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The development of an economic approach to legal practice has been the most important jurisprudential development in the last third of the twentieth century. Economic analysis has been offered as both a positive and a normative jurisprudence: as an analysis of important features of existing legal practices and as an ideal against which these practices ought to be evaluated. For some, economic analysis has a narrow explanatory range (in various fields of private law, corporations and taxation, and anti-trust law, for example), while others make broader claims for its ability to illuminate any area of law. Finally, there is a difference between those who focus on one explanation and those who focus on prediction, but all offer positive economic analysis of law based on the concept of economic efficiency as defined in welfare economics and applied to law by Coase, Posner, Calabresi and others.

The extent to which this book sees corrective justice in tort law surely depends on its understanding of it; the same is true of any would-be corrective justice account of tort law: Ernest Weinrib’s, George Fletcher’s, and Richard Epstein’s, as well as Jules Coleman’s. So it is only natural to ask whether any of them is right about the content of corrective justice. And that requires an account of what it means to say that a particular conception of a concept like corrective justice is correct, as well as an account of the adequacy conditions of such a judgment. This chapter tackles some of these meta-ethical concerns. Before doing so, however, the chapter outlines the way in which corrective justice figures in the general approach to political philosophy.

In this essay, I characterize the original intervention that became Inclusive Legal Positivism, defend it against a range of powerful objections, explain its contribution to jurisprudence, and display its limitations and its modest jurisprudential significance. I also show how in its original formulations ILP depends on three notions that are either mistaken or inessential to law: the separability thesis, the rule of recognition, and the idea of criteria of legality. The first is false and is in event inessential to legal positivism. The second is inessential to legal positivism. The third is likely inessential to law. I then characterize the central claim of ILP in a way that relies on none of these: ILP is the claim that necessarily social facts determine the determinants of legal content. I show that ILP so conceived leaves the central debates in law largely untouched. I suggest how the most fundamental of these—the question of the normativity of law—at least can be usefully addressed. The essay closes by suggesting that even though one can distinguish the social from the normative dimensions of law, a theory of the nature of law is necessarily an account of the relationship between the two: It is a theory either of the difference that certain distinctive social facts make in normative space, or it is an account of the distinctive normative difference that law makes, and the social and other facts that are necessary to explain that difference. One can distinguish between but one cannot separate the social from the normative aspects of legality.

In emphasizing the importance of the separability thesis, legal philosophers have inadequately appreciated other philosophically important ways in which law and morality are or might be connected with one another. In this article, I argue that the separability thesis cannot shoulder the philosophical burdens that it has been asked to bear. I then turn to two issues of greater importance to jurisprudence. These are ‘the moral semantics of law’ and ‘the normativity of theory construction in jurisprudence’. The moral semantics claim is that legal content is best understood as moral directives about what is to be done and who is to decide what is to be done. The problem is that legal positivists typically hold that only social facts contribute to the content of law, and it is hard to see how a positivist can hold both the social-facts claim and the moral-semantics claim. I argue that not only are the two claims consistent with one another, but that legal positivists must hold some version of the moral semantics claim if they are to make sense of the claim that legal reasons purport to be content-independent moral reasons for acting. In Section 3 of the article, I take up the question of whether theory construction in jurisprudence is normative or descriptive. This is hard to do in part because so little attention has been paid to correctly formulating the issue. I suggest a demanding test for descriptivism; namely, that an adequate analysis of law can be provided entirely in terms of its formal features. I then defend this claim against three arguments designed to show because governance by law is necessarily desirable or valuable that, we cannot characterize law without making reference to those values or to other material features of law. This constitutes a limited but powerful defence of descriptive jurisprudence.

No one denies that moral principles figure in legal argument and practice. However, the kind of role morality can or must play in law has been a topic of debate not only between positivists and their critics, but also within the positivist camp. The topic was brought into contemporary prominence by Ronald Dworkin, who in The Model of Rules I made the provocative observation that the legality of norms appears to depend sometimes on their substantive (moral) merits, and not just on their pedigree or social source. Ronald Dworkin, The Model of Rules I, in T AKING R IGHTS S ERIOUSLY 14 (1977). The observation was intended by Dworkin as a challenge to the positivism of H.L.A. Hart.

H.L.A. Hart's The Concept of Law is the most important and influential book in the legal positivist tradition. Though its importance is undisputed, there is a good deal less consensus regarding its core commitments, both methodological and substantive. With the exception of an occasional essay, Hart neither further developed nor revised his position beyond the argument of the book. The burden of shaping the prevailing understanding of his views, therefore, has fallen to others: notably, Joseph Raz among positivists, and Ronald Dworkin among positivism's critics. Dworkin, in particular, has framed, then reframed, the conventional understanding, not only of Hart's positivism, but of the terms of the debate between positivists and him. While standing on the sidelines, Hart witnessed the unfolding of not only a lively debate between positivists and Dworkin, but an equally intense one among positivists as to positivism's (and his) core claims. The most important debate has been between so-called inclusive and exclusive positivists: a debate as much about Hart's legacy as about the proper interpretation of legal positivism.

There is a close but largely unexplored connection between law and economics and cognitive psychology. Law and economics applies economic models, modes of analysis, and argument to legal problems. Economic theory can be applied to legal problems for predictive, explanatory, or evaluative purposes. In explaining or assessing human action, economic theory presupposes a largely unarticulated account of rational, intentional action. Philosophers typically analyze intentional action in terms of desires and beliefs. I intend to perform some action because I believe that it will (is likely to) produce an outcome that I desire. This standard “belief-desire” model of action invokes what philosophers of psychology and action theorists aptly refer to as a “folk psychology.”

An extraordinary collection of the finest essays in the core areas of legal philosophy, Readings in Philosophy of Law is a perfect introduction to the breadth of issues covered in the philosophy of law. The essays are all classic papers chosen as much for their clarity of thought and comprehensiveness as for their distinctiveness and importance to the subject matters of legal philosophy. This collection is ideal for the professional as well as the student, as it brings together classic essays that are not otherwise available in one volume. The reader sees each author's thoughts and arguments unfold naturally within the context of other important works. For breadth of contributions and intellectual rigor, Readings in Philosophy of Law is unrivalled.

Two marks of a mature field of inquiry are that its central problems are well-formulated and that its conventional wisdom is sound. Even in the most mature fields, however, the conventional wisdom can sometimes be misleading and the central problems poorly cast. Unfortunately, this is the state of affairs in analytic jurisprudence. Progress can be made only if much of the conventional wisdom is displaced and its central questions are reframed.

I have revised my thinking about corrective justice and its relationship to tort law since the publication in 1992 of Risks and Wrongs. In this epilogue to the most recent edition of Risks and Wrongs I discuss the development of my thinking on the relationship of justice to tort law from the time of my PhD dissertation to the present. This epilogue details the development of my views and how they have been affected by the critical discussion of my work over the years.

Notes on the Contributors 1. Natural Law: The Classical Tradition 2. Natural Law: The Modern Tradition 3. Exclusive Legal Positivism 4. Inclusive Legal Positivism 5. Formalism 6. Adjudication 7. Constitutional and Statutory Interpretation 8. Methodology 9. Legal and Political Philosophy 10. Authority 11. Reasons 12. Rights 13. Law and Obligations 14. Responsibility 15. Philosophy of the Common Law 16. Philosophy of Private Law 17. Philosophy of Tort Law 18. Philosophy of Contract Law 19. Philosophy of Property Law 20. The Philosophy of Criminal Law 21. Philosophy of International Law 22. Law and Language 23. Law and Objectivity 24. Law, Sexual Orientation, and Gender Index

This chapter considers the differences between inclusive and exclusive legal positivism, and distinguishes the chapter’s version of inclusive legal positivism from other accounts. It argues that other inclusive legal positivists have not always grasped, as well as they might, just what it is about the chapter’s thesis that is objectionable from the exclusive legal positivist point of view.

This chapter outlines the chapter’s views on three fundamental substantive questions in jurisprudence regarding the relationship between law and political morality. These are: (1) What are the existence conditions of the criteria of legality in any community? (2) What are the constraints, if any, on the content of those criteria? (3) How do we construct the content of the law of any community? It is argued that conceptual analysis reveals that the existence conditions of the criteria of legality are social, not moral facts; that morality can be, but need not be, a criterion of legality; and that determining the content of law in any community is not an exercise in political morality.

This chapter distinguishes between two different but related issues pertaining to the nature of legal authority. The first concerns the existence conditions of law and thus the possibility conditions of legal authority: how is legal governance possible? The second concerns the nature or kind of governance law purports to provide. It then addresses a third set of questions, one that concerns the conditions, if any, under which the reasons of law purports to create are moral reasons.

This chapter argues that the corrective justice account of tort law illuminates not only tort law, but also the connection between our institutions of corrective and distributive justice. It helps us understand the requirements of fairness in keeping track of the cost of life’s misfortunes more generally.

This chapter responds to the challenge that the two-way relationship between practice and principle is objectionably circular. It presents some very provisional remarks about the relationship of corrective justice to fairness and of fairness to a certain liberal idea of the person as the author of her own life.

This chapter argues that economic analysis is unsatisfactory as conceptual analysis. It defends a certain form of conceptual explanation of tort law, which takes the form of showing how a certain principle — the principle of corrective justice — is embodied in tort law. It also offers a variety of reasons for rejecting the economic analysis. It argues that there is a significant gap between the goals or functions that a social practice may happen to serve, and the goals, functions, and other features that constitute the nature of that practice and tell us what it is.

This chapter defends the conventionality thesis — the claim that legal authority is made possible by a specific set of conventional social practice. It begins by considering the widely misunderstood relationship between the rule of recognition and the social practice of officials. It then argues that contrary to the views of many positivists, the rule of recognition purports to be, and can be, a duty-imposing rule. The chapter concludes by considering the objection that to explain the existence conditions of legal authority in terms of a rule of recognition whose existence condition depends on the behaviour of ‘officials’ is, in the end, to explain law in terms of law.

This chapter addresses the full range of arguments designed to show that the philosophical investigation of law and of the concepts that figure in it must be an activity of moral or political philosophy. The standard formulations of the debate between so-called descriptive and normative jurisprudence are considered misleading and unhelpful. The task of finding a satisfactory formulation of the dispute occupies much of the chapter; a good deal of the rest is devoted to resolving the dispute.

Recently, Scott Shapiro has characterized legal normativity in more general terms, propounding what has come to be called the ‘practical difference thesis’. Shapiro has argued that the practical difference thesis is incompatible with inclusive legal positivism. Thus, he aims to vindicate a conclusion similar to Raz’s, but doing so based on weaker premises. This chapter lays out Shapiro’s argument and explains why various responses to him have failed. It then presents a general argument against both Shapiro and Raz to the effect that even if it is true of law that it must make a practical difference, or that it must be the sort of thing that could be a legitimate authority, it does not follow that the same must be true of each and every law.

This chapter considers what Joseph Raz in particular finds objectionable in legal positivism. Raz believes that law’s claim to legitimate authority could only be true if it is possible to identify legal norms that their content by appealing to social source alone. It is argued that even if Raz is right about law’s conceptually necessary claim to authority, the sources thesis as a legal theory of validity does not follow from it. The chapter grants all of Raz’s claims about legal authority, but denies that they have all of the implications he claims they do.

This chapter discusses the basic elements of the pragmatic method. The method can be characterized in terms of five basic characteristics. These are (1) a commitment to semantic non-atomism; (2) the view that the content of the concepts is to be explicated in terms of their inferential role in the practices in which they figure (practical inferential role semantics); (3) the view that sometimes a philosophical explanation of a practice takes the form of showing how certain principles are embodied in it (explanation by embodiment); (4) the view that the way in which a concept figures in one practice influences its proper application in all others, and that, in this sense, practices are to be viewed holistically; and (5) a commitment to the in-principle revisability of all beliefs, categories, of thought, etc.

This chapter returns to the idea that tort law is a human practice that, broadly speaking, serves certain functions. It argues that if it is to be understood as a causal-functional account, the economic analysis of tort law has not risen beyond being a ‘Just So Sorry’. It does not defend its claim that tort law actually produces optimal deterrence, and more importantly, it proposes no causal mechanism that might explain how this putative fact about the outcome or effect of tort law might explain tort law’s existence, persistence, and shape.

In Fairness versus Welfare, Kaplow and Shavell argue that legal practice and calls for its reform ought to be assessed exclusively by their expected impact on welfare. In particular, they argue that insofar as considerations of fairness are not aspects of an individual's welfare, they have no place to play in the evaluation of the law. In this review essay, I show that this claim is not only inadequately defended in the book, but in fact indefensible. In particular, I argue: (1) whereas the central claim of the book requires a normative argument, all Kaplow and Shavell offer is an empty tautological claim; (2) that in addition they offer an evolutionary argument that is either a non-sequitor or is so strong as to undermine their own thesis; (3) that the arguments they purport to offer work as well to defend fairness as against welfare as they work to defend welfare as against fairness - that in either case they do not work at all; (4) that they offer an inadequate conception of human welfare, one that makes the claim that the law should be evaluated exclusively in the light of its impact on welfare, not merely implausible, but altogether mysterious; and (5) that any more plausible account of welfare that would be adequate to explain why the law ought to be assessed by its impact on welfare is also sufficient to explain why the law ought to be assessed by its impact on fairness.

The modern theory of social choice contains a number of attempts to develop a defence of particular voting or collective decision procedures by appeal to axioms aimed at characterising one or another aspect of procedural fairness. This chapter examines democracy and social choice based on the work of William Riker, who has argued that social choice theory undermines the coherence of populist democratic theory and makes plausible only a very weak form of Madisonian liberalism. In Riker's view, voting is legitimate and desirable only because it enables us to remove officials, thereby constraining their ability arbitrarily to constrain our liberty over time. Riker claims not only that attempts to justify decision rules on procedural or axiomatic grounds fail, but also that proceduralism is itself an inadequate basis for evaluating collective decision-making institutions.

This chapter argues that we can only go so far in understanding accident law if we begin by trying to understand it as having certain goals and policies external to it that can be identified without regard to the practice itself. It discusses tort law as a form of ordering, two forms of instrumentalism, the goals of tort law, and the moral goals of tort law.

This chapter addresses concerns regarding the extent to which the argument for market justifies an economic approach to law. It begins by working through Calabresi's insight that tort law occupies a middle ground between contract and crimes. It then turns the argument around to determine if what was said about contracts and torts suggests a particular account of the criminal law, which in fact, it does.

This book is concerned with the conflict between the goals of justice and economic efficiency in the allocation of risk, especially risk pertaining to safety. The book approaches the subject from the premise that the market is central to liberal political, moral, and legal theory. The first part of the book rejects traditional rational choice liberalism in favor of the view that the market operates as a rational way of fostering stable relationships and institutions within communities of individuals with broadly divergent conceptions of the good. However, markets are needed most where they are most difficult to create and sustain, and one way to understand contract law in liberal legal theory, according to this book, is as an institution designed to reduce uncertainty and thereby make markets possible.

This chapter begins with the account of corrective justice. Several distinctions are important to the account of corrective justice and to the role ascribed to in tort law. The chapter develops four of these distinctions: recovery and liability, grounds and modes of recovery, grounds of the right to recover and the scope of the right, and compensation and justification.

This chapter addresses the question of how incomplete contracts are to be interpreted and by what principle are incomplete contracts to be complete. When transaction costs make an explicit agreement to costly ex ante, the court should apply a default or gap-filling rule that ‘mimics’ the outcome of a hypothetical contract between them. The hypothetical contract is the one the parties would have made had the transaction costs not made their deal so irrational. The chapter presents a theory that invites characterizing the ex ante contract in rational bargaining terms: If the actual contract expresses what the parties take to be a rational agreement between them, then when their agreement is incomplete and needs to be interpreted or filled in by a court it should express what it would have been rational for the parties to agree to. The move from actual to the hypothetical should not change the content of the principle.

This chapter discusses the differences between James Buchanan's ‘constitutional economics’ and traditional efficiency analysis. Because a Pareto improvement makes no one worse off and at least one person better off, one could argue that everyone would consent to making Pareto improvements. Thus, Paretianism can be defended on consensual grounds. In an effort to avoid the pitfalls of the utilitarian defense of Paretianism, lawyer economists have turned to this sort of consent-based defense of efficiency. Buchanan stands this argument on its head. What makes a state of affairs efficient, he claims, is that everyone agrees or consents to it, S is efficient because it is consented to, rather than the other way round. Both lines of argument seek to provide a foundational connection between efficiency and autonomy. In traditional Paretianism, the link is justificatory; in Buchanan's work it is analytic.

This chapter shows that rational contractors seek to create mutually advantageous, enforcable agreements. Doing so requires that they satisfy three independent rationality conditions: joint, concession, and individual rationality. A process of rational bargaining can satisfy these conditions but still fail to reach fruition because of uncertainty deriving from incomplete or imperfect information, or from potential defection. Creating safeguards requires parties to incur three distinct kinds of cost corresponding to the phases in contracting: search costs (pre-phase), decision costs (negotiation phase), and monitoring costs (post-phase). The ways in which the social environment can be altered to reduce uncertainty thereby increasing the possibility of rational cooperation, are discussed.