considers Steven D. Smith’s most recent book, The Disenchantment of Secular Discourse. Rather than focusing on the book’s argument about the practices and pathologies of the public square, this essay uses Smith’s chapter on scientific thought as a platform for exploring connections between Disenchantment and Smith’s prior work in legal theory. The catalyst for these reflections is Scandinavian legal realism. Considering these elements together sheds light on both the limits and virtues of central ideas about legal obligation and authority in contemporary jurisprudence. Such perspective points to a broader argument that jurisprudential debates about methodology and concepts may be as much about how we read the universe as they are about how we understand law. -- Keywords: jurisprudence, legal theory, obligation, authority, conceptual analysis, legal positivism
books  reviews  philosophy_of_law  political_philosophy  moral_philosophy  obligation  secularism  secularization  legal_realism  authority  legal_theory  analytical_philosophy  concepts  legal_culture  positivism-legal  downloaded  EF-add 
july 2014 by dunnettreader
Steven D. Smith, review essay - Discourse in the Dusk: The Twilight of Religious Freedom? | JSTOR: Harvard Law Review, Vol. 122, No. 7 (May, 2009), pp. 1869-1907
Reviewed work(s): Religion and the Constitution — Volume 2: Establishment and Fairness by Kent Greenawalt -- Smith claims a millennium of tradition re church and state is unraveling (a la MacIntyre decadent tradition) and US policy and jurisprudence tends to ignore erosion of their fundamental justifications -- starts with Pope Gregory and Henry IV and investiture controversy -- downloaded pdf to Note
books  reviews  article  jstor  intellectual_history  political_philosophy  theology  religion-established  religious_culture  religious_history  church_history  civil_liberties  freedom_of_conscience  tolerance  pluralism  secularism  US_constitution  bill_of_rights  legal_theory  philosophy_of_law  medieval_history  Papacy  Reformation  downloaded  EF-add 
july 2014 by dunnettreader
JON GARTHOFF - LEGITIMACY IS NOT AUTHORITY | JSTOR: Law and Philosophy, Vol. 29, No. 6 (November 2010), pp. 669-694
The two leading traditions of theorizing about democratic legitimacy are liberalism and deliberative democracy. Liberals typically claim that legitimacy consists in the consent of the governed, while deliberative democrats typically claim that legitimacy consists in the soundness of political procedures. Despite this difference, both traditions see the need for legitimacy as arising from the coercive enforcement of law and regard legitimacy as necessary for law to have normative authority. While I endorse the broad aims of these two traditions, I believe they both misunderstand the nature of legitimacy. In this essay I argue that the legitimacy of a law is neither necessary nor sufficient for its normative authority, and I argue further that the need for legitimacy in law arises regardless of whether the law is coercively enforced. I thus articulate a new understanding of the legitimacy and authority of law. -- didn't download -- bibliography heavily classic modern and contemporary philosophers
article  jstor  social_theory  political_philosophy  moral_philosophy  philosophy_of_law  institutions  authority  legitimacy  legal_culture  legal_validity  liberalism  social_contract  consent  reasons  enforcement  deliberation-public  Habermas  democracy  norms  normativity  obligation  Enlightenment  Locke  Mill  Rawls  bibliography  EF-add 
july 2014 by dunnettreader
"SECULARIZATION, LEGAL INDETERMINACY, AND HABERMAS'S DISCOURSE THEORY O" by Mark C. Modak-Truran
Mark C. Modak-Truran, Mississippi College School of Law -- The unexpected vitality of religion has motivated scholars in many fields like anthropology, sociology, political science, international relations, and philosophy to revisit their assumptions about the supposed secularization of their disciplines. The secularization of law arguably constitutes the most widely-held but least-examined assumption in contemporary legal theory. Legal scholars and philosophers have surprisingly ignored one exception—Jürgen Habermas’s discourse theory of law. Relying on Max Weber's social theory, Habermas argues that the rationalization of society (i.e., secularization) has eliminated religious and metaphysical justifications for law and has differentiated law from politics and morality so that law must be legitimated in a seemingly paradoxical manner: by its legality. Habermas claims that legality can legitimate the law based on the discourse principle in the discourse of justification by voluntary, intersubjective agreement among all those affected and that the law can be impartially applied in the discourse of application via the principle of appropriateness without judges relying on personal moral, political, or religious convictions. At the same time, Habermas recognizes that the law is indeterminate so that strong legal formalism no longer maintains the secularization of law. The failure of Habermas’s discourse theory of law represents a watershed moment for contemporary legal theory. Contemporary legal theory needs to comprehend that the widespread acceptance of legal indeterminacy calls into question current conceptions of the secularization of law and arguably demarcates the desecularization of the law. -- Mark C. Modak-Truran. "SECULARIZATION, LEGAL INDETERMINACY, AND HABERMAS'S DISCOURSE THEORY OF LAW" 35 Fla. St. U. L. Rev. 73 (2007). -- downloaded pdf to Note
philosophy_of_law  political_philosophy  social_theory  legitimacy  foundationalism  legal_indeterminancy  legal_theory  discourse-political_theory  discourse_ethics  Habermas  secularism  post-secular  downloaded  EF-add 
july 2014 by dunnettreader
"BEYOND THEOCRACY AND SECULARISM (PART I): TOWARD A NEW PARADIGM FOR LA" by Mark C. Modak-Truran
To move beyond theocracy (pre-modern) and secularism (modern), this article closes by identifying the trajectory for a new constructive postmodern paradigm that embraces legal indeterminacy and secularizing the text of the law but argues that a plurality of religious convictions implicitly legitimates and thereby desecularizes the law. Desecularizing the law does not result in the imposition of the religion of the ruler (theocracy) in a pluralistic democratic society. Rather, the constructive postmodern paradigm of law and religion allows for the religious pluralism in society to provide a plurality of religious ontologies that implicitly legitimate the law and close the ontological gap between legal theory and legal practice. -- Mark C. Modak-Truran. "BEYOND THEOCRACY AND SECULARISM (PART I): TOWARD A NEW PARADIGM FOR LAW AND RELIGION" Mississippi College Law Review 27.1 (2008): 159-233. -- downloaded pdf to Note
philosophy_of_law  ontology  ontology-social  social_theory  foundationalism  moral_philosophy  secularism  secular_humanism  post-secular  postmodern  legal_indeterminancy  values  pluralism  legal_theory  legal_culture  political-theology  politics-and-religion  downloaded  EF-add 
july 2014 by dunnettreader
"CORRECTIVE JUSTICE AND THE REVIVAL OF JUDICIAL VIRTUE" by Mark C. Modak-Truran
Mark C. Modak-Truran, Mississippi College School of Law -- Aristotle's discussion of corrective justice has been generally thought to mark the beginning of the philosophical examination of tort law. Many scholars also consider corrective justice, of one form or another, the main normative alternative to the economic analysis of law. Most discussions of Aristotle’s conception of corrective justice in the law review literature, however, have failed to account for the established reading of Aristotle’s Nicomachean Ethics as proposing a teleological form of ethics. Accordingly, Corrective Justice and the Revival of Judicial Virtue argues for a teleological interpretation of Aristotle's conception of corrective justice. The teleological conception of corrective justice does not attempt to analyze corrective justice merely as a formal (Weinrib), substantive (Wright), or political (Heyman) conception of equality or freedom that can be applied by technical reason to various circumstances. Rather, it maintains that corrective justice is a moral virtue of the judge that cannot be fully understood without specifying its relationship to practical wisdom and the telos of the good life. Under this reading, Aristotle’s conception of corrective justice specifies a method of judicial decision making whereby only the practically wise (i.e., morally virtuous) judge can know the content of corrective justice in all cases. Judging requires moral virtue not technical, philosophical or legal, expertise. Consequently, this article advocates a revival of Aristotle’s notion that judicial virtue requires moral virtue. -- Mark C. Modak-Truran. "CORRECTIVE JUSTICE AND THE REVIVAL OF JUDICIAL VIRTUE" Yale Journal of Law and the Humanities 12.2 (2000): 249-298. -- downloaded pdf to Note
article  philosophy_of_law  moral_philosophy  Aristotle  virtue_ethics  phronesis  eudaimonia  justice  torts  law-and-economics  civic_virtue  judiciary  juddgment-moral  judgment-aesthetics  judgment-political  downloaded  EF-add 
july 2014 by dunnettreader
"PROLEGOMENA TO A PROCESS THEORY OF NATURAL LAW" by Mark C. Modak-Truran
Mark C. Modak-Truran, Mississippi College School of Law -- Two contemporary quandaries in legal theory provide an occasion for a revival of interest in natural law theories of law. First, the debate about legal indeterminacy has made it clear that law cannot function autonomously—as a self-contained set of rules—but requires a normative justification of judges’ decisions in hard cases. In addition, Steven D. Smith has persuasively argued that there is an "ontological gap" between the practice of law, which presupposes a classical or religious ontology, and legal theory, which presupposes a scientific ontology (i.e., scientific materialism) that rejects religious ontology. This article demonstrates how the process philosophy of Alfred North Whitehead and the radical empiricism of William James support a new process theory of natural law. Under this theory, judges resolve legal indeterminacy by determining what maximizes the telos beauty—in accordance with the circumstances of the case and the social perfection possible within that society—rather than by relying on fixed, antiquated natural laws. Process natural law also closes the ontological gap by providing an ontology that unifies the moral insights of religion with the insights of modern science. -- Mark C. Modak-Truran. "PROLEGOMENA TO A PROCESS THEORY OF NATURAL LAW" HANDBOOK OF WHITEHEADIAN PROCESS THOUGHT (1st ed). Ed. Michel Weber and Will Desmond. Frankfurt: Ontos Verlag, 2008. 507-536. -- downloaded pdf to Note
philosophy_of_law  political_philosophy  legal_history  legal_theory  natural_law  foundationalism  anti-foundationalism  social_theory  process_theology  laws_of_nature  divine_command  divine_right  legitimacy  authority  Whitehead  James_William  moral_philosophy  materialism  reductionism  science-and-religion  theology  ancient_philosophy  republics-Ancient_v_Modern  pragmatism  legal_indeterminancy  downloaded  EF-add 
july 2014 by dunnettreader
Brian Bix - On Philosophy in American Law: Analytical Legal Philosophy :: SSRN in PHILOSOPHY IN AMERICAN LAW, Francis J. Mootz, III, ed., Cambridge University Press, 2009
This short article was written for a collection on American legal philosophy today. It gives a brief overview of analytical legal philosophy, and speculates on why this theoretical approach has been consistently misunderstood in the United States, from the time of the legal realists until today. --Number of Pages in PDF File: 6 -- Keywords: analytical legal philosophy, legal theory, legal positivism
article  books  SSRN  intellectual_history  19thC  20thC  philosophy_of_law  analytical_philosophy  legal_realism  positivism-legal  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - The End of Empire: Dworkin and Jurisprudence in the 21st Century (2005) :: SSRN
U of Texas Law, Public Law Research Paper No. 70 -- This essay (based on a keynote address to the inaugural conference of the new Rutgers Institute for Law and Philosophy) reviews five major developments in the field of law and philosophy over the past 30 years, examining, in particular, the place of the well-known work of Ronald Dworkin, work which has loomed larger outside the field than within. In particular, it argues that the seven most distinctive Dworkinian theses about the nature of law and adjudication have now been extensively and decisively criticized over the past three decades, so much so that Dworkin himself has abandoned several of them. While Dworkin's work was indisputably important for the development of legal positivism in the final quarter of the twentieth-century, the essay shows why it is unlikely to play much role in jurisprudence of the 21st century. -- Number of Pages in PDF File: 22 -- downloaded pdf to Note
article  SSRN  intellectual_history  20thC  post-WWII  social_sciences-post-WWII  philosophy_of_law  moral_philosophy  positivism-legal  Dworkin  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Is There an 'American' Jurisprudence? - review essay of Neil Duxbury, PATTERNS OF AMERICAN JURISPRUDENCE (Oxford University Press, 1995) :: SSRN
C U of Texas Law, Public Law Research Paper No. 74

Abstract:
This is a review essay discussing Neil Duxbury's book PATTERNS OF AMERICAN JURISPRUDENCE (Oxford University Press, 1995), taking issue, in particular, with Professor Duxbury's misunderstandings of (1) American Legal Realism, (2) Critical Legal Studies, and (3) the relationship between economic analysis of law and Legal Realism. The essay also addresses the question whether it is fruitful to think of jurisprudential movements in terms of their geographic boundaries. - Number of Pages in PDF File: 32 - downloaded pdf to Note
books  reviews  SSRN  philosophy_of_law  intellectual_history  20thC  legal_realism  Critical_Legal_Studies  law-and-economics  bibliography  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Objectivity, Morality and Adjudication :: SSRN In OBJECTIVITY IN LAW AND MORALS, Brian Leiter, Cambridge University Press, 2001
Two familiar features of Dworkin's theory of adjudication generate a strange predicament. Dworkin maintains that most cases, including most "hard" cases, have "right answers." Yet he also argues that to discover that right answer, judges must avail themselves of moral considerations and moral argument: a party's rights follow from the principle which explains some significant portion of the prior institutional history and provides the best justification for that institutional history as a matter of political morality. Yet if morality is, as many seem to think, "subjective" in some sense, then there may be as many right answers as a matter of morality as there are judges and thus, consequently, no single right answer as a matter of law. Dworkin's response asks us to distinguish between sensible, but defeasible, "internal" attacks on the objectivity of morality, from unintelligible, and irrelevant, "external" attacks on the objectivity of morality. Dworkin's internal/external distinction may be usefully recast as two competing paradigms of objectivity. ... by the "Naturalistic Conception," objectivity in any domain must be understood on the model of the natural sciences, whose objects of study are objective in the sense of being "mind-independent" and causally efficacious. The "Non-Naturalistic Conception," by contrast, denies that the type of objectivity found in the natural sciences is the relevant type of objectivity to aspire to in all domains. Dworkin's version of Non-Naturalism bears a striking similarity to John McDowell's. I conclude that neither version provides an adequate account of objectivity: they fail to explain basic intuitions about objectivity (even in ethics), as well as leaving us with a picture of the "objectivity" of ethics that would, in fact, be quite congenial to the non-cognitivism that both McDowell and Dworkin purport to have left behind. -- Number of Pages in PDF File: 42
books  SSRN  philosophy_of_law  moral_philosophy  metaethics  morality-objective  objectivity  legal_validity  naturalism  epistemology-moral  reason-passions  reasons  reasons-internalism  reasons-externalism  judiciary  bibliography  EF-add 
july 2014 by dunnettreader
Brian Leiter - Explaining Theoretical Disagreement (2007) :: SSRN
Cited a number of times of Texas Law, Public Law Research Paper No. 124 -- Shapiro (2007) argues that Dworkin posed a new objection to legal positivism in Law's Empire, to which positivists, he says, have not adequately responded. Positivists, the objection goes, have no satisfactory account of what Dworkin calls "theoretical disagreement" about law, that is, disagreement about "the grounds of law" or what positivists would call the criteria of legal validity. I agree with Shapiro that the critique is new, and disagree that it has not been met. Positivism can not offer an explanation that preserves the "face value" of theoretical disagreements, because the only intelligible dispute about the criteria of legal validity is an empirical or "head count" dispute, i.e., a dispute about what judges are doing, and how many of them are doing it. Positivism, however, has two other explanations for theoretical disagreement - either theoretical disagreements are disingenuous, in the sense that the parties, consciously or unconsciously, are really trying to change the law,...or they are simply in error, that is, ...there is no fact of the matter about the grounds of law in this instance precisely because there is no convergent practice of behavior among officials constituting a Rule of Recognition. The "Disingenuity" and "Error Theory" accounts of theoretical disagreement are explored, with attention to the theoretical desiderata (e.g., simplicity, consilience, methodological conservativism) at stake in choosing between competing explanatory theories. Particular attention is given to the best explanation for Riggs v. Palmer -- Number of Pages: 44
paper  SSRN  philosophy_of_law  sociology_of_law  positivism-legal  foundationalism  Dworkin  legal_validity 
july 2014 by dunnettreader
Ronald J. Allen, Brian Leiter - Naturalized Epistemology and the Law of Evidence :: SSRN - Virginia Law Review, 2001
This paper looks at important developments in epistemology, and demonstrates that naturalized epistemology provides a firm conceptual foundation for much research into law of evidence. These developments in epistemology have not been much noted in legal scholarship, despite their importance in philosophy and their coincidence with some widely shared approaches to evidence scholarship. This article is a partial antidote for the unproductive fascination in some quarters of the legal academy with "postmodern" conceptions of knowledge and truth and to the even more common search by the legal professoriat for algorithms that provide answers to important legal questions, such as Bayesian decision theory or micro-economics. The article argues that the naturalistic turn in epistemology of the past thirty years (especially that branch known as social epistemology) provides the appropriate theoretical framework for the study of evidence, as it does for virtually any enterprise concerned with the empirical adequacy of its theories and the truth-generating capacity of its methodologies. It also provides a way to conceptualize and evaluate specific rules of evidence, and concomitantly explains what most evidence scholars do, regardless of their explicit philosophical commitments. For the great bulk of evidentiary scholars, this article should solidify the ground beneath their feet. -- Number of Pages in PDF File: 78 - large bibliography -- downloaded pdf to Note
article  SSRN  philosophy_of_law  epistemology-social  analytical_philosophy  evidence  naturalism  sociology_of_knowledge  methodology  decision_theory  law-and-economics  Bayesian  bibliography  downloaded  EF-add 
july 2014 by dunnettreader
Jeremy Waldron Who Needs Rules of Recognition? by :: SSRN in THE RULE OF RECOGNITION AND THE U.S. CONSTITUTION, Matthew Adler and Kenneth Himma, eds., Oxford University Press, 2009
NYU School of Law, Public Law Research Paper No. 09-21 -- I argue against the idea (made popular by H.L.A. Hart) that the key to a legal system is its "rule of recognition." I argue that much of the work allegedly done by a rule of recognition is either done by a different kind of secondary rule (what Hart called "a rule of change") or it is not done at all (and doesn't have to be done). A rule of change tells us the procedures that must be followed and the substantive conditions that must be satisfied if law is to be changed legislatively; and a judge "recognizes" changes simply by using this checklist. In common law, there is no clear rule of change (because we are profoundly ambivalent about judicial lawmaking). But we get by without one, and without a determinate rule of recognition that would tell us precisely how to infer rules from precedents. It is quite liberating, really, to abandon the idea of a rule of recognition. Apart from anything else, it relieves us from having to participate in endless debates about whether the US Constitution is (or contains) a rule of recognition for American law. The Constitution contains rules of change; that's what matters. -- Number of Pages in PDF File: 28 -- Keywords: certainty, closure, common law, constitution, grundnorm, H.L.A. Hart, Hans Kelsen, Jeremy Bentham, jurisprudence, legal positivism, rule of change, rule of recognition -- downloaded pdf to Note
article  books  SSRN  philosophy_of_law  political_philosophy  legal_system  sociology_of_law  legal_validity  constitutionalism  positivism-legal  common_law  change-social  institutional_change  legislation  judiciary  precedent  judicial_review  foundationalism  US_constitution  Bentham  Hart  Kelsen  downloaded  EF-add 
july 2014 by dunnettreader
Scott J. Shapiro - What is the Rule of Recognition (and Does it Exist)? [chapter] :: SSRN in THE RULE OF RECOGNITION AND THE U.S. CONSTITUTION, Matthew Adler, Kenneth Himma, eds., Oxford University Press, 2009
Yale Law School, Public Law Working Paper No. 184 -- One of the principal lessons of The Concept of Law is that legal systems are not only comprised of rules, but also founded on them ....we cannot account for the way we talk and think about the law - as an institution which persists over time, imposes duties and confers powers, enjoys supremacy over other kinds of practices, resolves doubts and disagreements about what is to be done in a community and so on - without supposing that it is regulated by what he called the secondary rules of recognition, change and adjudication. -- In Part 1 I try to state Hart's doctrine of the rule of recognition with some precision. -- I also explore in this part whether the US Constitution can be considered the Hartian rule of recognition for the US legal system. In Part 2 I attempt to detail the many roles that the rule of recognition plays within Hart's theory of law. -- In Part 3 I examine three important challenges to Hart's doctrine: 1) the rule is under- and over-inclusive; 2) Hart cannot explain how social practices are capable of generating rules that confer powers and impose duties and hence cannot account for the normativity of law; 3) Hart cannot explain how disagreements about the criteria of legal validity that occur within actual legal systems are possible. In Parts 4 & 5, I address these objections. ...athough Hart's particular account of the rule of recognition is flawed, a related notion should be substituted - roughly, to treat the rule of recognition as a shared plan which sets out the constitutional order of a legal system. As I try to show, understanding the rule of recognition in this new way allows the legal positivist to overcome the challenges lodged against Hart's version while still retaining the power of the original idea. -- downloaded pdf to Note
article  books  SSRN  philosophy_of_law  legal_system  social_theory  social_order  political_order  change-social  institutions  constitutions  constitutional_law  constitutionalism  normativity  norms  obligation  institutional_change  positivism-legal  Hart  Dworkin  Raz  Finnis  US_constitution  conflict_of_laws  natural_law  legal_validity  legal_realism  sociology_of_law  community  planning  downloaded  EF-add 
july 2014 by dunnettreader
Oona A. Hathaway, Scott J. Shapiro - Outcasting: Enforcement in Domestic and International Law :: SSRN - Yale Law Journal, Vol. 121, No. 2, p. 252, 2011
Yale Law School, Public Law Working Paper No. 240 -- This Article offers a new way to understand the enforcement of domestic and international law that we call “outcasting.” Unlike the distinctive method that modern states use to enforce their law, outcasting is nonviolent: it does not rely on bureaucratic organizations, such as police or militia, that employ physical force to maintain order. Instead, outcasting involves denying the disobedient the benefits of social cooperation and membership. Law enforcement through outcasting in domestic law can be found throughout history - from medieval Iceland and classic canon law to modern-day public law. And it is ubiquitous in modern international law, from the World Trade Organization to the Universal Postal Union to the Montreal Protocol. Across radically different subject areas, international legal institutions use others (usually states) to enforce their rules and typically deploy outcasting rather than physical force. Seeing outcasting as a form of law enforcement not only helps us recognize that the traditional critique of international law - that it is not enforced and is therefore both ineffective and not real law - is based on a limited and inaccurate understanding of law enforcement. It also allows us to understand more fully when and how international law matters. -- Number of Pages in PDF File: 98 -- Keywords: international law, treaties, World Trade Organization, Enforcement, jurisprudence
article  SSRN  philosophy_of_law  legal_system  international_system  international_law  international_organizations  treaties  enforcement  exclusion  excommunication  cooperation  punishment  sanctions  EF-add 
july 2014 by dunnettreader
Jeremy Waldron - A Religious View of the Foundations of International Law (2011) :: SSRN - Charles E. Test Lectures in the James Madison Program at Princeton University
NYU School of Law, Public Law Research Paper No. 11-29 -- Lecture 1 begins from a specifically Christian point of view, though it also addresses the difficulties of sustaining a viewpoint of this kind in a multi-faith and indeed increasingly secular world. Lecture 2 considers nationhood, sovereignty, and the basis for the division of the world into separate political communities. A religious approach to international order will endorse the position of most modern international jurists that sovereign independence is not to be made into an idol or a fetish, and that the tasks of order and peace in the world are not to be conceived as optional for sovereigns. But sovereigns also have their own mission, ordering particular communities of men and women. Lecture 3 considers the rival claims of natural law and positivism regarding sources of international law. The most telling part of natural law jurisprudence from Aquinas to Finnis has always been its insistence on the specific human need for positive law. This holds true in the international realm as much as in any realm of human order - perhaps more so, because law has to do its work unsupported by the overwhelming power of a particular state. Lecture 3 addresses, from a religious point of view, the sources of law in the international realm: treaty, convention, custom, precedent, and jurisprudence. It will focus particularly on the sanctification of treaties. -- No of Pages : 73 -- Keywords: customary international law, international law, ius cogens, nationalism, natural law, positivism, public reason, religion, self-determination, sovereignty, treaties -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  international_law  natural_law  positivism-legal  IR  IR_theory  diplomacy  international_organizations  legal_system  international_system  sovereignty  nation-state  nationalism  public_sphere  liberalism-public_reason  deliberation-public  decision_theory  customary_law  self-determination  national_interest  national_security  responsibility_to_protect  treaties  universalism  precedent  conflict_of_laws  dispute_resolution  human_rights  community  trust  alliances  politics-and-religion  jurisprudence  jurisdiction  downloaded  EF-add 
july 2014 by dunnettreader
Jeremy Waldron - The Principle of Proximity (2011) :: SSRN
NYU School of Law, Public Law Research Paper No. 11-08 -- How should we think about, how should we model the basis of political community. To the extent that it is a matter of choice, what should be the basis on which the people of the world divide themselves up into distinct political communities. This paper seeks to cast doubt on the proposition that it is a good idea for people to form a political community exclusively with those who share with them some affinity or trust based on culture, language, religion, or ethnicity. I want to cast doubt on that proposition by articulating an alternative approach to the formation of political communities, which I shall call the principle of proximity. People should form political communities with those who are close to them in physical space, particularly those close to them whom they are otherwise like to fight or to be at odds with. This principle is rooted in the political philosophies of Hobbes and Kant. The suggestion is that we are likely to have our most frequent and most densely variegated conflicts with those with whom we are (in Kant’s words) “unavoidably side by side”, and the management of those conflicts requires not just law (which in principle can regulate even distant conflicts) but law organized densely and with great complexity under the auspices of a state. The paper outlines and discusses the proximity principle, and the conception of law and state that it involves, and defends it against the criticism that it underestimates the importance of pre-existing trust in the formation of political communities. -- Number of Pages in PDF File: 27 -- Keywords: community, conflict, ethnicity, Hobbes, identity, Kant, law, nationalism, proximity, state, state-building
paper  SSRN  political_philosophy  moral_philosophy  philosophy_of_law  social_theory  community  community-virtual  conflict  political_culture  state-building  rule_of_law  trust  ethnic_ID  national_ID  nation-state  nationalism  Kant  Kant-politics  Kant-ethics  Hobbes  sociability  EF-add 
july 2014 by dunnettreader
Jeremy Waldron - Citizenship and Dignity (2012) :: SSRN
NYU School of Law, Public Law Research Paper No. 12-74 -- Theories of dignity have to navigate between two conceptions: the egalitarian idea of human dignity and the old idea of dignitas, connected with hierarchy, rank, and office. One possible way of bridging the gap between the two is to talk of the dignity of the citizen. In modern republics and democracies, the dignity of the citizen extends to a large sector of the population and connotes something about the general quality of the relation between the government and the governed. This chapter first explores Immanuel Kant’s account of the dignity of the citizen, and then it pursues the implications of the dignity of the citizen for modern society and modern theories of human dignity. Though the dignity of the citizen and human dignity are not the same concept, they are congruent in many respects and the former casts considerable light on the latter — in particular on the connection between dignity and responsibility and dignity and transparency in social and political relations. -- Number of Pages in PDF File: 25 -- Keywords: citizenship, contractarianism, dignity, human dignity, Kant, responsibilities, transparency -- downloaded pdf to Note
paper  SSRN  intellectual_history  18thC  Enlightenment  modernity  moral_philosophy  philosophy_of_law  social_theory  democracy  republicanism  republics-Ancient_v_Modern  citizenship  citizens  dignity  Kant  Kant-politics  Kant-ethics  egalitarian  rank  social_order  social_contract  responsibility  office  commonwealth  common_good  fiduciaries  accountability  governing_class  transparency  inequality  political_participation  political_nation  political_economy  political_culture  governmentality  power-asymmetric  downloaded  EF-add 
july 2014 by dunnettreader
Jeremy Waldron - Socioeconomic Rights and Theories of Justice (2010) :: SSRN
NYU School of Law, Public Law Research Paper No. 10-79 -- This paper considers the relation between theories of justice (like John Rawls’s theory) and theories of socio-economic rights. In different ways, these two kinds of theory address much the same subject-matter. But they are quite strikingly different in format and texture. Theories of socio-economic rights defend particular line-item requirements: a right to this or that good or opportunity (e.g., housing, health care, education, social security). Theories of justice tend to involve a more integrated normative account of a society’s basic structure (though they differ considerably among themselves in their structure). So how exactly should we think about their relation? The basic claim of the paper is that we should strive to bring these two into closer relation with one another, since it is only in the context of a theory of justice that we can properly assesses the competition that arises between claims of socio-economic right and other claims on public and private resources. -- Number of Pages in PDF File: 31 -- Keywords: Nozick, Rawls, justice, human rights, rights, scarcity, socioeconomic rights
paper  SSRN  political_philosophy  moral_philosophy  philosophy_of_law  liberalism  libertarianism  social_order  norms  moral_economy  poverty  human_rights  inequality  Rawls  Nozick  property  common_good  commons  capitalism  political_economy  justice  power-asymmetric 
july 2014 by dunnettreader
Jeremy Waldron - The Decline of Natural Right [chapter] (2009) :: SSRN in THE CAMBRIDGE HISTORY OF NINETEENTH CENTURY PHILOSOPHY, Allen Wood and Songsuk Susan Hahn, eds., Cambridge University Press
NYU School of Law, Public Law Research Paper No. 09-38 -- What happened to the doctrine of natural right in the 19thC? We know that it flourished in the 17thC and 18thC. We know that something like it - the doctrine of human rights and new forms of social contract theory - flourished again in the second half of the 20thC and continues to flourish in the 21stC. In between there was a period of decline and hibernation - ... in which to invoke natural right was always to invite intellectual ridicule and accusations of political irresponsibility. Thus article asks: How far can the decline of natural right in the 19thC be attributed to the reaction against the revolution in France? How far it was the effect of independent streams of thought, like positivism and historicism? Why was radical thought so ambivalent about natural right throughout the 19thC, and why was socialist thought in particular inclined to turn its back on it? As a framework for thought, natural right suffered a radical decline in the social and political sciences. But things were not so clear in jurisprudence, and natural right lived on to a much riper old age in the writings of some prominent economists. What is it about this theory that allowed it to survive in these environments, when so much of the rest of intellectual endeavor in the 19thC was toxic or inhospitable to it. Finally, I shall ask how far American thought represents an exception to all of this. Why and to what extent did the doctrine survive as a way of thinking in the United States, long after it had lost its credibility elsewhere. -- downloaded pdf to Note
article  SSRN  intellectual_history  18thC  19thC  philosophy_of_law  philosophy_of_social_science  natural_law  natural_rights  human_rights  counter-revolution  historicism  positivism  legal_theory  nationalism  national_interest  conservatism  socialism  social_contract  relativism  revolutions  1848_revolutions  French_Revolution  anticlerical  Bentham  Burke  Hume  Jefferson  Kant  Locke  Marx  Mill  Savigny  Spencer_Herbert  George_Henry  US_society  American_exceptionalism  liberalism  social_theory  social_sciences  Social_Darwinism  social_order  mass_culture  political_participation  bibliography  downloaded  EF-add 
july 2014 by dunnettreader
Jeremy Waldron - The Image of God: Rights, Reason, and Order (2010) :: SSRN
NYU School of Law, Public Law Research Paper No. 10-85 -- The idea that humans are created in the image of God is often cited as a foundation for human rights theory. In this paper, this use of imago dei is surveyed, and while the paper is basically favorable to this foundation, it draws attention to some difficulties (both theological and practical) that using imago dei as a foundation for human rights may involve. Also it explores the suggestion that the image of God idea may be more apt as a foundation for some rights rather than others. Its use in relation to political rights is specifically explored. The moral of the discussion is that foundations do make a difference. We should not expect that, if we simply nail this idea onto the underside of a body of human rights theory as a foundation, everything in the theory will remain as it is. -- Number of Pages in PDF File: 21 -- Keywords: death penalty, foundationalism, human rights, image of God, political liberalism, political rights, religion, rights, secularism
paper  SSRN  philosophy_of_law  political_philosophy  moral_philosophy  imago_dei  foundationalism  human_rights  liberalism  rights-political  secularism  humanism  natural_rights  universalism  morality-Christian  morality-divine_command  EF-add 
july 2014 by dunnettreader
Jeremy Waldron - Secularism and the Limits of Community (2010) :: SSRN
NYU School of Law, Public Law Research Paper No. 10-88 -- This paper addresses two issues: (1) the use of religious considerations in social and political argument; and (2) the validation of the claims of community against markets and other aspects of globalization. It argues that we should be very wary of the association of (1) with (2), and the use of (1) to reinforce (2). The claims of community in the modern world are often exclusionary (the word commonly associated with community is "gated") and hostile to the rights of the poor, the homeless, the outcast, and so on. The logic of community in the modern world is a logic that reinforces market exclusion and the disparagement of the claims of the poor. If religious considerations are to be used to uphold those claims and to mitigate exclusion, they need to be oriented directly to that task, and to be pursued in ways that by-pass the antithetical claims of community. Religious considerations are at their most powerful in politics - and are most usefully disconcerting - when they challenge the logic of community. -- Number of Pages in PDF File: 27
paper  SSRN  philosophy_of_law  political_philosophy  political_economy  globalization  inequality  exclusion  markets  markets_in_everything  community  communitarian  politics-and-religion  Rawls  human_rights  rights-legal  protectionism  poverty  EF-add 
july 2014 by dunnettreader
Jeremy Waldron - The Hamlyn Lectures 2011: The Rule of Law and the Measure of Property (2011) :: SSRN
NYU School of Law, Public Law Research Paper No. 11-47 -- The idea in these lectures is to discuss the relation between property and the rule of law in a deeper way than this has been discussed in the past, ...that reflects realistic understanding of how property rights are created and modified. -- our thinking about the rule of law needs to focus on all the ways in which property is non-Lockean in its origin, legal status, and moral force. In the course of doing this, I will be looking at some of the rather naive assumptions underlying the tight connection that has been forged between property rights and the rule of law in neo-liberal political economy. And I will argue that we can abandon or modify some of these naive assumptions about property without compromising the very great importance that is properly attached to the ideal of the rule of law. There are three lectures in all. -- Lecture 1 addresses the alleged contrast between (a) the rule of law and (b) rule by law, and the suggestion that property rights might be privileged under (a). -- in the real world even Lockean property has an inescapable public law dimension. Lecture 2... is about the contrast between formal/procedural and substantive views of the rule of law and the dificulties inherent in identifying respect for private property rights as a substantive dimension of the rule of law. ...given the accordion-like expandability of the category of property, this cannot work to privilege property rights over other legal rights etc. Lecture 3 is a defense of legislation, including regulatory and redistributive legislation in light of the rule of law. -- downloaded pdf to Note
article  SSRN  philosophy_of_law  political_philosophy  political_economy  property  property_rights  rule_of_law  regulation  redistribution  Locke-2_Treatises  Hayek  libertarianism  liberty-negative  legislation  property-confiscations  power-asymmetric  social_order  neoliberalism  markets  institutional_economics  downloaded  EF-add 
july 2014 by dunnettreader
Jeremy Waldron - What are Moral Absolutes Like? (2011) :: SSRN
NYU School of Law, Public Law Research Paper No. 11-62 -- This paper (originally presented as the Harvard Review of Philosophy Annual Guest Lecture in April 2011) explores the challenges involved in stating, characterizing and defending moral absolutes. The first part of the paper looks at the formulation of moral absolutes: must we assume that they are simple, directly prescriptive or prohibitive, not loaded with thick moral terms (as in "Do not kill the innocent"), etc? The paper compares the formulation of moral absolutes with the formulation of legal absolutes. And it considers some philosophical work on the subject, by Anscombe, Hare, Kant, and Finnis. The second part of the paper examines the ways in which moral absolutes – such as the rule against torture – deal with the burden of the humanitarian considerations arrayed against them in e.g. "ticking bomb" hypotheticals. ...the most powerful challenge is that posed by Bentham ... who imagined that torturing one person may be the only way to save hundreds of people from being tortured. -- ...opponents of torture have made things too easy for themselves in just focusing on how bad (depraved, brutal, violative, etc.) torture really is. ..., the paper indicates a number of possible lines of inquiry – one in particular involving the idea of "tainted goods," -- and a number of other lines are explored. Along the way, the paper takes a couple of sly kicks at something called "threshold deontology." But at the end, ... much more work to be done. -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  moral_philosophy  metaethics  morality-objective  rights-legal  norms  torture  Anscombe  Finnis  Kant-ethics  morality-divine_command  deontology  consequentialism  downloaded  EF-add 
july 2014 by dunnettreader
Jeremy Waldron - Jurisprudence for Hedgehogs (2013) :: SSRN
NYU School of Law, Public Law Research Paper No. 13-45 -- The aims of this essay are, first, to present the jurisprudential position that Ronald Dworkin set out in his penultimate book, Justice for Hedgehogs (2011); and, secondly, to elaborate it a little further than Dworkin himself was able to. The position is a distinctive and interesting one. Although Professor Dworkin argued in all his earlier work that moral facts (about rights and justice) were among the truth conditions of legal propositions, now in Justice for Hedgehogs he argued that law is itself a branch of morality. This is a bolder and more radical claim and it requires some quite careful exposition to see how it might be made plausible. -- Number of Pages in PDF File: 32. -- Keywords: Dworkin, law, legislation, morality, natural law, positivism, Raz, separation thesis -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  legal_system  moral_philosophy  natural_law  positivism-legal  legislation  legal_validity  Raz  Dworkin  downloaded  EF-add 
july 2014 by dunnettreader
Jeremy Waldron - Accountability: Fundamental to Democracy (2014, updated March 2015) :: SSRN
NYU School of Law, Public Law Research Paper No. 14-13 -- This paper defends a new and aggressive version of the agency model of accountability. It argues that officials and representatives in a democracy have an obligation to make available to citizens full information about what they have been doing. It is not permissible for them to sit back and see if the citizens can find out for themselves what they have been doing, any more than such a posture would be admissible in a commercial agent such as a realtor or an accountant. The paper also does several other things: (1) it develops a contrast between agent-accountability and forensic-accountability; (2) it distinguishes between political uses of "agency" and political uses of "trust" in political theory; (3) it develops a layered account of the principals in the democratic relation of agent-accountability, rejecting the reidentification of "the people"; (4) it develops an account of the relation between accountability and elections, emphasizing that elections play an important role in the fair settlement among principals as to how they should deal with their agents; (5) it shows that Burkeian representation is not incompatible with agent-accountability; and (6) it uses the notion of agent-accountability to illuminate the distinction between non-democratic and democratic republics. -- Number of Pages in PDF File: 32 -- Keywords: accountability, agency, Burke, democracy, elections, representation, republic, transparency, trust
paper  SSRN  political_philosophy  philosophy_of_law  legal_system  constitutionalism  democracy  accountability  transparency  agents  representative_institutions  common_good  national_interest  elections  fiduciaries  trust  trusts  government-forms  governing_class  government_officials  office  Burke  downloaded  EF-add 
july 2014 by dunnettreader
Jeremy Waldron - The Concept and the Rule of Law (2008) :: SSRN - Georgia Law Review, Forthcoming
NYU School of Law, Public Law Research Paper No. 08-5 -- This article explores and connects two issues: (1) the relation between the Rule of Law (or legality) and the work we do in general jurisprudence on the concept of law; and (2) the distinction between conceptions of the Rule of Law that emphasize certainty, rules, and predictability and conceptions of the Rule of Law that also emphasize procedure and argument, even when legal argumentation detracts from the certainty emphasized the first set of conceptions. It argues (1) in favour of a more demanding understanding of what law is (informed by the ideal of the Rule of Law) and against "casual positivism" that takes almost any instance of centralized command and control as a legal system. And it argues (2) in favour of a procedural and argumentative conception of the Rule of Law. It connects the two arguments by observing that casual positivism is commonly associated with an impoverished rule-oriented understanding of the Rule of Law is associated commonly; and (following Dworkin and MacCormick) it suggests that a jurisprudence that emphasizes the role of legal argumentation and the institutions that sponsor it, will inevitably bring our conceptions of law and legality very close together. -- Number of Pages in PDF File: 67 -- Keywords: general jurisprudence, Hart, legality, positivism, procedure, Rule of Law -- downloaded pdf to Note
article  SSRN  philosophy_of_law  political_philosophy  legal_validity  rule_of_law  positivism-legal  procedure-legal  Hart  institutions  decision_theory  governmentality  competition  downloaded  EF-add 
july 2014 by dunnettreader
Jeremy Waldron - Human Rights: A Critique of the Raz/Rawls Approach (2013) :: SSRN
NYU School of Law, Public Law Research Paper No. 13-32 -- This paper examines and criticizes the suggestion that we should interpret the “human” in “human rights” as (i) referring to the appropriate sort of action when certain rights are violated rather than (ii) the (human) universality of certain rights. It considers first a crude version of (i) — the view that human rights are rights in response to whose violation we are prepared to countenance humanitarian intervention; then it considers more cautious and sophisticated versions of (i). It is argued that all versions of (i) distract us with side issues in our thinking about human rights, and sell short both the individualism of rights and the continuity that there is supposed to be between human rights and rights in national law. The paper does not deny that there are difficulties with views of type (ii). But it denies that the positing of views of type (i) gives us reason to abandon the enterprise of trying to sort these difficulties out. -- Number of Pages in PDF File: 22 -- Keywords: Charles Beitz, John Rawls, Joseph Raz, human rights, humanitarian intervention, rights, sovereignty, universalism
paper  SSRN  philosophy_of_law  political_philosophy  moral_philosophy  international_system  international_law  human_rights  humanitarian  interventionism  sovereignty  universalism  civil_liberties  nation-state  Rawls  Raz 
july 2014 by dunnettreader
Jeremy Waldron - International Law: 'A Relatively Small and Unimportant' Part of Jurisprudence? (2013) :: SSRN
NYU School of Law, Public Law Research Paper No. 13-56 This paper evaluates and criticizes the account of international law given in Chapter Ten of H.L.A. Hart's book, The Concept of Law. Hart's account offers a few insights -- particularly on the relation between law and sanctions. But his account of international law is moistly quite impoverished. His observations about the absence of secondary rules (rules of change, adjudication, and recognition ) in international law are quite unjustified. His exaggeration of the difference between international law and municipal legal systems is so grotesquely exaggerated, as to deprive the former account of almost all its utility in jurisprudence. What is worse, his dismissive and misconceived account of international law has tended to drive practitioners of analytic legal philosophy away form addressing this important area of jurisprudence. -- Number of Pages in PDF File: 17 -- Keywords: gnereal jurisprudence, Hart, international law, primitive legal system, rule of recognition, sanctions, secondary rules, treaties -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  legal_system  international_system  international_law  sanctions  enforcement  change-social  diplomacy  treaties  international_organizations  sovereignty  institutions  continuity  legal_validity  downloaded  EF-add 
july 2014 by dunnettreader
Jeremy Waldron - Does ‘Equal Moral Status’ Add Anything to Right Reason? (2011) :: SSRN
NYU School of Law, Public Law Research Paper No. 11-52 -- This paper explores the possibility that the principle of basic equality might be explicated by reference to the idea that humans constitute a "single-status" community. It explores some difficulties with the idea of status in its original legal habitat. These difficulties include skepticism about status fostered by John Austin and others. The paper attempts to answer this skepticism, and it concludes (along with Jeremy Bentham, who in this respect disagreed with his disciple) that once one takes a dynamic view of a legal system, the idea of legal status is not an eliminable idea. The paper then examines the distinction between what I call "sortal-status" and "condition-status." Sortal status works from the idea that law recognizes different kinds of human being: racist and sexist legal systems are characterized by sortal-status concepts. Condition-status recognizes that persons may get into various scrapes, situations, conditions, and vicissitudes, or pass through certain stages, that are marked by status distinctions. (These include infancy, alienage, felony, bankruptcy, matriage, military service etc.) Once one makes this distinction, then the idea of a single (sortal) status society becomes a promising vehicle for expressing ideas about moral equality. -- Number of Pages in PDF File: 19 -- Keywords: Austin, Bentham, equality, legal system, racial discrimination, sex discrimination, status
paper  SSRN  philosophy_of_law  legal_system  political_philosophy  moral_philosophy  social_theory  equality  status  discrimination  social_order  civil_society  civil_liberties  Bentham  Austin_John  intellectual_history  18thC  19thC  20thC  21stC  downloaded  EF-add 
july 2014 by dunnettreader
Jeremy Waldron - What is Natural Law Like? (2012) :: SSRN
NYU School of Law, Public Law Research Paper No. 12-27 -- “The State of Nature,” said John Locke, “has a Law of Nature to govern it, which obliges every one.” But what is “a law of nature”? How would we tell, in a state of nature, that there was a natural law as opposed to something else...? What form should we expect natural law to take in our apprehension of it? This paper argues three things. (a) John Finnis’s work on natural law provides no answer to these questions; his “theory of natural law” is really just a theory of the necessary basis in ethics for evaluating positive law. (b) We need an answer to the question “What is natural law like” not just to evaluate the work of state-of-nature theorists like Locke, but also to explore the possibility that natural law might once have played the role now played by positive international law in regulating relations between sovereigns. And (c), an affirmative account of what natural law is like must pay attention to (1) its deontic character; (2) its enforceability; (3) the ancillary principles that have to be associated with its main normative requirements if it is to be operate as a system of law; (4) its separability ...from ethics and morality, even from objective ethics and morality; and (5) the shared recognition on earth of its presence in the world. Some of these points — especially 3, 4, and 5 — sound like characteristics of positive law. But the paper argues that they are necessary nevertheless if it is going to be plausible to say that natural law has ever operated (or does still operate) as law in the world. -- Number of Pages: 21 -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  political_philosophy  moral_philosophy  intellectual_history  17thC  18thC  19thC  IR  IR_theory  international_law  international_system  sovereignty  natural_law  positive_law  norms  Aquinas  Locke  Locke-2_Treatises  state-of-nature  enforcement  legal_validity  Finnis  downloaded  EF-add 
july 2014 by dunnettreader
Scott J. Shapiro - What is the Internal Point of View? (2006 working paper) :: SSRN
In "The Concept of Law," Hart showed that sanction-centered accounts of every stripe ignored an essential feature of law. This feature he termed the internal point of view. Seen from the internal point of view, the law is not simply sanction-threatening, directing, or predicting, but rather obligation-imposing. Though the internal point of view is perhaps Hart's greatest contribution to jurisprudential theory, this concept is also often and easily misunderstood. This is unfortunate, not only because these misreadings distort Hart's theory, but, more importantly, because they prevent us from appreciating the true infirmities of sanction-centered theories and the compelling reasons why they ought to be rejected. -- The internal point of view is the practical attitude of rule-acceptance - it does not imply that people who accept the rules accept their moral legitimacy, only that they are disposed to guide and evaluate conduct in accordance with the rules. The internal point of view plays four roles in Hart's theory: (1) it specifies a particular type of motivation that someone may take towards to the law; (2) it constitutes one of the main existence conditions for social and legal rules; (3) it accounts for the intelligibility of legal practice and discourse; (4) it provides a naturalistically acceptable semantics for legal statements. Finally, sanction-centered theories are unacceptable for three reasons: (1) they are myopic in that they ignore one of the motivations that people might have for obeying the law; (2) they are unable to account for the existence of legal systems; (3) they cannot account for the intelligibility of legal practice and discourse. --
paper  SSRN  philosophy_of_law  social_theory  intellectual_history-distorted  20thC  21stC  Hart  positivism-legal  sociology_of_law  legal_system  norms  normativity  obligation  moral_psychology  morality-conventional  moral_sentiments  punishment  reasons-internalism  reasons-externalism  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - The Case Against Free Speech (July 2014 working paper) :: SSRN
Free societies employ a variety of institutions — including courts and schools — in which speech is heavily regulated on the basis of its content ... in order to promote other desirable ends, including discovery of the truth. I illustrate this with the case of courts and rules of evidence. Three differences between courts and the polity might seem to counsel against extending that approach more widely. First, the courtroom has an official and somewhat reliable (as well as reviewable) arbiter of the epistemic merits, while the polity may not. Second, no other non-epistemic values of speech are at stake in the courtroom, whereas they are in the polity. Third, the courtroom’s jurisdiction is temporally limited in a way the polity’s may not be. I argue that only the first of these poses a serious worry about speech regulation outside select institutions like courts. I also argue for viewing "freedom of speech" like "freedom of action": speech, like everything else human beings do, can be for good or ill... and thus the central question in free speech jurisprudence should really be how to regulate speech effectively — to minimize its very real harms, without undue cost to its positive values — rather than rationalizing (often fancifully) the supposed special value of speech. In particular, I argue against autonomy-based defenses of a robust free speech principle. I conclude that the central issue in free speech jurisprudence is not about speech but about institutional competence; I offer some reasons — from the Marxist "left" and the public choice "right"— for being skeptical that capitalist democracies have the requisite competence; and make some suggestive but inconclusive remarks about how these defects might be remedied. - No of Pages: 41
paper  SSRN  philosophy_of_law  political_philosophy  free_speech  Mill  Hayek  Adorno  Frankfurt_School  Kant  Kant-ethics  Marx  autonomy  networks-information  evidence  epistemology-social  education  regulation  public_choice  public_sphere  public_opinion  political_participation  competition 
july 2014 by dunnettreader
Brian Leiter - The Demarcation Problem in Jurisprudence: A New Case for Skepticism :: SSRN - Oxford Journal of Legal Studies, Vol. 32, No. 1, Spring 2012
Legal philosophers have been preoccupied with specifying the differences between two systems of normative guidance - law and morality. Positivists such as Kelsen, Hart, and Raz propose a solution to this “Demarcation Problem” according to which the legal validity of a norm can not depend on its being morally valid, either in all or at least some possible legal systems. The proposed analysis purports to specify the essential and necessary features of law.... Yet the concept of law is an “artifact concept,” that is, a concept that picks out a phenomenon that owes its existence to human activities. Artifact concepts, even simple ones like “chair,” are notoriously resistant to analyses in terms of their essential attributes, precisely because they are hostage to human ends and purposes, and also can not be individuated by their natural properties. 20th-century philosophy of science dealt with a kindred Demarcation Problem: ...how to demarcate science from pseudo-science or nonsense. -- they sought to identify the essential properties of a human artifact (namely, science). They failed, and spectacularly so, which led some philosopher to wonder, “Why does solving the Demarcation Problem matter?” This essay develops the lessons for legal philosophy -- lest we want to become embroiled in pointless Fullerian speculations about the effects of jurisprudential doctrines on behavior, it is time to abandon the Demarcation Problem in jurisprudence. -- downloaded pdf to Note
article  SSRN  philosophy_of_law  20thC  21stC  Logical_Positivism  linguistic_turn  concepts  analytical_philosophy  essentialism  natural_kinds  modal_logic  moral_philosophy  moral_psychology  legal_system  positivism-legal  psychologism  natural_law  epistemology-social  epistemology-moral  Carnap  Hempel  Popper  Fuller  Hart  Kelsen  Raz  Finnis  normativity  moral_sentiments  reason-passions  reasons-internalism  reasons-externalism  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Naturalizing Jurisprudence: Three Approaches [chapter] :: SSRN in THE FUTURE OF NATURALISM, J. Shook & P. Kurtz, eds., Prometheus Books, Amherst, NY, 2009
U of Chicago, Public Law Working Paper No. 246 -- General jurisprudence - that branch of legal philosophy concerned with the nature of law and adjudication - has been relatively unaffected by the "naturalistic" strains so evident, for example, in the epistemology, philosophy of mind and moral philosophy of the past forty years. This paper sketches three ways in which naturalism might affect jurisprudential inquiry. The paper serves as a kind of precis of the main themes in my book NATURALIZING JURISPRUDENCE: ESSAYS ON AMERICAN LEGAL REALISM AND NATURALISM IN LEGAL PHILOSOPHY (Oxford University Press, 2007). -- Number of Pages in PDF File: 16 -- Keywords: jurisprudence, naturalism, legal realism, quine, epistemology
article  books  SSRN  philosophy_of_law  analytical_philosophy  naturalism  epistemology  metaphysics  mind  mind-body  consciousness  Quine  moral_philosophy  moral_psychology  human_nature  epistemology-moral  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Holmes, Nietzsche & Classical Realism (2000) :: SSRN
U Texas School of Law Pub. Law Working Paper No. 003 -- The point of departure is Richard Posner's striking suggestion that Holmes is "the American Nietzsche." -- The Essay argues that the real thematic (and tempermental) affinity between Holmes and Nietzsche lies in the fact that both are proponents of a general, but neglected, perspective on questions of moral, political, and legal theory that I will call "Classical Realism." Importantly, the Classical Realism of Holmes and Nietzsche places them in a long tradition of theories of morals, politics, and society that we find in writers like Thucydides, Machiavelli, Freud and (to some extent) Marx, among others. This tradition, however, has almost vanished from the modern academy. It is the most general aim of this paper to revive the doctrine of Classical Realism as a serious--albeit debunking--position in normative theory. -- a meaning both older than and different from that current in academic debates, especially in philosophy, where it names certain doctrines in semantics and metaphysics. Classical Realism...entails no particular semantic and metaphysical doctrines at all. [It] denotes a certain hard-headed, unromantic, uncompromising attitude towards the world, which manifests itself in a brutal honesty and candor in the assessment of human motives and the portrayal of human affairs. The Essay explores this doctrine in some detail in a variety of thinkers, including Holmes, Posner, Nietzsche, Marx, and the American Legal Realists. The Appendix to the Essay offers a critical discussion of Posner's and David Luban's treatment of the Holmes-Nietzsche relation. -- downloaded pdf to Note
paper  SSRN  intellectual_history  social_theory  political_philosophy  moral_philosophy  moral_psychology  philosophy_of_law  realism  legal_realism  Thucydides  Machiavelli  Marx  Nietzsche  Freud  Holmes  human_nature  motivation  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter, Michael Weisberg - Why Evolutionary Biology is (so Far) Irrelevant to Law (2007, last revised 2014) :: SSRN
U of Texas Law, Law & Econ Research Paper No. 81 -- U of Texas Law, Public Law Research Paper No. 89 -- We argue that as the actual science stands today, evolutionary biology offers nothing to help with questions about legal regulation of behavior. -- Evolutionary accounts are etiological accounts of how a trait evolved. [A]n account of causal etiology could be relevant to law if (1) the account of causal etiology is scientifically well-confirmed, and (2) there is an explanation of how the well-confirmed etiology bears on questions of development (the Environmental Gap Objection). ....the accounts of causal etiology that might be relevant are not remotely well-confirmed by scientific standards. We argue, in particular, that (a) evolutionary psychology is not entitled to assume selectionist accounts of human behaviors, (b) the assumptions necessary for the selectionist accounts to be true are not warranted by standard criteria for theory choice, and (c) only confusions about levels of explanation of human behavior create the appearance that understanding the biology of behavior is important. We also note that no response to the Environmental Gap Objection has been proffered. In the concluding section of the article, we turn directly to the work of Prof Owen Jones, a leading proponent of the relevance of evolutionary biology to law, and show that he does not come to terms with any of the fundamental problems identified in this article. -- downloaded pdf to Note
paper  SSRN  legal_theory  philosophy_of_science  philosophy_of_law  philosophy_of_social_science  evolution-social  evolutionary_biology  evo_psych  causation-social  causation-evolutionary  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter -The Radicalism of Legal Positivism (2010) :: SSRN - Guild Practitioner, 2010
U of Chicago, Public Law Working Paper No. 303 -- “Legal positivism” is often caricatured by its jurisprudential opponents, as well as by lawyers and legal scholars not immediately interested in jurisprudential inquiry. “Positivist” too often functions now as an “epithet” in legal discourse, equated (wrongly) with “formalism,” the view that judges must apply the law “as written,” regardless of the consequences. Lon Fuller, Ronald Dworkin, and the Critical Legal Studies writers have all contributed in different ways to the sense that "positivism" is either a political conservative or politically sterile position. This essay revisits the actual theory of law developed by positivist philosophers like Bentham, Hart, and Raz, emphasizing why it is, and was, understood by its proponents, to be a radical theory of law, one unfriendly to the status quo and anyone, judge or citizen, who thinks obedience to the law is paramount. To be clear, the leading theorists of legal positivism thought the theory gave the correct account of the nature of law as a social institution; they did not endorse it because of the political conclusions it entailed, and which they supported. Yet these theorists realized that the correct account of the nature of law had radical implications for conventional wisdom about law. We would do well to recapture their wisdom today. -- downloaded pdf to Note
article  SSRN  philosophy_of_law  intellectual_history  intellectual_history-distorted  18thC  19thC  20thC  positivism-legal  conservatism  radicals  Bentham  Hart  Raz  Critical_Legal_Studies  Dworkin  Fuller  natural_rights  moral_philosophy  political_philosophy  institutions  institutional_change  reform-legal  formalism-legal  judiciary  sociology_of_law  social_theory  social_order  downloaded  EF-add 
july 2014 by dunnettreader
Alex Langlinais, Brian Leiter - The Methodology of Legal Philosophy [chapter] (2013) :: SSRN - H. Cappelen, T. Gendler, & J. Hawthorne (eds.), Oxford Handbook of Philosophical Methodology, Forthcoming
U of Chicago, Public Law Working Paper No. 407 -- This is the revised and penultimate version of this paper. The essay surveys issues about philosophical methodology as they arise in general jurisprudence. Certainly in the Anglophone world and increasingly outside it, H.L.A. Hart’s 1961 book The Concept of Law has dominated the discussion. ...methodological debates typically scrutinize either one of two (related) ... claims in Hart’s classic work. The first is that his theory is both general and descriptive (Hart 1994: 239). The second is that his theory is an exercise in both linguistic analysis and descriptive sociology (Hart 1994: vi). We explicate both ideas, arguing, in particular, that (1) Hart aims to give an essentialist analysis of law and legal systems (a point clearest in those who follow him like J. Raz, J. Dickson and [though less of a follower] S. Shapiro), and (2) we can make sense of the linking of linguistic (and conceptual) analysis and descriptive sociology if we understand "law" as a constructed bit of "social reality" in something like John Searle's sense. The ensuing methodological debates in legal philosophy can then be understood as arguing against either linguistic or conceptual analysis (naturalists like B. Leiter), or against the idea of a purely descriptive jurisprudence (in different ways, J. Finnis, S. Perry, M. Murphy, L. Murphy, R. Dworkin). -- Keywords: H.L.A. Hart, methodology, descriptive jurisprudence, conceptual analysis, John Searle, legal philosophy -- downloaded pdf to Note
article  books  SSRN  philosophy_of_law  methodology  legal_theory  intellectual_history  social_theory  social_sciences-post-WWII  analytical_philosophy  sociology_of_law  concepts  constructivism  Hart  Raz  Dworkin  Finnis  Searle  natural_law  naturalism  positivism-legal  legal_realism  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Naturalized Jurisprudence and American Legal Realism Revisited (2011 book symposium) :: SSRN - Law and Philosophy, 2011
U of Chicago, Public Law Working Paper No. 352 -- This is my reply to critics in a symposium issue of the journal Law & Philosophy (2011) devoted to my 2007 book NATURALIZING JURISPRUDENCE: AMERICAN LEGAL REALISM AND NATURALISM IN LEGAL PHILOSOPHY. The critics to whom I respond are: Julie Dickson (Oxford University), Michael Steven Green (College of William & Mary), and Mark Greenberg (University of California, Los Angeles). -- Keywords: legal realism, naturalism, jurisprudence, methodology -- downloaded pdf to Note
article  SSRN  philosophy_of_law  legal_system  legal_theory  legal_realism  positivism-legal  naturalism  methodology  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Legal Realisms, Old and New :: SSRN (2012 Seegers Lecture in Jurisprudence) - Forthcoming in Valparaiso Law Review (2013)
“Legal Realism” now has sufficient cache that scholars from many different fields and countries compete to claim the mantle of the "Realist program": from political scientists who study judicial behavior, to the "law and society" scholars associated with the Wisconsin New Legal Realism project, to philosophers interested in a naturalized jurisprudence. But what does it mean to be a “legal realist”? What unites the two most famous “old” Legal Realisms — the American and the Scandinavian — with the “new legal realism” invoked, variously, by sociologists, anthropologists, and political scientists, among others? -- I argue that (1) American and Scandinavian Realism have almost nothing in common — indeed, that H.L.A. Hart misunderstood the latter as he did the former, and that the Scandinavians are closer to Hart and even Kelsen than they are to the Americans; (2) all Realists share skepticism about the causal efficacy of legal doctrine in explaining judicial decisions ("the Skeptical Doctrine") (though the Scandinavian skepticism on this score is not at all specific to the legal domain, encompassing all explanation in terms of norms); (3) American Realism almost entirely eschewed social-scientific methods in its defense of the Skeptical Doctrine, contrary to the impression given by much recent work by "new" legal realists; (4) the myth that the American Realists were seriously interested in social science derives mainly from two unrepresentative examples, Underhill Moore's behaviorism and Llewellyn's work with the Cheyenne Indians. -- Keywords: American legal realism, Scandinavian legal realism, Karl Llewellyn, Axel Hagerstrom, Alf Ross, naturalism, H.L.A. Hart, Hans Kelsen, judicial behavior
article  SSRN  philosophy_of_law  social_theory  intellectual_history  intellectual_history-distorted  legal_theory  legal_realism  social_sciences  anthropology  sociology_of_law  normativity  norms  causation  causation-social  positivism-legal  naturalism  social_process  judiciary  behavioralism  Hart  Kelsen  US_legal_system  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence (2005) :: SSRN
Heavily cited -- U of Texas Law, Public Law Research Paper No. 34 -- For three decades now, much of the Anglo-American legal philosophy curriculum has been organized around something called the Hart/Dworkin debate, a debate whose starting point is Ronald Dworkin's 1967 critique of the seminal work of Anglophone jurisprudence in the twentieth-century, H.L.A. Hart's 1961 book, The Concept of Law. This essay reviews the Hart/Dworkin debate and argues that it no longer deserves to play the same organizing role in the jurisprudential curriculum of the twenty-first century that it played at the close of the twentieth: on the particulars of the Hart/Dworkin debate, Hart has emerged the clear victor, so much so that even the heuristic value of the Dworkinian criticisms of Hart are now in doubt. (Dworkin's quite recent polemic against legal positivism in the 2002 Harvard Law Review is also addressed briefly.) The significant philosophical challenges that face legal positivists are now different, often in kind, from the ones Dworkin made famous. These, I shall argue, fall into two broad categories: first, the correct account of the content of the rule of recognition and its relationship to the possibility of law's authority (the Hart/Raz debate); and second, the proper methodology of jurisprudence, a debate which aligns defenders of descriptive conceptual jurisprudence (like Hart and Raz) against two sets of opponents: natural lawyers like Finnis, Perry and Stavropoulos who challenge whether jurisprudence can be descriptive; and philosophical naturalists, like the present author, who question whether conceptual analysis is a fruitful philosophical method in jurisprudence (or elsewhere). -- downloaded pdf to Note
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july 2014 by dunnettreader
Brian Leiter - American Legal Realism (2002) :: SSRN
Heavily cited -- U of Texas Law, Public Law Research Paper No. 42 -- This essay sets out the main elements of the revisionary and philosophical interpretation of the jurisprudence of American Legal Realism that I have developed in a series of articles over the last decade. This reading emphasizes the commitment of all the Realists to a core descriptive claim about adjudication (judges respond primarily to the underlying facts of the cases, rather than to legal rules and reasons); shows how the Realists divide in to two camps over the correct interpretation of this "core" claim (the Idiosncyrasy Wing of Frank, and the Sociological Wing of Llewellyn, Oliphant, Moore, Green, and the vast majority of Realists); demonstrates the connection of the Sociological Wing of Realism to the Realist project of law reform, including the work of the American Law Institute; examines and distinguishes the Realist arguments for the indeterminacy of law from Critical Legal Studies arguments; and shows how the Realists lay the foundation for the program of a "naturalized" jurisprudence, in opposition to the dominant "conceptual" jurisprudence of Anglophone legal philosophy. The revisionary reading also debunks certain popular myths about Legal Realism, like the following: the Realists believed "what the judge ate for breakfast determines the decision"; a critique of the public/private distinction was a central part of Realist jurisprudence; and the Realists were committed to an incoherent form of rule-skepticism. -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  legal_realism  legal_system  legal_theory  legal_culture  sociology_of_law  reform-legal  naturalism  concepts  analytical_philosophy  Anglo-American  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Marx, Law, Ideology, Legal Positivism (2014) :: SSRN
This essay -- for the UVA conference on "Jurisprudence and History" -- offers an account of Marx’s theory of history and his claim that law (and morality) are "ideological," and then asks what theory of law is adequate to explain the way the Marxist theory understands law in both its ideological and non-ideological senses. In Marx's theory we need to be able to say what law is in three contexts: (1) there are the laws that constitute the relations of production, i.e., the scheme of property rights in the existing forces of production; (2) there are the laws (and associated legal beliefs, e.g., "you are entitled to equal protection of the law") that are superstructural and ideological in the pejorative sense; and (3) there are the laws that are non-ideological and superstructural because they characterize the legal relations of a non-class-based, i.e., a communist, society. I explain these different senses of law in Marx's theory and then argue that legal positivism, unlike other views about the nature of law, gives us a sensible explanation of law for purposes of the Marxist theory of historical change. That fact, in turn, gives us another data point in favor of positivism as the only serious explanation of the concept of law. -- Keywords: Iegal positivism, Marx, Hart, Dworkin Finnis, ideology -- downloaded pdf to Note
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july 2014 by dunnettreader
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