Philosophy of Law
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Brian Z. Tamanaha (St. John’s University) has posted The Bogus Tale About the Legal Formalists on SSRN. Here is the abstract: It is widely accepted that legal formalist views dominated at the turn of the last century: judges, legal academics, and lawyers purportedly believed that law was comprehensive, gapless, and logically ordered, and believed that…
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Samer Al Nasir (Carlos III University of Madrid) has posted Toward a New Dogma of the Legal Neopositivism (HESPERIA, CULTURAS DEL MEDITERRANEO, José Luis Pardo Foundation) on SSRN. Here is the abstract: The paper it’s a statement toward a new model of legal positivism, separated from the concrete-kelsenian positivism, and approached from the hartian spectation,…
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Ralf Poscher (Ruhr-Universität Bochum, Germany) has posted The Hand of Midas When Concepts Turn Legal or Deflating the Hart-Dworkin Debate on SSRN. Here is the abstract: The law shares many of its concepts with other areas of discourse. That most of these concepts have a specific legal meaning when used inside the law is a…
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Brian Leiter (University of Texas at Austin – School of Law & Department of Philosophy) has posted In Praise of Realism (and Against ‘Nonsense’ Jurisprudence) on SSRN. Here is the abstract: Ronald Dworkin describes an approach to how courts should decide cases that he associates with Judge Richard Posner as a Chicago School of anti-theoretical,…
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Scott Shapiro has posted Totally Exclusive Positivism on SSRN. Here is the abstract: Recent controversies among inclusive and exclusive legal positivists have focused on the question whether the social facts that determine legal content can incorporate moral norms. Inclusive legal positivists, notably Jules Coleman, have argued that such incorporation is consistent with the conceptual structure…
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It is 9:00 a.m. PDST, and I am blogging from the American Philosophical Association’s Pacific Division Meeting in Pasadena California. It’s especially nice to be here–I grew up in Monterey Park a few miles to the south and lived for many years just a few blocks from the conference hotel. If only the session could…
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The papers from the NYU conference are now available on the web. (Thanks to Brian Leiter for the reminder & link.) Here are titles, links, and tastes: LES GREEN (University of Oxford), “Positivism and the Inseparability of Law and Morals” Lon Fuller . . . thought Hart was recommending that “law must be strictly severed…
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John Oberdiek’s Specifying Rights Out of Necessity is now available from the Oxford Journal of Legal Studies online. (You will need an account, but many colleges and universities have one). Here is the abstract: It is the purpose of this article to make the positive case for an under-appreciated conception of rights: specified rights. In…
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Curtis Bridgeman (Florida State University – College of Law) has posted Contracts as Plans on SSRN. Here is the abstract: This paper offers an original theory of contract law that draws from recent work in the philosophy of action and legal theory. Human beings are essentially planning creatures. Making plans and following through with them…
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Maksymilian T. Del Mar (University of Edinburgh) has posted Jurisprudential Inquiries between Tradition and Discourse on SSRN. Here is the abstract: This paper argues that jurisprudential inquiries can be profitably analysed as oriented towards either the explanatory paradigm of discourse or the explanatory paradigm of tradition. The first part of the paper offers a map…