The boundaries of law and the purpose of legal philosophy

Many of the current debates in jurisprudence focus on articulating the boundaries of law. In this essay I challenge this approach on two separate grounds. I first argue that if such debates are to be about law, their purported subject, they ought to pay closer attention to the practice. When such attention is taken it turns out that most of the debates on the boundaries of law are probably indeterminate. I show this in particular with regard to the debate between inclusive and exclusive positivists: I present several ways of understanding what this debate is about and argue that none of them is defensible. My second argument focuses more on the purpose of jurisprudential inquiry. I argue there that even if some jurisprudential debates have determinate answers, it does not follow that they deserve our attention, because not all true facts are worth knowing. After discussing and rejecting the claim that jurisprudence could be justified as knowledge for its own sake, I propose one possible justification for engaging in legal philosophy and outline its implications for the kind of issues that should be pursued. Assistant Professor, University of Warwick School of Law. The Essay was presented in the Oxford Jurisprudence Discussion Group. I thank participants there for their comments.     

The Political Origins of English Private Law

The article seeks to explain the emergence of the view that English law contains a fundamental divide between public and private law. I propose to explain the divide, not as a conceptual distinction, grounded in the internal rationality of law, but as a response to the potential problem of political legitimacy arising from the fact that in the domain of private law courts are constantly engaged in making substantive law. That by itself shows that the divide between public and private law is politically motivated, but I further argue that the prevailing view of law among proponents of the divide revives Dicey's conception of the common law within the narrower domain of private law. Since Dicey's views are widely believed to be motivated by his political views, if I am right, this lends support to the conclusion that the views of defenders of the divide are grounded in similar political positions.     

In Defence of Quasi‐Contract

Restitution scholars are almost unanimous in rejecting the term quasi‐contract. This essay challenges this view. It begins by demonstrating that many debates among restitution scholars are in fact debates about the boundaries of consent‐based liability. This serves as an introduction to the main thesis advanced, which is that the idea of quasi‐contract, which is supposed to cover cases in which the parties would have made a contract if conditions allowed them to do so, helps to explain the doctrine better than the conclusory language of unjust enrichment. The essay concludes by situating the argument within the growing literature on the normative foundations of restitution. It argues that quasi‐contractual liability should be understood not as part of unjust enrichment, but as a different basis of liability that can help us see what liability for unjust enrichment might be: liability grounded in notions of fairness.     

Farewell to the Exclusive-Inclusive Debate

In recent years there has an ongoing debate between two versionsof legal positivism. According to one, called exclusive positivism,whenever the law refers to morality, the law necessarily directsits subjects to an external, non-legal, standard, because thereis a conceptual impossibility in incorporating moral standardsinto the law. According to the rival inclusive positivist position,such incorporation is possible, and therefore moral standardscan be (although they need not be) part of the law. In thisarticle I argue that both views are mistaken since they bothassume that whenever words like ‘equality’, ‘justice’etc. appear in the law they refer to moral standards. Rather,I argue, these words refer to legal standards, which are differentfrom the moral standards. As a result the question of the possibilityof incorporation can be avoided, and the debate between exclusiveand inclusive positivists put to rest.     

Law as a Social Construction and Conceptual Legal Theory

Law and Philosophy - A currently popular view among legal positivists is that law is a social construction. Many of the same legal philosophers also argue that before one can study law empirically,...     

Criminalization,Legitimacy, and Welfare

A standard view about criminal law distinguishes between two kinds of offenses, “mala in se” and “mala prohibita.” This view also corresponds to a distinction between two bases for criminalization: certain acts should be criminalized because they are moral wrongs; other acts may be criminalized for the sake of promoting overall welfare. This paper aims to show two things: first, that allowing for criminalization for the sake of promoting welfare renders the category of wrongfulness crimes largely redundant. Second, and more importantly, accepting welfare as a legitimate ground for criminalization implies a certain view about legitimate state action, which makes criminalization for wrongfulness more difficult to justify. If I am right, the view that keeps the two categories of criminalization as largely separate is untenable. I conclude with some remarks about the advantages of welfare (and not wrongfulness) as the basis for criminalization.