Emad H. Atiq (Cornell University – Sage School of Philosophy; Cornell University – Law School) has posted Justice as Law’s Constitutive Virtue: A Functional Reassessment (Forthcoming lead article, Oxford Studies in Philosophy of Law, Vol. 7) on SSRN. Here is the abstract:
Some kinds can succeed or fail on their own terms. A clock that loses minutes is defective as a clock; a university that abandons teaching and research becomes deficient as a university. Pebbles and numbers, by contrast, are not evaluable in this way. Philosophers often place law in the first category, and some go further still: they claim that unjust law is defective as law. Yet the leading arguments for this claim—appeals to central cases (Finnis 2011), law’s characteristic activities (Murphy 2006), the logic of legal demands (Alexy 2021), or law’s justificatory role (Dworkin 1986)—fail when tested against canonical cases of kind-relative virtue. Their failure reveals a deeper lacuna in legal philosophy: the absence of a general theory of goodness-fixing kinds. I argue that if justice is law’s constitutive virtue, it must be explained using the same functional schemas that ground constitutive standards elsewhere: agentive functions stably intended across contexts; etiological functions that explain emergence and persistence; and systemic functions that locate law’s role within larger social orders. On this reconstruction, whether unjust law is defective “as law” is not a matter of conceptual stipulation or a priori intuition, but an empirical question—one that unsettles familiar readings of Dworkin and Hart, and standard narratives of legal history.
Important and deep. Highly recommended. Download it while it’s hot!