Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Series

SSRN

Columbia Law School

2007

Law and Philosophy

Articles 1 - 8 of 8

Full-Text Articles in Law

An Answer To The Question: "What Is Poststructuralism?", Bernard E. Harcourt Jan 2007

An Answer To The Question: "What Is Poststructuralism?", Bernard E. Harcourt

Faculty Scholarship

What is poststructuralism? It has always struck me as odd that so many critical theorists are reluctant to offer an answer to this question. In this essay, I unpack the term and provide a synoptic answer. Poststructuralism, I suggest, is a style of critical reasoning that focuses on the moment of ambiguity in our systems of meaning, as a way to identify the ethical choices that we make when we overcome the ambiguity and move from indeterminacy to certainty of belief in our efforts to understand, interpret, and shape our environment. Post-structuralism concentrates on the moment when we impose meaning ...


Reasons: Practical And Adaptive, Joseph Raz Jan 2007

Reasons: Practical And Adaptive, Joseph Raz

Faculty Scholarship

The paper argues that normative reasons are of two fundamental kinds, practical which are value related, and adaptive, which are not related to any value, but indicate how our beliefs and emotions should adjust to fit how things are in the world. The distinction is applied and defended, in part through an additional distinction between standard and non-standard reasons (for actions, intentions, emotions or belief).


The Practice Of Value – Reply, Joseph Raz Jan 2007

The Practice Of Value – Reply, Joseph Raz

Faculty Scholarship

The privilege of having three sets of extensive and hard-hitting comments on one's work is as welcome as it is rare, and especially so on this occasion as the lectures were, for me, but the first (well, not entirely first) stab at a subject I hope to explore at greater length. The reflections that follow will respond to some of the criticisms, but will not be a point by point reply. I will use the occasion to clarify some obscurities in the lectures, and to contrast my view with some of my critics' own positions. I will proceed thematically ...


Human Rights Without Foundations, Joseph Raz Jan 2007

Human Rights Without Foundations, Joseph Raz

Faculty Scholarship

Using the accounts of Gewirth and Griffin as examples, the article criticises accounts of human rights as those are understood in human rights practices, which regard them as rights all human beings have in virtue of their humanity. Instead it suggests that (with Rawls) human rights set the limits to the sovereignty of the state, but criticises Rawls conflation of sovereignty with legitimate authority. The resulting conception takes human rights, like other rights, to be contingent on social conditions, and in particular on the nature of the international system.


Reasons: Explanatory And Normative, Joseph Raz Jan 2007

Reasons: Explanatory And Normative, Joseph Raz

Faculty Scholarship

A thesis familiar by being as often disputed as defended has it that intentional action is action for a reason. The present paper contributes to the defence of a weaker version of it, namely: Acting with an intention or a purpose is acting (as things appear to one) for a reason.


Can There Be A Theory Of Law?, Joseph Raz Jan 2007

Can There Be A Theory Of Law?, Joseph Raz

Faculty Scholarship

The paper deals with the possibility of a theory of the nature of law as such, a theory which will be necessarily true of all law. It explores the relations between explanations of concepts and of the things they are concepts of, the possibility that the law has essential properties, and the possibility that the law changes its nature over time, and that what is law at a given place and time depends on the culture and concepts of that place and time. It also considers the possibility of understanding the institutions, such as the law, of cultures whose concepts ...


Transparency And Determinacy In Common Law Adjudication: A Philosophical Defense Of Explanatory Economic Analysis, Jody S. Kraus Jan 2007

Transparency And Determinacy In Common Law Adjudication: A Philosophical Defense Of Explanatory Economic Analysis, Jody S. Kraus

Faculty Scholarship

Explanatory economic analysis of the common law has long been subject to deep philosophical skepticism for two reasons. First, common law decisions appear to be cast in the language of deontic morality, not the consequentialist language of efficiency. For this reason, philosophers have claimed that explanatory economic analysis cannot satisfy the transparency criterion, which holds that a legal theory's explanation must provide a plausible account of the relationship between the reasoning it claims judges actually use to decide cases and the express reasoning judges provide in their opinions. Philosophers have doubted that the economic analysis has a plausible account ...


The Argument From Justice, Or How Not To Reply To Legal Positivism, Joseph Raz Jan 2007

The Argument From Justice, Or How Not To Reply To Legal Positivism, Joseph Raz

Faculty Scholarship

Professor Robert Alexy wrote a book whose avowed purpose is to refute the basic tenets of a type of legal theory which 'has long since been obsolete in legal science and practice'. The quotation is from the German Federal Constitutional Court in 1968. The fact that Prof Alexy himself mentions no writings in the legal positivist tradition [in English] later than Hart's The Concept of Law (1961) may suggest that he shares the court's view. The book itself may be evidence to the contrary. After all why flog a dead horse? Why write a book to refute a ...