Schauer's Anti‐Essentialism

In his new book, The Force of Law, Frederick Schauer maintains that law has no necessary properties (a position he calls legal anti‐essentialism), and that therefore jurisprudents should not assume that an inquiry into the nature of law has to be a search for such properties. I argue, however, that Schauer's attempt to show that legal anti‐essentialism is a defensible position fails, because his one main argument (the cognitive science argument) is either irrelevant or else incomplete, depending on how one understands it, and because the other main argument (the family resemblance argument) is false.     

Legal Rights and the Limits of Conceptual Analysis: A Case Study

Legal philosophers divide over whether it is possible to analyze legal concepts without engaging in normative argument. The influential analysis of legal rights advanced by Jules Coleman and Jody Kraus some years ago serves as a useful case study to consider this issue because even some legal philosophers who are generally skeptical of the neutrality claims of conceptual analysts have concluded that Coleman and Kraus's analysis manages to maintain such neutrality. But that analysis does depend in subtle but important ways on normative claims. Their argument assumes not only a positivist concept of law, but also that it counts in favor of an analysis of legal rights that it increases the number of options available to legal decisionmakers. Thus, whether Coleman and Kraus's analysis is right in the end depends on whether those normative assumptions are justified. If even their analysis, which makes the thinnest of conceptual claims, depends on normative premises, that fact serves as strong evidence of the difficulty of analyzing legal concepts while remaining agnostic on moral and political questions.     

The Evolutionary Game‐Theoretic Foundations of Law

Interdisciplinary work in the law often starts and stops with the social sciences. To produce a complete understanding of how law, evolutionary game‐theoretic insights must, however, supplement these more standard social scientific methods. To illustrate, this article critically examines The Force of Law by Frederick Schauer and The Expressive Powers of Law by Richard McAdams. Combining the methods of analytic jurisprudence and social psychology, Schauer clarifies the need for a philosophically respectable and empirically well‐grounded account of the ubiquity of legal sanctions. Drawing primarily on economic and social psychological paradigms, McAdams highlights law's potential to alter human behavior through expressions that coordinate. Still, these contributions generate further puzzles about how law works, which can be addressed using evolutionary game‐theoretic resources. Drawing on these resources, this article argues that legal sanctions are ubiquitous to law not only because they can motivate legal compliance, as Schauer suggests, but also because they provide the general evolutionary stability conditions for intrinsic legal motivation. In reaction to McAdams, this article argues that law's expressive powers can function to coordinate human behavior only because humans are naturally and culturally evolved to share a prior background agreement in forms of life. Evolutionary game‐theoretic resources can thus be used to develop a unified framework from within which to understand some of the complex interrelationships between legal sanctions, intrinsic legal motivation, and law's coordinating power. Going forward, interdisciplinary studies of how law works should include greater syntheses of contemporary insights from evolutionary game theory.     

The Regular Practice of Morality in Law

Abstract. This article examines the possibility of moral considerations and arguments serving as validity conditions of law in legal positivist theory. I argue that, despite recent attempts, this possibility has yet to be established. My argument turns on a defense of Joseph Raz's Sources Thesis, yet I do not adopt his famous “argument from authority.” Rather, I offer a renewed defense of the distinction between creation and application of law and argue that moral considerations and arguments, whether recognized in law or not, remain arguments about the modification of law.     

Robert Alexy and the Dual Nature of Law

Robert Alexy's claim that law of necessity has a dual nature raises many interesting philosophical questions. In this article, I consider some of these questions, such as what the meaning of the correctness thesis is, whether Alexy's discourse theory supports this thesis, and whether the thesis is defensible; whether Alexy's argument from anarchy and civil war supports the claim that law of necessity has a real dimension; and what the implications are of the use of moral arguments, such as the argument from injustice, for the status of Alexy's inquiry.     

David Dyzenhaus and the Holy Grail

Abstract
In his book Hard Cases in Wicked Legal Systems David Dyzenhaus aims to provide a cogent refutation of legal positivism, and thus to settle a very old dispute in jurisprudence. His claim is that the consequences for practice and for morality if judges adopt positivist ideas in a wicked legal system are unacceptable. He discusses the South African legal system as a case in point. I argue that this claim is not secured. Dyzenhaus has three arguments for his view. The first is that positivism cannot account for legal principles, and legal principles are the key source of morally acceptable adjudication. I show that his argument does not go through for sophisticated positivist accounts of "principles" such as those of J. Raz and D. N. MacCormick. Dyzenhaus's second argument claims to find a pragmatic contradiction in positivism, between the belief in judicial discretion and the belief in a commitment to legislative sources as binding fact. I argue that there is no such commitment in a form that supports Dyzenhaus's theory. His final argument is that wicked legal systems are contrary to the very idea of law and legality. I argue that a strong doctrine of deference to legislative authority cannot be bad in itself: It can only be bad relative to a certain content to legislation. Thus Dyzenhaus's claim begs the question against positivism.     

Rules of Power and the Power of Rules

Abstract
The paper describes at length and then discusses critically Frederick Schauer's analysis of rules in his recent book Playing By the RuZes . For most of the book Schauer discusses rules in general, and only at the end talks about legal rules in particular. The chief message of Schauer's analysis is that rules permit, and even constitute, a particular kind of decision-making, one that quite deliberately insulates the decision-taker from considerations of what would be in the circumstances the best justified decision to take. Rules are thus for Schauer devices for the allocation of decision-making power: The effect of A delegating to B the power to decide by a set of rules devised by A is that A retains much control over B 's decision-making. Schauer canvasses the claims of what he calls "presumptive positivism" to be a theory of law which embodies such a view of legal rules. In his criticism, the author compares Schauer's view with Joseph Raz's notion of legal rules as exclusionary reasons. The author then compares "presumptive positivism" with some other recent versions of positivism and the idea of rules as devices for the allocation of power with theories of law in the Critical Legal Studies movement.     

On the Concept and the Nature of Law

Abstract. The central argument of this article turns on the dual‐nature thesis. This thesis sets out the claim that law necessarily comprises both a real or factual dimension and an ideal or critical dimension. The dual‐nature thesis is incompatible with both exclusive legal positivism and inclusive legal positivism. It is also incompatible with variants of non‐positivism according to which legal validity is lost in all cases of moral defect or demerit (exclusive legal non‐positivism) or, alternatively, is affected in no way at all by moral defects or demerits (super‐inclusive legal non‐positivism). The dual nature of law is expressed, on the one hand, by the Radbruch formula, which says that extreme injustice is not law, and, on the other, by the correctness argument, which says that law's claim to correctness necessarily includes a claim to moral correctness. Thus, what the law is depends not only on social facts, but also on what the law ought to be.     

Positivism,Legal Validity,and the Separation of Law and Morals

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it is necessarily involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project.     

On the Thesis of a Necessary Connection between Law and Morality: Bulygin's Critique

In this article the author adduces a non‐positivist argument for a necessary connection between law and morality; the argument is based on the claim to correctness, and it is directed to an attack stemming from Eugenio Bulygin. The heart of the controversy is the claim to correctness. The author first attempts to show that there are good reasons for maintaining that law necessarily raises a claim to correctness. He argues, second, for the thesis that this claim has moral implications. Finally, he attempts to refute Bulygin's objection that the claim‐based argument for non‐positivism boils down to contradiction and triviality.     

Putting interpretation in its place

What can a philosophical analysis of the concept of interpretation contribute to legal theory? In his recent book,Interpretation and Legal Theory, Andrei Marmor proposes a complex and ambitious analysis as groundwork for his positivist assault on “interpretive” theories of law and of language. I argue (i) that the crucial element in Marmor's analysis of interpretation is his treatment of Ludwig Wittgenstein's remarks on following rules, and (ii) that a less ambitious analysis of interpretation than Marmor's can take better advantage of those insights about rules. I explore some implications of such an analysis for the role of interpretation in legal reasoning.     

Schauer on Coercion,Acceptance, and Schizophrenia

This article provides a comment on The Force of Law (Schauer 2015), which is Schauer's new and illuminating contribution to the place of law in our societies and in our lives. It constitutes a strong defence of the importance of coercion in law. First, I consider cases where the law is not able to motivate human behaviour adequately, in order to show that legal coercion is not always justified. Second, I examine the Rawlsian distinction between the ideal and the nonideal theory and its application to the theory of law. Third, I tentatively argue that coercion has no place in ideal theory, but a core place in nonideal theory. In this way, it may be plausible to reconstruct the motivation to accept the law, at least when the law is normatively justified.     

A socio-legal quest: from jurisprudence to sociology of law and back again

How should socio-legal studies view jurisprudence, the legal theory of jurists? Jurisprudence's task is to promote law as a socially valuable idea taking various forms in different times and places. As a value-oriented and context-focused enterprise, it should draw on the social sciences to make its inquiries relevant in a changing socio-legal world. Correspondingly, socio-legal research needs theory to link its empirical inquiries to an overall sense of what can be hoped for from law as a social phenomenon. In different ways, jurisprudence and socio-legal inquiry should help to theorize the nature of legal practice and legal experience. They are necessarily distinct enterprises with contrasting orientations, but they can aid each other in important ways.     

Inequality,Just Price and Bad Bargains: Contracting Attitudes after the South Sea Crash, 1720

ABSTRACT

In 1720, following the crash in South Sea stock, some doubted the legal and ethical enforceability of contracts concluded on the secondary market for the purchase of future South Sea stock. This article examines the argument of David Dalrymple who drew upon civil law, natural law and the notion of a just price to advocate for the annulment of these so called ‘time bargains’. It demonstrates why Dalrymple's just price argument held a rhetorical relevance, as an ethical argument, even if the effectiveness of such a plea in both Scottish and English courts, during the early eighteenth century, is doubtful. Additionally, in setting out the context of his pamphlet and the wider debate, this article also draws attention to the emergence of a new ethical rhetoric of commerce and contracting, which argued against Dalrymple, and for the enforcement of these contracts. Lastly, this article contends that a wider conception of what constitutes the legal context of the South Sea crisis is needed, through which a deeper understanding can be gained of what role the law played in resolving the crisis and how political and ethical attitudes shaped the use of law, specifically contract law.     

Insights,Errors and Self‐Misconceptions of the Theory of Principles

The theory of principles is multifaceted. Its initial expression contained an important argument against positivist theories of adjudication. As a legal theory, it fails in its effort to claim a structural difference between rules and principles. It also fails as a methodological theory that reduces adjudication to subsumption or balancing. It misunderstands itself when it is conceived as a doctrinal theory especially of fundamental rights. Its most promising aspect could be its contribution to a more comprehensive theory of legal argumentation.     

Social Justice and Legal Form

Abstract
This essay argues for a conception of law as a normative practice, a conception which departs from traditional, particularly positivist, conceptions. It is argued that Dyzenhaus's book (Dyzenhaus 1991), with its fascinating case study of unjust judicial decisions in South Africa, makes a compelling argument for such a conception. However, the essay takes issue with Dyzenhaus for romanticising the liberal tradition, and inflating the power of law and legal theory. Nonetheless, the essay agrees that positivist accounts tend to downplay the emancipatory promise of law, and ends with some remarks about promise.     

Normological Inferences and the Generation of Legal Norms

Abstract. This paper is an answer to Mazzarese (1993) in which the author argues that Kelsen's normological scepticism is a consequence of his theory of legal dynamics and of his views on the relation between higher and lower norms. The author rejects this tenet and reasserts his opinion that there is an essential break between the classical Pure Theory of Law and Kelsen's late doctrine. Therefore an inquiry is justified whether the theses and concepts of the classical Pure Theory are compatible with normological scepticism in Kelsen (1979). Mazzarese's comments on neo-institutionalist views on legal validity are based on a misinterpretation of this conception.     

Hobbes on Political Authority,Practical Reason and Truth

The role of sovereign authority in Hobbes' political philosophy is to establish peace and stability by serving as a definitive and unambiguous source of law. Although these broad outlines of Hobbes' account of political authority are uncontentious, matters quickly become more complicated once one seeks its normative basis. This much is evident from recent debates on the normative status of the laws of nature and the related issue as to whether Hobbes is better categorised as an incipient legal positivist or as a heterodox natural law thinker. In this paper I argue that although the positivist and natural law commitments in Hobbes' theory of political authority can be partially reconciled, such a reconciliation points to the need for more substantive theories of practical reason and truth than are to be found in Hobbes' official statements on these topics. Section II examines the positivist and natural law dimensions in Hobbes' thought and suggests that the role of sovereign authority in providing the definitive interpretation of the laws of nature allows a partial reconciliation to be effected. In section III, I consider the tension between this reconciliation and Hobbes' instrumentalism about practical reason and equivocal separation of authority and truth.