Rules, Principles, Algorithms and the Description of Legal Systems

Abstract .
Although the Hart/Dworkin debate has as much to do with Dworkin's affirmative theory of judicial discretion as with Hart's more comprehensive theory of law, the starting point was of course Dworkin's attempt to demolish the "model of rules," Hart's alleged analysis of legal systems as collections of conclusive reasons for specified legal consequences. The continuing relevance of this attack for the prospects for any theory of law is the subject of the present essay.     

Hart,Legal rules and palm tree justice

In this paper I defend a liberal theory about how legal rules can and ought to be interpreted. The theory emerges from a critical examination of H. L. A. Hart's influential views on the limited but unavoidable indeterminacy of legal rules. I begin with a brief sketch of Hart's early theory (as it is traditionally understood) offering various suggestions as to how it might usefully be modified. Next, several possible objections to my modifications are sketched and criticized. Finally, reasons are provided for supposing that the modified theory may well represent Hart's current position.     

Legal Reasoning and Legal Theory Revisited

This article deals with the relation between a theory of law and a theory of legal reasoning. Starting from a close reading of Chapter VII of H. L. A. Hart's The Concept of Law, it claims that a theory of law like Hart's requires a particular theory of legal reasoning, or at least a theory of legal reasoning with some particular characteristics. It then goes on to say that any theory of legal reasoning that satisfies those requirements is highly implausible, and tries to show that this is the reason why not only Hart, but also writers like Neil MacCormick and Joseph Raz have failed to offer a theory of legal reasoning that is compatible with legal positivism as a theory of law. They have faced a choice between an explanation of legal reasoning that is incompatible with the core of legal positivism or else strangely sceptical, insofar as it severs the link between general rules and particular decisions that purport to apply them.     

Legal Positivism, Law's Normativity, and the Normative Force of Legal Justification

In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly legal conception from the rather narrow viewpoint of the study of law's normativity, it is less attractive than the latter from the broader viewpoint of the study of the nature of law. I then distinguish between a moral and a strictly legal conception of the normative force of legal justification, and argue that legal positivists may without contradiction embrace the moral conception, and that therefore the analysis of the normative force of legal justification need not be a problem for legal positivists. I conclude that, on the whole, we have reason to prefer legal positivism to natural law theory. I begin by introducing the subject of jurisprudence (section 1). I then introduce the natural law/legal positivism debate, suggesting that we ought to understand it as a debate about the proper way to explicate the concept of law (section 2). I proceed to argue that legal decision-making is a matter of applying legal norms to facts, and that syllogistic reasoning plays a prominent role in legal decision-making thus conceived (section 3). Having done that, I discuss law's normativity (section 4), the normative force of legal justification (section 5), and the relation between the former and the latter (section 6). I conclude with a critical comment on Joseph Raz' understanding of the question of law's normativity (appendix).     

Legal Positivism and Deontic Detachment

I consider a puzzle that arises when the logical principle known as “deontic detachment” is applied to the law. It is not possible to accept the principle of deontic detachment in a legal setting while also accepting that the so‐called “social facts thesis” applies to all legal propositions. According to the social facts thesis, the existence and content of law is determined by the attitudes or practices of legal officials. Abandoning deontic detachment is not an appropriate solution to the problem—the puzzle can be recreated with other plausible closure principles. The problem can be solved by restricting the social facts thesis to legal rules, rather than applying it to all legal propositions. Properly construed the social facts thesis does not apply to facts about what legally ought to be the case.     

Was Inclusive Legal Positivism Founded on a Mistake?

In this paper, I present a new argument against inclusive legal positivism. As I show, any theory which permits morality to be a condition on legality cannot account for a core feature of legal activity, namely, that it is an activity of social planning. If the aim of a legal institution is to guide the conduct of the community through plans, it would be self-defeating if the existence of these plans could only be determined through deliberation on the merits. I also argue that, insofar as inclusive legal positivism was developed as a response to Ronald Dworkin's critique of H. L. A. Hart's theory of law, it was founded on a mistake. For once we appreciate the role that planning plays in legal regulation, we will see that Dworkin's objection is based on a flawed conception of legal obligations and rights and hence does not present an objection that inclusive legal positivists were required to answer.     

功能主义"法律史解释"及其限度——评瞿同祖《中国法律与中国社会》

《中国法律与中国社会》的功能主义倾向集中体现于其整体文化观,即历时性向度的"古代法整体论"和共时性向度的"法律的社会决定论"。经由历时性问题共时性化而达致的整体文化观不仅因看不到社会/法律变迁、"小传统"与"大传统"的互动博弈而有失之专断的简单化缺陷,而且其法律史解释也因其梅因式单线进化论和"尾随西方"的现代化模式之前设的存在而具有较大的主观性。法律的功能分析与整体文化观、单线进化论前设之间也存有张力。     

Continuity and Change in Legal Positivism

Institutional theory of law (ITL) reflects both continuity and change of Kelsen's legal positivism. The main alteration results from the way ITL extends Hart's linguistic turn towards ordinary language philosophy (OLP). Hart holds – like Kelsen – that law cannot be reduced to brute fact nor morality, but because of its attempt to reconstruct social practices his theory is more inclusive. By introducing the notion of law as an extra-linguistic institution ITL takes a next step in legal positivism and accounts for the relationship between action and validity within the legal system. There are, however, some problems yet unresolved by ITL. One of them is its theory of meaning. An other is the way it accounts for change and development. Answers may be based on the pragmatic philosophy of Charles Sanders Peirce, who emphasises the intrinsic relation between the meaning of speech acts and the process of habit formation.     

Positive Law and Systemic Legitimacy: A Comment on Hart and Habermas*

Abstract
The author revisits H. L. A. Hart's theory of positive law and argues for a major qualification to the thesis of the separation of law and morality based on a concept of systemic legitimacy derived from the social theory of Jurgen Habermas. He argues that standards for assessing the degree of systemic legitimacy in modern legal systems can develop through reflective exercise of "critical legality," a concept coined to parallel Hart's "critical morality," and an expanded understanding of the "external" and "internal" perspectives on legal systems. Following Habermas, he argues that modern positive law must retain systemic legitimacy. After suggesting criteria for measuring systemic legitimacy, the author concludes that the concept provides a useful approach to contemporary problems of "lawless" regimes and "law's imperialism."     

Was Austin Right After All? On the Role of Sanctions in a Theory of Law

In modern jurisprudence it is taken as axiomatic that John Austin's sanction-based account of law and legal obligation was demolished in H.L.A. Hart's The Concept of Law , but Hart's victory and the deficiencies of the Austinian account may not be so clear. Not only does the alleged linguistic distinction between being obliged and having an obligation fail to provide as much support for the idea of a sanction-independent legal obligation as is commonly thought, but the soundness of Hart's claims, as well as the claims of many legal theorists who have followed him, depend on a contested view of the nature of legal theory. If the task of a theory of law, as Joseph Raz and others have influentially argued, is to identify the essential features of the concept of law, then the theoretical possibility, if not the empirical reality, of a sanction-free legal system is what is most important. But if the task of a theory of law is to provide philosophical and theoretical illumination of law as it exists and as it is experienced, then a theory of law that fails to give a central place to law's coercive reality may for that reason be deficient as a theory of law. The question of the soundness of the Austinian account, therefore, may be a function of the answer to the question of what a theory of law is designed to accomplish.     

The Dynamics of Legal Positivism. Some Remarks on Shiner's Norm and Nature

In a recently published book, Roger Shiner shows that understanding the fundamental discrepancies between different legal theories is important for a better understanding of law itself. He argues that one of the most important tasks of legal philosophers is to take into account the dynamics or conceptual movements generated by positivism and antipositivism. Our paper intends to show that Shiner's analysis can be developed and modified when other relevant elements are introduced into the universe of discourse. We emphasize the importance of a positivistic conception of legal science. According to Shiner, an adequate theory of law must reproduce the way in which legal norms work in the lives of the participants who accept the law. After analyzing the distinction between norms and norm propositions and the relationship between legal science and the external point of view, we show that legal positivism is not committed to reproducing the internal point of view to law.     

现代法理学中“法律权威”问题的困境——以哈特对奥斯丁的批判为线索

哈特和奥斯丁之间的学术公案恰当地重启了法律权威的论题。在哈特的批判性审视之下，法律权威的问题陷入了困境：要倡导法律主治，就需要树立法律权威，但到目前为止，现代法理学的各派理论却都无法有效地证明法律是如何拥有权威的。产生这一困境的根本原因在于人们对个人自律的道德价值的信奉。     

H. L. A. Hart on Legal Obligation*

Abstract. The author discusses Hart's concept of legal obligation, especially his contention that there is an obligation to obey the law which is peculiarly legal, i.e., non-moral. This view is held to be mistaken. What is denied is that legal rules, merely by their being issued, offer a justification for the use of coercion to ensure compliance with them. Although moral and other social (customary) rules are considered self-justifying, that is not the case of legal rules. Any analogy between these two types of rules in justifying their implementation by force is deemed wrong.**     

The Philosophy of Scandinavian Legal Realism

Abstract.  The jurisprudential movement known as Scandinavian Legal Realism was founded by the Swedish philosopher Axel Hägerström and the Danish philosopher and jurist Alf Ross in order to destroy the distorting influence of metaphysics upon legal thinking and to provide the secure philosophical foundation for scientific knowledge of the law. I shall present Hägerström's philosophical theory and argue that he is committed to the metaphysical view that the world in time and space consists of causal regularities between things and events devoid of any values that is related to his epistemological view that what there is can be known by experience. Hägerström's philosophy advances a naturalistic approach that conceives the positive law as a system of rules in terms of behavioural regularities among human beings and legal knowledge as an empirical inquiry into the causal relations between legal rules and human behaviour. This approach is followed by his pupils, the Swedish lawyers A. V. Lundstedt and Karl Olivecrona, whereas Ross appeals to logical positivism. The naturalistic approach should be taken seriously since it leaves no room for the normativity of the law and for legal knowledge in terms of reasons for belief and action.     

论法律概念的特征

法律概念是法律的基本构成要素,没有法律概念,我们就不能正确地理解法律问题。与哲学、政治学等学科相比,我国的法学对法律概念的研究却显得相对薄弱。然而,在司法实践中,要正确运用法律推理,必须首先研究法律概念。本文从研究概念入手,阐明了法律概念的涵义以及法律概念与一般概念的不同点。从立法、司法的角度,分析了法律概念的特征。     

The Fluid Jurisprudence of Israel's Emergency Powers: Legal Patchwork as a Governing Norm

Israel's long‐standing state of emergency has had considerable bearing on the state's governance. Less known, but equally important, is the fact that Israel's legal system features several overlapping and incoherent emergency legal mechanisms that exist side by side. This article demonstrates that Israel's ever‐shifting body of emergency law has been used to suit its governing authorities’ political ends. A chief goal has been to create flexibility in the application of law in order to systematically discriminate against Palestinians while maintaining a degree of legitimacy as a government by law. With these various emergency legal mechanisms available, Israel's governing officials can extend the authorities of discrete emergency regulations by mixing and matching laws or by moving freely from one legal mechanism to the next to serve desired ends. This article argues further that what may have started as a pragmatic solution quickly became programmatic and concerted. Thus, contrary to the conception that Israel's convoluted emergency jurisprudence is the accidental outcome of trying times, Israel's complex emergency jurisprudence is in fact a governing tool. This reality compels us to consider new analytical frameworks in which a state of emergency is an enduring condition. To this end, this article draws on the work of colonial law scholars. By analyzing jurisdictional complexity in contexts where emergency is dominant, these studies explain the political motivation for maintaining structured ambiguity.     

Legal Judgment as Self-Mastery

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.     

论法律形式与法律渊源的界分

法律形式与法律渊源的关系比较复杂,但是我国学者一般将之作为等同的概念使用。这种观点导致了某些学术上的混乱,也导致法律形式和法律渊源各自的作用没能够充分发挥。正确界定法律渊源和法律形式,是实现二者区分的逻辑起点。法律形式是法律文本的表现方式;法律渊源是裁判规范的集合体,法官从中发现裁决案件所需要的裁判依据和裁判理由。由此可以得出二者之区分:从实践来看,法律渊源之法是指司法之法,法律形式之法是指立法之法;从内容来看,法律渊源之法是具有一定开放性的规则体系,而法律形式则是具有一定封闭性的规则体系;从路径来看,法律渊源之法是在司法适用过程发现和寻找的,法律形式之法是立法中形成的。司法适用之法完全局限于制定法之时,二者会出现种属统一,但是其概念内涵依然有着重大区别。