Search

This Essay examines debates surrounding Qu Tongzu's 'Confucianization of law' theory. Qu's theory claims that Chinese law underwent a process of 'Confucianization' starting in the Han dynasty (202 BC–220 AD) and ending and culminating in the Tang dynasty (618–907), where the Confucian concept of li and other Confucian moral teachings were introduced and incorporated into the written law. I argue that Qu's theory should be properly characterised as a theory of descriptive jurisprudence and also a form of the mirror thesis. In light of this characterisation, this Essay then lays out the possible counterarguments that could be raised against Qu's theory and then situates existing scholarship in the debate in these categories. I then test Qu's theory using a case study about kinship concealment in traditional Chinese law The Essay then concludes by urging that the debate should include more jurisprudential approaches. [ABSTRACT FROM AUTHOR]

Is the field of general jurisprudence catching up – or is it simply getting distracted? Whereas legal philosophy has always featured claims about the content of the folk concept of law, it is only in the last few years that it has begun to self-consciously test those claims. Kenneth Himma's recent review of this effort in Jurisprudence is a milestone: it reveals X-Jur as having progressed to the point of attracting broader philosophical attention, and it challenges X-Jur's practitioners to persuade those not already convinced of the potential of alternatives to the analytic method. I take Himma's critique as an opportunity to sketch some preliminaries for a theory of experimental jurisprudence, considering, in turn, the nature of jurisprudential truth, the role of expertise, and how empirical data might best be interpreted to help adjudicate claims about the content of the folk concept. I conclude with a brief discussion of the field's future. [ABSTRACT FROM AUTHOR]

Scott Hershovitz's Law is a Moral Practice develops a bold, novel, and comprehensive account of law: the moral practice picture. Its central thesis is that legal relations (rights, duties, powers, etc.) are moral. They are real, full-fledged normative relations, connected to genuine reasons for action, and endowed with robust normativity. Nothing less than ordinary moral relations. The account is compounded with a deflationary view of theories in general jurisprudence and of the debates about them. In this vein, Hershovitz recommends that we move away from theorising about law (understood as a set of legal norms), and focus on the nature of legal relations instead. In this paper, I pursue two interrelated objectives. First, I address Hershovitz's main arguments for the view that legal relations are moral. Second, I take the issue with the asymmetry between the deflationary and inflationary stances he advocates for legal norms and relations, respectively, arguing that this different treatment is unwarranted, because the deflationary stance is, and because this very combination of attitudes is unstable. Properly understood, questions about the nature and determination of legal norms and relations can't but be seen as complementary aspects of a unified legal metaphysics. [ABSTRACT FROM AUTHOR]

In Law as a Moral Practice, Scott Hershovitz defends the pluralist view that there are many sets of legal norms which we can validly employ for different purposes, none of which qualifies as uniquely legal. He claims, further, that there is no set of moral rights and duties that is distinctly legal either, because the domain of morality is unified. I argue, against Hershovitz, that the existence of different sets of norms within legal practice does not mean that no set is basic, or fundamental. There is arguably one set (the actual moral rights and duties that law re-arranges) which is fundamental, and from which all the other sets are derivative. I argue, moreover, that we have strong deontological reasons to doubt that the domain of morality is unified. If political morality comprises distinct domains, not collapsible to a single moral concern, then the possibility of a distinctively legal domain of morality remains open. [ABSTRACT FROM AUTHOR]

In this paper, we consider the 'eliminativist' character of Hershovitz's non-positivist theory. Focusing on chapter 5 of Law Is A Moral Practice, we ask whether Hershovitz's theory takes full advantage of the explanatory advantages of viewing non-positivism in explicitly eliminativist terms. [ABSTRACT FROM AUTHOR]

Here I distinguish two things jurisprudence might take itself to explain. A theory of law can be either concept-first or practice-first. Concept-first theories investigate the concept we implicitly deploy to label some things as law and not others. Practice-first theories investigate directly, and uncover interesting features of, a particular social practice. That practice could be, for instance, the practice of lawyers and officials which prevails in the United States. I identify Hershovitz's Law Is a Moral Practice with a practice-first approach. Then I elaborate on the distinction and show that a practice-first approach is more defensible than many assume. Finally, I argue a practice-first approach rules out predictive theories of law. [ABSTRACT FROM AUTHOR]

Humility holds a modest but important place among the judicial virtues. But in spite of its growing popularity, it does not yet have a place on the 'central judicial virtues' lists. This paper provides an argument that judicial humility, especially institutional judicial humility, should be considered a necessary judicial virtue at least in common-law jurisdictions. This is because it is a necessary ingredient in precedent-based decisions that are fully justified from the point of view of the law and of political morality. Further, while it is sufficient that individual judges make decisions that a humble judge would have made, the judicial community must in fact be humble in order to produce fully justified common-law decisions – humility is therefore necessary as a community-virtue. [ABSTRACT FROM AUTHOR]

This essay is concerned with Brian Leiter's so-called replacement naturalism, according to which the traditional methodology of conceptual jurisprudence 'should be replaced by reliance on the best social scientific explanations of legal phenomena.' I argue that, although the methodology of experimental jurisprudence is the only plausible replacement for the traditional methodology, it cannot can replace the philosophical methods traditionally used to address conceptual issues and, further, that experimental jurisprudence needs a theoretical foundation that properly locates its role relative to that of conceptual theorising and clarifies its methodology. To this end, I discuss three recent studies that attempt to ascertain the intuitions of competent speakers on three longstanding conceptual disputes about law: two attempt to show our folk concept of law is antipositivist, whereas the other attempts to show our folk concept of law is consistent with the existence of sanction-less legal systems. I argue that all three studies suffer from defects indicating the empirical methodology of experimental jurisprudence can supplement, but cannot replace, the traditional philosophical methodology for addressing conceptual questions. I argue, finally and far more worrisomely, that the last study calls into question its usefulness even in supplementing the traditional philosophical methodology. [ABSTRACT FROM AUTHOR]

In 1985, Swiss legal philosopher Walter Ott visited Herbert Hart in Oxford and made this record of their meeting, which casts novel light on some of Hart's ideas. Ott engaged Hart in a fresh encounter with the legal philosophy of Gustav Radbruch, particularly Hart's and Radbruch's reasons for a minimum content of justice in law. They also discussed the grudge informer, state responsibility under laws of an earlier régime, and questions of the definition and falsifiability of legal theories. Hart surprisingly reported Hans Kelsen as stating, when they had met at Berkeley in 1961, that Hume (and not Kant, and certainly not Wittgenstein) was the greatest philosopher who had ever lived. The translation is accompanied with annotations explaining references, assumptions and contexts. [ABSTRACT FROM AUTHOR]

A general practice of precedent is one that can plausibly apply to any well-functioning legal system. This practice, which can be grounded in the Rule of Law, needs to make it the case that courts always have a legal reason for following relevant precedent – even if the precedent is morally suboptimal, so long as it is not evil. Without this reason, a precedent may be treated as having no legal influence for the later court ('the Null Model'), and this runs counter to the Rule of Law. On top of this reason, courts may have a general legal obligation to follow precedent – stare decisis – but this risks entrenching morally bad decisions in the law. We need, therefore, a type of reason that lies in between the Null Model and stare decisis as a necessary step for any future justification of stare decisis. But how can courts have a legal reason for following morally suboptimal precedent? They can have that reason, I argue, in virtue of a specific judicial duty, positively laid down in a legal source, which aims to advance the Rule of Law in an institutionalised way. In this article, I aim to explain and justify that judicial duty. [ABSTRACT FROM AUTHOR]

How could one person justifiably create reasons for another? This article reissues this familiar 'standing' objection to authority, to demonstrate the structural contribution of recognition to both the idea of authority and its justification. Drawing upon theories of recognition of reasons and persons, it argues that authority must be robustly recognised, not merely identified, by both its subjects and its claimants. Such recognition operates in either roles or relations of authority to make a subject's relevant reasons for action an authority's business. By transmitting reasons between persons on both sides of roles or relations, recognition does the connective work that is necessary to distinguish the idea of authority from other concepts of control, while structuring its justification to require both standing between persons and standards in accordance with reasons. Without the connection between persons and transmission of reasons that comes through robust recognition, one's power over another is both claimed and received not as authority, but as coercion or persuasion; the claim itself entails meddling with (rather than serving) subjects. [ABSTRACT FROM AUTHOR]

Legal theorists tend to focus on disagreement over the law, and yet a theory of law should also explain why lawyers and judges agree on the law as often as they do. To that end, this article first pins down a precise sense in which there can be pervasive agreement on the law. It then argues that such agreement obtains in the United States and likely in many other jurisdictions as well. Finally, it contends that Hartian Positivism offers a straightforward explanation of this phenomenon and, indeed, a better explanation than rival theories, like Ronald Dworkin's Law as Integrity or Scott Shapiro's Planning Theory. Given the ubiquity of legal agreement, Hartian Positivism's explanatory superiority in this regard is a strong, albeit still not dispositive, consideration in its favour. The broader lesson is that theories of law should give greater priority to explaining legal agreement than many theories now do. [ABSTRACT FROM AUTHOR]

Humans have this extraordinary cognitive ability: They imagine inexistent objects, they treat them as if they were real, and by doing so they make them real. They thus give rise to a shared institutional reality that enables them to cooperate in ways that would be impossible otherwise. In this paper, we would like to revisit the account that HLA Hart gives of the practice of collective acceptance that makes a legal system possible. We try to provide an explanation of what Hart calls the 'internal point of view', on the basis of experiments on institutional concepts, drawing on the paradigm known as 'embodied cognition'. Experts and non-experts in law rated the role of several cognitive dimensions for a list of words referring to two kinds of abstract concepts (institutional and theoretical/scientific) and two kinds of concrete ones (food and artifact). Institutional concepts were distinguished into pure-institutional (e.g., 'contract', 'state', 'property') and meta-institutional (e.g., 'norm', 'duty', 'justice'). The results provide an empirical account of how our way of thinking about institutions changes as we acquire expertise in the legal field, thus shading light on the cognitive underpinnings of the 'internal point of view'. [ABSTRACT FROM AUTHOR]

It has become a popular view in jurisprudence that the law exists to guide us. I argue in this article that it is plausible to think that the law does not necessarily exist to guide us. I do this while accepting that the law is necessarily normative. The upshot of the argument is significant. Viewing an attempt to provide guidance as a necessary feature of the law gives rise to a distinctive mode of operating that some think has inherently valuable qualities. We get to say, for example, that the rule of law provides some necessary constraints on how laws should be designed. These valuable aims and constraints become external aims and constraints once guidance is jettisoned from the concept of law. It would not, for example, be true just in virtue of the very nature of law that it should not be secret or oppress people into conformity. [ABSTRACT FROM AUTHOR]

Starting from a teleological understanding of the rule of law, this article argues that private power is a rule of law concern as much as public power. One way of applying the rule of law to private power would be to limit instances of 'lawlessness' and arbitrariness through formal requirements and procedural guarantees. However, we argue that private power is, to a significant extent, constituted by law in the first place – and that its lawful exercise is no less pernicious than its unlawful exercise. Drawing on this constitutive function of law, we propose a normative core of the rule of law grounded on the moral equality of individuals. Attention to individuals' needs, capabilities, and public autonomy points to requirements of distributive justice and democratic participation as part of the power-conferring function of law. Through a discussion of contestations of fossil fuel policy, the article shows the critical and empowering potential of a reconfigured rule of law. [ABSTRACT FROM AUTHOR]

I propose a new formalist account of legal (/proximate) causation – one that holds legal causation to be a matter of amoral, descriptive fact. The account starts with a metaphysical relation, akin to but distinct from common-sense causation, and it argues that legal causation aligns exactly with that relation; it is unified and principled. [ABSTRACT FROM AUTHOR]

According to long-established narratives, legal thinking in Germany, France and the U.S.A. was shaped by formalist legal cultures for the most part of the nineteenth century until the respective legal sciences embraced their social responsibility in the early twentieth century. Recently, legal historians have begun to question these narratives. In separate analyses, they have shown that the critics of 'Legal Formalism' exerted a lasting influence on historical research since the early twentieth century, thereby fostering a deeply charged understanding of nineteenth century jurisprudence. What went largely unnoticed, however, was the transnational dimension of this false narrative. Due to the transnational ties of the critics of 'Legal Formalism', a powerful misrepresentation of nineteenth century Western legal thought emerged that still influences contemporary global legal history. Dismantling the prejudices surrounding the Western jurisprudence of the nineteenth century causes crucial challenges for conceptualising nineteenth century Western legal thought. [ABSTRACT FROM AUTHOR]

This paper defends what I call the 'wellbeing conception of harm', according to which the relevant criterion for determining whether one has suffered harm is whether they have been made worse off in terms of their wellbeing. Firstly, I explain why it is that one might find the wellbeing conception of harm appealing to begin with. Then, I respond to two sets of concerns that have been levied against the wellbeing conception of harm. The first set of concerns relate to the implausible moral/political consequences that would allegedly follow from adopting the wellbeing conception of harm. The second set of concerns challenge the practical significance of adopting the wellbeing conception of harm. I conclude with some remarks on how the wellbeing conception of harm can help to answer, or at least navigate, some controversial issues related to harm. [ABSTRACT FROM AUTHOR]

The question of what makes a 'law' distinct from other kinds of rules and social norms – often called the project of 'conceptual jurisprudence' – gives rise to a classic debate in modern legal theory. The debate has historically centred on the competing Western views of (i) natural law theory and (ii) legal positivism. Meanwhile, the ancient Chinese school of thought known as 'Legalism' (法家) has remained an under-explored branch of Eastern philosophy, despite its many insights into the nature of government and legal systems. This paper argues that Legalism, when interpreted as a system of conceptual jurisprudence, offers a genuine alternative to both of the dominant Western theories. It achieves this by invoking normative reasoning to conceptually distinguish 'laws' from other sorts of rules at the most fundamental level of analysis, but also by doing so without any necessary reference to notions of morality. This unique characteristic of Legalism is introduced in this paper as 'form prudentialism'. [ABSTRACT FROM AUTHOR]

This paper aims to inquire whether an analysis of the concept of law is an exercise of analysis in its modest or immodest form. Our inquiry suggests that the Jacksonian distinction between modest and immodest conceptual analysis, so eagerly applied by many legal scholars, is inapplicable to analyzing a specific part of the concept of law. The crux of our argument lies in the relation between the folk theory of law and the content of the developed concept of law. As an artifact concept, the concept of law must depend on the pre-existing content of the folk conception of law (which we term the 'foundational folk theory'). This part of folk theory determines the collective intentionality necessary to bring an institutional artifact, such as law, into existence. A large part of the argument for this conclusion depends on the acceptance of a realist and functional, post-Searlean theory of artifactual types. [ABSTRACT FROM AUTHOR]

In discussions of standards of proof, a familiar perspective often emerges. According to what we call specificationism, standards of proof are legal rules that specify the quantum of evidence required to determine that a litigant's claim has been proven. In so doing, they allocate the risk of error among litigants (and potential litigants), minimizing the risk of certain types of error. Specificationism is meant as a description of the way the rules actually function. We argue, however, that its claims are either mistaken or at a minimum deeply misleading, especially when it comes to standard of proof rules (SPRs) that contain indeterminate formulas, as is typical. As against specificationism, we argue that SPRs are best understood as rules that confer competence to decide whether a given standard has been met—according to whatever vague or inchoate interpretation (if any) of the rule in question triers of fact implicitly or explicitly employ. We call this the competence-norm approach. [ABSTRACT FROM AUTHOR]

We explore an underappreciated tension at the heart of the debate over legal positivism. On the one hand, many legal philosophers aspire for the debate to tell us what law is, and the nature of law. But on the other hand, the positions in the debate are generally formulated such that they're about something else: what law is necessarily connected to or dependent on. This is a genuine tension, because theses about what law is necessarily connected to or dependent on do not by themselves state or automatically settle what law is or the nature of law. This tension prompts us to propose a new approach to formulating positivism and antipositivism as theses about the real definition of law. Our proposal is simple, but fruitful. We argue that it better insulates and unifies the debate: that is, it prevents orthogonal theses from trivially vindicating or falsifying positivism and antipositivism, and it explains how different threads of the existing debate contribute to a single topic. We close by briefly considering two recent arguments about exclusive positivism (one against, by Scott Hershovitz, and one for, by Scott Shapiro), to illustrate how our discussion bears on contemporary jurisprudential debates. [ABSTRACT FROM AUTHOR]

In his essay 'Ethical Consistency', Bernard Williams famously introduced the concept of a moral remainder, which points to the phenomenon of an in itself defensible decision that may nonetheless result in a moral cost that merits further attention. Inspired by Williams, many scholars have discussed this concept in several professional contexts. However, to date, the concept of a moral remainder has rarely been discussed in the context of legal decision-making. This is striking because this practice largely consists of judges making decisions that, although they may be legally justified, nonetheless negatively affect fundamental interests of the losing party. Hence, this article elaborates on the relevance of Williams's concept of a moral remainder in the theory and practice of legal decision-making in a liberal legal order. Moreover, it argues that the concept of a moral remainder is not only most naturally situated within but also a welcome complement to a virtue-ethical approach to legal decision-making. Finally, this article addresses three concerns that need to be further explored for the accommodation of moral remainders in the theory and practice of legal decision-making to be successful. [ABSTRACT FROM AUTHOR]

Recent interest in the epistemic condition on moral responsibility has raised a new challenge to the view that persons are directly responsible for negligent conduct. According to an influential argument, the epistemic condition on responsibility requires genuine, clear eyed akrasia. All other kinds of wrongdoing, including negligence, constitute ignorant wrongdoing. My aim in this paper is to defend direct responsibility for negligence against this challenge by arguing that negligence does not constitute ignorant wrongdoing. In distinguishing negligence from ignorant wrongdoing, I do not dispute the idea that negligence is involves unawareness. Rather, I argue that there is a difference between failing to bring a relevant fact to mind at the appropriate time and being genuinely ignorant of some relevant fact. Standard cases of negligence involve failing to bring a relevant fact to mind, not genuine ignorance. To support the significance of this distinction, I appeal to the notion of fairness. Fairness supports understanding the epistemic condition on responsibility as requiring not occurrent beliefs but rather reasonable internal access to the relevant beliefs and thereby enables me to defend direct responsibility for negligence. [ABSTRACT FROM AUTHOR]

In international human rights law 'jurisdiction' is the centre of the debate on extraterritorial obligations. The purpose of the present paper is to a) analyse how facts and principles contribute to the explanation of jurisdiction in international human rights law and b) to show how this analysis could help sharpen the debate in this area by making the grounds of disagreement between different accounts explicit. It first describes international practice regarding jurisdiction and shows that it is committed to jurisdiction being a principle that responds to facts on the ground. Second, the paper describes two academic views on jurisdiction in detail. Next, it introduces the framework on facts and principles developed by Jerry Cohen. The idea is that facts only support principles if their relevance is explained by another principle that does not depend on facts. Finally, section 4 combines the framework with our insights into jurisdiction. If jurisdiction is best understood as a principle that responds to facts, this implies that jurisdiction cannot be explained by facts alone. It must instead reflect principles that are themselves not fact-dependent. Adhering to this framework allows for better explanation of jurisdiction and a clearer understanding of the different views on jurisdiction. [ABSTRACT FROM AUTHOR]

In recent years, there has been a growing jurisprudential and philosophical literature on the concept of harm, in particular, what it means to suffer harm. This paper defends the most unpopular account of what it means to suffer harm, the temporal comparative account of harm (TCA). According to TCA, what it means to suffer harm just is for a person to come to be in a state in which they are worse off than they were before. My defence of the TCA proceeds as follows. Firstly, I explain why it is that one might find the TCA appealing to begin with. Then, I respond to three sets of concerns that have been levied against the TCA: (1) concerns about the sufficiency of historical worsenings for harm; (2) concerns about the necessity of historical worsenings for harm; and (3) concerns about the downstream consequences of adopting the TCA in general. If my arguments are successful, we ought to take the TCA much more seriously as a plausible account of what it means to suffer harm. [ABSTRACT FROM AUTHOR]

In this article, I address general jurisprudence's 'dirty little secret' or its apparent tension with normative conceptions of democracy. I argue that this tension is not coincidental, but a historical byproduct of an anti–democratic vision of the public and its epistemic competence amongst key figures in the history of analytical jurisprudence. I turn to John Dewey to trace this history, and elaborate on Dewey's critique of John Austin and Henry Maine, and their shared attempt to discount the normative value and conceptual possibility of popular sovereignty via their insistence on the public's epistemic limitations. I argue that the anti–democratic components of their thought resurface in HLA Hart's jurisprudence and note specifically that Hart's hierarchical model of legal normativity, and his focus on officials as the locus of law's validity and normativity, reproduce features of Austin and Maine's accounts of law rooted in their respective critiques of popular democracy. I conclude by suggesting how Dewey's early critique of Austin and Maine can inform Lon Fuller's insistence on the public's constitutive role in legal legitimation and validity, and may pave the way for a jurisprudence better attuned to the demands of democratic societies. [ABSTRACT FROM AUTHOR]

Jeffrey Goldsworthy recently claimed that parliamentary sovereignty itself expresses or endorses legal positivism. This claim inverts the relationship between law and legal theory, according to which legal theories are used to explain doctrinal, functional, institutional, or constitutional aspects of the law. Beyond claiming that positivism as a legal theory can helpfully explain sovereignty as a legal principle, Goldsworthy now argues that the legal doctrine of sovereignty is itself an articulation of positivism as a legal theory. This assertion, if correct, has significant implications for current understandings of the English constitution, constitutional theory, and legal theory. This essay argues that Goldsworthy's conception of legal positivism cannot accurately describe the English conception of parliamentary sovereignty identified by the English rule of recognition. [ABSTRACT FROM AUTHOR]