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In this paper, I try to reconcile the vulgar (normative) definition of punishment with the positivistic (purely descriptive) definition that separates the ethics of punishment from its definition—punishment positivism. I will argue that although the vulgar definition has critical issues, this does not mean that we should stop using normative concepts in the definition of punishment. I will attempt this reconciliation by considering one of the prime arguments in favour of punishment positivism—namely, definitional stop—and show why it doesn't work. I will proceed by presenting a functional argument in favour of what I call punishment moralism: the idea that punishment should be considered as a response to perceived wrongdoing. This definition, while using normative concepts, still remains descriptive. In this way, I hope to be able to solve the problem of both views by combining their insights. [ABSTRACT FROM AUTHOR]

How can tort reparation be justified? Stephen Perry's comparative account relies on two ideas: (1) the loss arising from an injurious event should be distributed between the injurer and the victim rather than be borne by society at large; and (2) the distribution of loss between the injurer and the victim depends on a comparison of their "relative degree of fault." Many believe that a strength of the comparative account lies in its ability to explain apportionment in contributory negligence cases. I argue, to the contrary, that such cases pose a serious difficulty for the account. [ABSTRACT FROM AUTHOR]

The debate on alternative punishments appears to be stagnating. The impasse may be overcome if we consider humans from a different philosophical perspective. If we answer differently the question of who we are punishing, we open new possibilities regarding the question of how we punish. In particular, by applying the extended mind thesis we can arrive at interesting outcomes and reopen the debate on alternative punishments. According to this theory, external artifacts—such as smartphones—can be considered part of our minds. In this article, I defend the thesis that restricting access to personal technologies that are a part of one's self should be considered a form of punishment. Thus, a human who is considered from an extended perspective can be punished in a new way. [ABSTRACT FROM AUTHOR]

Various authors have claimed that law has an ideal dimension owed to a claim to correctness. Against this thesis, this article argues that there are several ideal dimensions of law, namely, a moral, a legal, and an ontological one. All of them are independent of a claim to correctness. This claim can be understood in a strong and a weak way. Both versions are wanting because law claims neither that it is morally ideal nor that it is not grossly unjust. Consequently, the ideal dimension of law has to be found in features other than in a claim to correctness. [ABSTRACT FROM AUTHOR]

When we seek a fuller understanding of individual liberty including its relational character, we confront a conundrum. The evident advantages of a single individual possessing liberty cannot be simply transferred to a greater number of beneficiaries. This conundrum is confronted with the resources of Hohfeld's analytical framework, developed specifically to elucidate the practical outworkings of interpersonal relations within the law. Attention is also paid to concerns expressed by von Wright over a representation of liberty (permission) within the resources of standard deontic logic which fails to address its social aspect. The aggregate level of the Hohfeldian scheme is employed to represent a complete picture of liberty, but one that cannot guarantee benefits for a plurality of holders. The conclusion is reached that in order to extend the advantages of individual liberty to all, something other than liberty is required. [ABSTRACT FROM AUTHOR]

When legal theorists ask questions about legal interpretation—such as what it fundamentally is, what it aims at, or how it should work—they often do so in ways closely tethered to existing legal practice. For example: they try to understand how an activity legal actors (purportedly) already engage in should be done better, such as how judges can better learn about the content of the law. In this paper, I discuss a certain kind of "conceptual ethics" approach to thinking about legal interpretation, which is less tethered to existing legal practice (or the existing meaning of core pieces of legal terminology). The approach I explore asks questions about legal interpretation in a way that is tethered to what legal (or "legal‐ish") concepts people should deploy, as part of arguments on behalf of engaging in legal (or "legal‐ish") practices different from our current ones. In exploring this approach, I aim to help us better understand the landscape of philosophical issues about legal interpretation, including parts of it that I think have been underexplored. [ABSTRACT FROM AUTHOR]

This article takes a critical look at the classic couplet of theories on the justification of rights, namely, the choice theory and the interest or benefit theory, where the two are understood to be in conflict. The argument is made that this couplet is best replaced with a new one, namely, a sophisticated rendering of the benefit theory coupled with the autonomy theory, such that any conflict is resolved. The latter two theories take different cases in justifying the attribution of rights: The autonomy theory is concerned with justifying the attribution of rights to adult, rational, and competent subjects, arguing that this attribution requires a sufficiently autonomous claim by such subjects, while the benefit theory seeks to justify the attribution of rights to subjects who lack any of these three properties, meaning that they cannot be considered adult, rational, or competent. [ABSTRACT FROM AUTHOR]

Many legal theorists see legal judgment as a largely professional or technical task. This is not how law sees itself. When looked at from the perspective of the engaged judge, law requires from us that we arrive at a certain internal governance of our thoughts and emotions. Legal scholarship and legal procedure tell us that law creates true reasons that override other, personal, reasons, even those of the utmost importance to us. A philosophical understanding of law requires a distinct argument that explains how such overriding reasons can be associated with the law and how there can be a personal duty to adapt our reasoning when we make authoritative legal judgments in order to change the lives of others. The philosophy of law needs to explain how legal judgment can be a form of self‐mastery. [ABSTRACT FROM AUTHOR]

Ratti has attacked principles theory in two respects. The first is that it is impossible to distinguish between rules and principles. The second is that the main thesis of principles theory, which says that balancing is the specific way of applying principles, is wrong. The result of Ratti's critique is his thesis that principles theory founders on a contradiction or, as Ratti calls it, an antinomy. All of this is based on two arguments: Ratti's disapplication argument and his law of concretization. I attempt to reject this analysis, for it is incomplete. It claims to be an analysis of balancing, but it misses the decisive point of balancing. Informed by this background, I defend the distinction between rules and principles as a distinction of the real and the ideal "ought." [ABSTRACT FROM AUTHOR]

Robert Alexy has argued that the democratic objection to judicial review of legislation can be successfully addressed by assuming that judges exercise a special form of argumentative representation. In this article we argue that Alexy does not explain (as he should) under what circumstances judicial review tends to produce better decisions than parliamentary procedure, nor does he explain how judicial review can have a greater intrinsic value than parliamentary procedure. Subsequently, we argue that the intrinsic value of argumentative representation depends on the promotion of citizen deliberation, whereas its instrumental value depends on judges being committed to the rights of discrete and insular minorities in the face of hostile majorities. [ABSTRACT FROM AUTHOR]

In this paper, we raise two points. First, any rights‐based theory should provide a method by which to guide reasoning in addressing conflicts of rights. The reason, we argue, is that these theories must provide guidance on what should be done. Second, this method must contain two key recommendations: (1) We should try to find a deliberative mechanism through which none of the rights is simply eliminated from the scene; (2) these rights may be balanced against each other to define which right should prevail, but without considering non‐rights‐interests as if they were rights in the process. These recommendations instantiate two crucial principles that underlie our common intuitions on rights, namely, the principle that rights deserve equal respect and the principle that rights should be taken seriously. [ABSTRACT FROM AUTHOR]

The aim of this paper is to point out the salient patterns of agreement and dis‐ agreement between Alf Ross and Hans Kelsen's analyses of valid law and efficacy. I argue that the disagreement has the character of systemic postulation on the part of both interlocutors. My main thesis is that the disagreement is not one of philosophical principle, but one that must be resolved on the basis of pragmatic considerations, i.e., the choice between the two valid‐law schemes pertains neither to necessity nor to truth, but to expediency and values. [ABSTRACT FROM AUTHOR]

Ross's Kritik der sogenannten praktischen Erkenntnis pertains more to moral philosophy than to the philosophy of law, even if its contents are important for the latter, too. Its main objective is to show the theoretical groundlessness of any evaluative judgment. This happens when Ross takes the behaviourist approach of reducing psychology to physiology, which opens up fruitful comparisons with Marxist materialism, and in particular with that of Georges Politzer. Another fundamental question concerns the assumption that theoretical nihilism would lead to practical nihilism, as argued by Theodor Geiger (but denied by Ross). And yet, if Geiger is right, can this have no effect on people's everyday lives? [ABSTRACT FROM AUTHOR]

This article argues that Robert Alexy's influential theory of balancing is affected by a contradiction that makes it unfeasible as an instrument by which to explain some aspects of law and legal reasoning it aims to clarify. In particular, I will show that one of the premises of Alexy's theory of balancing is incompatible with its conclusion. Alexy's theory is based upon a sharp distinction between rules and principles. However, as my analysis will demonstrate, its conclusion implies that it is impossible to distinguish between rules and principles. This is because the so‐called weight formula and the law of colliding principles (i.e., the two main notions used by Alexy to explain balancing) cancel out any difference between these two types of norms. [ABSTRACT FROM AUTHOR]

This paper analyses the intertwinement of legal philosophy and political theory in the British intellectual framework between the late 19th and early 20th centuries, with specific regard to Harold Laski's works. I will try to illustrate the transition from 19th‐century utilitarianism to H. L. A. Hart and Isaiah Berlin as evolving through important debates which include Laski's contribution. I will argue that a discussion of "juridical" obligation, i.e., the conditions of legal validity, may lie implicitly in these concerns that Laski and other early 20th‐century British authors had about "political" obligation—viz., about the nature of the state and its claim to obedience. By approaching Laski's theories and their genealogy through a legal‐philosophical perspective, I will contend that this debate about political obligation anticipates to a considerable extent some of the most renowned conceptions of obligation in 20th‐century British legal theory. [ABSTRACT FROM AUTHOR]

Law is perceived as a stabilising mechanism in an everchanging world and, as such, is founded on the quest for the one "true" meaning of legal norms as a basis for the rule of law. But I shall suggest that it is futile to seek a fixed meaning of legal norms or the one "true" method for interpreting them. The argument will be built by first considering the "trialectics" between hermeneutics, linguistics, and jurisprudence, and then taking a systematic approach to law itself, to this end drawing inspiration from the work of Ferdinand de Saussure. I shall finally argue for the necessity of a more procedural understanding of the rule of law. [ABSTRACT FROM AUTHOR]

Increasingly firm rejections of the distinction between positive and negative human rights as incoherent have created a gap between theory and practice, as well as tensions within legal doctrinal and philosophical literature. This article argues that the distinction can be preserved by means of a structural account of the interaction of duties within human rights, anchored in case law on the right to freedom of assembly in Article 11, the right to free elections in Article 3 of Protocol 1, and the right to security as enshrined in Articles 2, 3, 5, and 8 of the European Convention on Human Rights. [ABSTRACT FROM AUTHOR]

Much controversy has arisen in recent years about the relation between legal philosophy and cognitive science, with some authors announcing a revolution brought about in law by the advances in the scientific study of cognition. At the same time, pessimistic declarations were made, and the significance of cognitive science for law and legal philosophy was denied. In this paper I argue that representatives of legal philosophy are now facing a "tension problem" which comes as a consequence of the following beliefs: that legal philosophy should be naturalized; that contemporary cognitive science is not a source of knowledge proper, that is, a source of naturalization; and that contemporary cognitive science is the best available source of knowledge about cognitive mechanisms. To illustrate the significance of the problem, a case study is presented that concerns research devoted to abstract concepts and its significance for the issues analyzed by legal philosophers, such as legal concepts and legal cognition. More general remarks about the manner of naturalizing jurisprudence are also presented. [ABSTRACT FROM AUTHOR]

In this article, I argue, inter alia, that Kelsen's mature view—as expressed in, and around the time of, the second edition of Reine Rechtslehre—was that of a metaethical relativist, and that the commitment to metaethical relativism was the reason why Kelsen defended democracy as well as tolerance in the shape of a constitutionally guaranteed freedom of thought. I also consider the possibility that in his post‐1960 phase Kelsen abandoned metaethical relativism for moral fictionalism, but argue that, on the whole, a relativist interpretation of Kelsen's late legal philosophy is to be preferred to a fictionalist interpretation. [ABSTRACT FROM AUTHOR]

Though first proposed more than two decades ago, virtue jurisprudence—broadly, the attempt to apply the insights and perspectives of virtue ethics to law and legal theory—has failed to gain much traction in the legal academy. This is partly due, we suggest, to the dominance of traditionalist neo‐Aristotelian approaches to virtue jurisprudence—most notably in the work of Lawrence Solum, the most prominent theoretical architect and defender of virtue jurisprudence. In this paper, we sketch in broad strokes an alternative form of virtue jurisprudence—a pluralistic virtue‐centered approach—and explain how it might work, particularly in the field of constitutional adjudication. Such an approach, we argue, has major advantages over prevailing neo‐Aristotelian models, and may well have wider appeal. [ABSTRACT FROM AUTHOR]

I will focus on three chapters of Professor Gerald Postema's book Utility, Publicity, and Law: Essays on Bentham's Moral and Legal Philosophy (2019). In these chapters, Postema offered new and compelling interpretations of Bentham's work, such as his notion that Bentham was a theorist of the rule of law. However, it is difficult to assume that the majority would exercise moral sanctions and control legislators when the interests of the minority are violated by some legislation. Relating to this, I will argue that Bentham was a precursor to the modern theorists who tried to design some architecture for democracy. [ABSTRACT FROM AUTHOR]

One of the ways by which Gerald Postema's Bentham and the Common Law Tradition revolutionized the study of Bentham's jurisprudence was by challenging the idea, made popular by Hart (both in his jurisprudential work and his interpretation of Bentham), that the study of law in general is normatively neutral. Against this view, Postema argued that one must understand Bentham's views on law and jurisprudence in relation to his utilitarianism. At the time of publishing the book, Bentham went very much against the grain, but this view has since gained considerable support. In my paper I seek to refine it. As I see it, Bentham did not think of utilitarianism as a moral theory. Rather, he is best understood as advancing utilitarianism as a public philosophy—an end for the legislator, and only indirectly applicable for individuals in their everyday lives. This makes Bentham's utilitarianism tied to his legal philosophy in an even deeper sense than Postema suggested. Law is not there to imitate and help enforce an already existing utilitarian morality that tells people (independently of the law) what they should do. Instead, we should think of law as a mechanism (or a technology) for generating normative guidelines (where those do not otherwise exist). The effect of this is to reverse the familiar way of understanding the relationship between law and morality. [ABSTRACT FROM AUTHOR]

The purpose of this article is to discuss whether a person can be discriminated against by means of an action intended to benefit him or her. The discussion is triggered by a recent court decision according to which women may be entitled to compensation for a policy that made them better off in some respect because of its assumed effect on the perpetuation of harmful stereotypes about women. I reject this view, arguing that such effects are neither necessary nor sufficient for an act to be discriminatory. If people stand to directly benefit from some act, they cannot claim discrimination on the basis of such benefit. [ABSTRACT FROM AUTHOR]

Many philosophers and legal scholars believe that the principle of retribution can be employed as a basis for respecting the offender as a person and for imposing relatively soft sentences. This belief is inspired, at least to a certain extent, by the penal philosophy of Kant and Hegel. My aim in this article is to question this widely held belief, with my contention being that retributivists locate the basis of these normative considerations in the wrong place. It is not the application of the principle of retribution that makes systems of criminal law fair and restrained, but rather the other way around: Only by restricting the application of the principle of retribution in various ways can we arrive at a system of penal law that is reasonable and just. These restrictions themselves are not retributive in nature, but are intended to keep the principle of retribution in check. To substantiate these claims, I discuss the views of an older generation of philosophers and scientists, specifically those of Sidgwick, Durkheim, Malinowski, and Piaget, and hold that these provide a fruitful basis for a better understanding of the principle of retribution. In the second part of the article, I investigate how this alternative understanding relates to the principles of proportionality and mens rea, while also making some clarifying remarks about the issue of moral luck. [ABSTRACT FROM AUTHOR]

H. L. A. Hart's "practice theory" of rules is widely thought to face two problems: (1) It fails to account for the normativity of law and (2) it is susceptible to a decisive counterexample dating back to Warnock (1971). In this paper, I offer solutions to both problems. In response to (2), I appeal to an old, but underappreciated, distinction made by Rawls (1955) and argue that the counterexample is no counterexample at all. In response to (1), I apply a newly popular distinction regarding the nature of law's normativity and argue that Hart's practice theory has no problem accounting for the normativity of law. [ABSTRACT FROM AUTHOR]

In this paper, I sketch out and assess two readings of Bentham's theory of meaning, one reductive (Section 2), the other quasi‐pragmatist (Section 3)—both implicating Bentham's ontological and epistemological views. I focus on the way these readings would understand Bentham's analyses of claims in moral and political discourse that rely on putatively normative notions such as obligations and rights, good and bad, and what ought to be the case. I conclude the paper by suggesting tentatively that the independent merits of both readings could signal an irreconcilable tension at the heart of Bentham's thought (Section 4). [ABSTRACT FROM AUTHOR]

Ronald Dworkin is one of the most frequently cited legal philosophers. His work, notably his attack on H. L. A. Hart's positivist theory of law, has received considerable attention, earning him praise as well as trenchant criticism. Instead of discussing the analytical validity of Dworkin's claims, though, we propose an alternative reading of his jurisprudential writings that emphasises their rhetorical nature. After delineating the rhetorical context of his work, we provide several illustrations of his use of rhetorical strategies and, with the help of sentiment‐analysis techniques, emotional language. While resorting to classical rhetorical tactics, Dworkin's rhetoric, we argue, appealed to the emotional power of rights talk at a time when the notion of rights enjoyed greater resonance with his audience. [ABSTRACT FROM AUTHOR]

Coherentists fail to distinguish between the individual revision of a conviction and the intersubjective revision of a rule. This paper fills this gap. A conviction is a norm that, according to an individual, ought to be ascribed to a provision. By contrast, a rule is a judicially ascribed norm that controls a case and is protected by the formal principles of competence, certainty, and equality. A revision of a rule is the invalidation or modification such a judicially ascribed norm, provided that the judge meets the burden of argumentation of formal principles. Thus, judges can revise their convictions without changing the law. [ABSTRACT FROM AUTHOR]

Our aim is to provide an account of constitutive rules in terms of (1) the acceptance of regulative norms, and (2) a cognitive process we call "symbolization" (in an altogether different sense from what J. R. Searle means by this word). We claim, first, that institutional facts à la Searle boil down to facts concerning the collective acceptance of regulative norms in a given community. This, however, does not exhaust what institutional facts are. There is a residue, symbolization. Symbolization, as we understand it, involves a transfer of cognitive models from one domain to another. We introduce this notion by exploring different sorts of games, taking our cue from games of pretend play. In the context of this exploration, we introduce the idea of the significance—a matter of degree—of symbolization for a given institutional concept. In particular, we claim, symbolization may play, vis‐à‐vis a given institutional concept, a properly constitutive or a merely auxiliary role. We further argue that, in most legal concepts as conceived in our legal culture, symbolization plays a merely auxiliary role. A possible exception is the concept of political representation, at least on some understandings of it. [ABSTRACT FROM AUTHOR]

This essay criticizes Joseph Raz's service conception of authority on the basis of its knowability condition. The condition states that for agents to be justified in following authoritative directives, they must be able to know (i.e., form reliable beliefs) that the authority issuing the directives is in fact legitimate. Three grounds for concern are identified. The first is that the satisfaction of the normal justification thesis (NJT), which states that the legitimacy of authorities hinges on whether their directives enable subjects to better conform to reason, only provides agents with reasons to believe that it is justified to act as if an authority were legitimate (i.e., on the assumption that it is). Based on the belief/acceptance distinction, the NJT allows for a gap between what is actually the case and what agents are willing to go along with in order to improve the likelihood of conforming to right reason. The independence condition (IC), which states that for those matters where the NJT obtains it must be better for a subject to improve such conformity than to decide for herself, must be satisfied in conjunction with the NJT, but suffers from its own particular problems. Thus, the second problem identified is that of incommensurable values, which appears when agents are not able to decide between the value of improving right reason—NJT—and the value of deciding for themselves—IC. Finally, the third problem is that of vagueness about right reason, where agents attempting to determine whether an authority meets the two conditions are not able to settle whether reason is improved. Together, these three problem areas of knowability serve to challenge Raz's position. [ABSTRACT FROM AUTHOR]

Talk about social or distributive justice, at least among legal and political philosophers, tends to focus heavily on institutions. This way of thinking about justice owes a great deal to John Rawls. Rawls's theory of justice was famously criticised by Robert Nozick, who in turn attracted an influential critique from G. A. Cohen. The story of these critiques is well known, but this article tells it in an unfamiliar way. The common theme in Nozick's and Cohen's arguments, I contend, is that there is a way of thinking about social justice that focuses not primarily on institutions, but rather on interpersonal relationships. I call this idea small justice. Justice, on this view, is identified with whatever institutions would arise through a process of social evolution from ethical interpersonal dealings repeated consistently over time. [ABSTRACT FROM AUTHOR]