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Full-Text Articles in Law
The 'Authority' Of Law: Joseph Raz Reconsidered, Andrew Stumpff Morrison
The 'Authority' Of Law: Joseph Raz Reconsidered, Andrew Stumpff Morrison
Law & Economics Working Papers
The article presents a critical reassessment of the legal philosophical writings of Joseph Raz. The critique develops from the author’s previous argument that law is – contra recent near-consensus – best understood as “the command of the sovereign, backed by force.” Given that this is the distinctly defining feature of law, Raz’s extended preoccupation with “reasons for obeying law” is misplaced and even nonsensical.
The End Of Jurisprudence, Scott Hershovitz
The End Of Jurisprudence, Scott Hershovitz
Articles
For more than forty years, jurisprudence has been dominated by the HartDworkin debate. The debate starts from the premise that our legal practices generate rights and obligations that are distinctively legal, and the question at issue is how the content of these rights and obligations is determined. Positivists say that their content is determined ultimately or exclusively by social facts. Anti-positivists say that moral facts must play a part in determining their content. In this Essay, I argue that the debate rests on a mistake. Our legal practices do not generate rights and obligations that are distinctively legal. At best, …
The Model Of Plans And The Prospects For Positivism, Scott Hershovitz
The Model Of Plans And The Prospects For Positivism, Scott Hershovitz
Reviews
In Legality, Scott Shapiro builds his case for legal positivism on a simple premise: laws are plans. Recognition of that fact leads to legal positivism, Shapiro says, because the content of a plan is fixed by social facts. In this essay, I argue that Shapiro’s case for legal positivism fails. Moreover, I argue that we can learn important lessons about the prospects for positivism by attending to the ways in the argument fails. As I show, the flaws in Shapiro’s argument reveal structural problems with a family of prominent positivist views, including the one defended by Joseph Raz.
The Unruliness Of Rules, Peter A. Alces
The Unruliness Of Rules, Peter A. Alces
Michigan Law Review
Analytical jurisprudence depends on a posited relation between rules and morality. Before we may answer persistent and important questions of legal theory - indeed, before we can even know what those questions are - we must understand not just the operation of rules but their operation in relation to morality. Once that relationship is formulated, we may then come to terms with the likes of inductive reasoning in Law, the role of precedent, and the fit, such as it is, between Natural Law and Positivism as well as even the coincidence (or lack thereof) between inclusive and exclusive positivism. That …
Pragmatism Regained, Christopher Kutz
Pragmatism Regained, Christopher Kutz
Michigan Law Review
Jules Coleman's The Practice of Principle serves as a focal point for current, newly intensified debates in legal theory, and provides some of the deepest, most sustained reflections on methodology that legal theory has seen. Coleman is one of the leading legal philosophers in the Anglo-American world, and his writings on tort theory, contract theory, the normative foundations of law and economics, social choice theory, and analytical jurisprudence have been the point of departure for much of the most interesting activity in the field for the last three decades. Indeed, the origin of this book lies in Oxford University's invitation …
Horrible Holmes, Mathias Reimann
Horrible Holmes, Mathias Reimann
Michigan Law Review
Holmes has kept scholars busy for most of a century, and the resulting volume of literature about him is staggering. In that last twenty years along, we have been blessed with four biographies, four symposia, three new collections of his works, two volumes of essays, and various monographs, not to mention a multitude of free-standing law review articles. Since life is short, everyone who adds to the deluge, including Albert Alschuler with his new book, bears a heavy responsibility to make the expenditure of trees, library space, and reading time worthwhile. Does Law Without Values fulfill that responsibility? Despite the …
Apparently Substantial, Oddly Hollow: The Enigmatic Practice Of Justice, Heidi Li Feldman
Apparently Substantial, Oddly Hollow: The Enigmatic Practice Of Justice, Heidi Li Feldman
Michigan Law Review
The Practice of Justice: A Theory of Lawyers' Ethics, by William H. Simon, is one of the most thoughtful and important books in legal theory - not just legal ethics - published in the past ten years. Like David Luban's seminal contribution to legal ethics, Lawyers and Justice: An Ethical Study, published a decade ago, Simon's book is a deliberate rival to accounts of lawyers' professional responsibility that begin with a command to zealous advocacy, end with a prohibition on outright illegal conduct, and offer nothing in between. Authors and commentators have grown increasingly dissatisfied with this as the basic …
Searching For Positivism, Philip Soper
Searching For Positivism, Philip Soper
Michigan Law Review
A Review of W.J. Waluchow, Inclusive Legal Positivism
Misunderstanding Positivism, Anthony J. Sebok
Misunderstanding Positivism, Anthony J. Sebok
Michigan Law Review
It is important that I point out the limited purposes of this article. I cannot, in the context of the argument I make, prove that positivism will not inevitably collapse into a conservative theory of law. Nor can I prove that positivism is not vulnerable to jurisprudential arguments unrelated to the attempt to link positivism with formalism, legal process, and originalism. I recognize that strong arguments have been made that modem positivism's attempts to divorce itself from classical positivism's command theory of law has opened up more problems than it has solved. I have certain views on whether that divorce …
Jurisprudence: A Descriptive And Normative Analysis Of Law, Christopher P. Portman
Jurisprudence: A Descriptive And Normative Analysis Of Law, Christopher P. Portman
Michigan Law Review
A Review of Jurisprudence: A Descriptive and Normative Analysis of Law by Anthony D'Amato
Friedrich: The Philosophy Of Law In Historical Perspective, Edgar Bodenheimer
Friedrich: The Philosophy Of Law In Historical Perspective, Edgar Bodenheimer
Michigan Law Review
A Review of The Philosophy of Law in Historical Perspective. By C. J. Friedrich.