Law Commons^™

Choice Theory: A Restatement, Michael A. Heller, Hanoch Dagan

Faculty Scholarship

This chapter restates choice theory, which advances a liberal approach to contract law. First, we refine the concept of autonomy for contract. Then we address range, limit, and floor, three principles that together justify contract law in a liberal society. The first concerns the state’s obligation to be proactive in facilitating the availability of a multiplicity of contract types. The second refers to the respect contract law owes to the autonomy of a party’s future self, that is, to the ability to re-write the story of one’s life. The final principle concerns relational justice, the baseline for any legitimate use …

Reasons: Explanatory And Normative, Joseph Raz

Faculty Scholarship

‘A reason’ has two meanings: explanatory reasons are facts that contribute to an explanation (of anything explained); normative reasons are facts that favour and guide responses, in one’s emotions, beliefs, actions, etc., to how things are. The two kinds of reasons are connected by their connection to the capacity of Reason, or rationality, and by the normative/explanatory nexus, i.e. by the fact that normative reasons can explain the response that they favour. Normative reasons are — potentially — explanatory reasons, but the explanations they provide are of a special kind that presupposes their normative character. The chapter builds on …

Philosophical Legal Ethics: Ethics, Morals, And Jurisprudence, Alice Woolley, W. Bradley Wendel, William H. Simon, Stephen Pepper, Daniel Markovitz, Katherine R. Kruse, Tim Dare

Faculty Scholarship

The authors and moderator David Luban participated in a plenary session of the International Legal Ethics Conference IV, held at Stanford. Each author answered and discussed questions arising from short papers they had written about the principal concern of legal ethics was the morality of lawyers, the morality of clients, or the morality of laws?

Those papers, which are to be published in Legal Ethics, are compiled here, along with the question and background information with which the panelists were provided.

Human Rights Without Foundations, Joseph Raz

Faculty Scholarship

This is a good time for human rights. Not that they are respected more than in the past. The flagrant resort to kidnapping, arbitrary arrests, and torture by the United States of America (USA), and the unprecedented restriction of individual freedom in the USA, and in Great Britain (GB), cast doubt about that. It is a good time for human rights in that claims about such rights are used more widely in the conduct of world affairs than before. There are declarations of and treaties about human rights, international courts and tribunals with jurisdiction over various human right violations. They …

Reasons: Practical And Adaptive, Joseph Raz

Faculty Scholarship

I will consider some of the differences between epistemic reasons and reasons for action, and use these differences to illuminate a major division between types of normative reasons, which I will call ‘adaptive’ and ‘practical’ reasons. A few clarifications of some aspects of the concept of epistemic reasons will lead to a distinction between standard and non-standard reasons (section 1). Some differences between epistemic and practical reasons will be described and explained in section 2, paving the way to generalising the contrast and explaining the difference between adaptive and practical reasons (section 3). sections 4 and 5 further explain and …

On The Guise Of The Good, Joseph Raz

Faculty Scholarship

I will provisionally take the Guise of the Good thesis to consist of three propositions: (1) Intentional actions are actions performed for reasons, as those are seen by the agents. (2) Specifying the intention which makes an action intentional identifies central features of the reason(s) for which the action is performed. (3) Reasons for action are such reasons by being facts which establish that the action has some value. From these it is said to follow that (4) Intentional actions are actions taken in, and because of, a belief that there is some good in them. I will examine reasons …

Reason, Reasons And Normativity, Joseph Raz

Faculty Scholarship

All normative phenomena are normative in as much as, and because, they provide reasons or are partly constituted by reasons. This makes the concept of a reason key to an understanding of normativity. Believing that, I will here present some thoughts about the connection between reasons and Reason and between Reason and normativity.

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 totally discredited …

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 of …

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, starting …

The Problem Of Authority: Revisiting The Service Conception, Joseph Raz

Faculty Scholarship

The problem I have in mind is the problem of the possible justification of subjecting one's will to that of another, and of the normative standing of demands to do so. The account of authority that I offered, many years ago, under the title of the service conception of authority, addressed this issue, and assumed that all other problems regarding authority are subsumed under it. Many found the account implausible. It is thin, relying on very few ideas. It may well appear to be too thin, and to depart too far from many of the ideas that have gained currency …

Incorporation By Law, Joseph Raz

Faculty Scholarship

My purpose here is to examine the question of how the law can be incorporated within morality and how the existence of the law can impinge on our moral rights and duties, a question (or questions) which is a central aspect of the broad question of the relation between law and morality. My conclusions cast doubts on the incorporation thesis, that is, the view that moral principles can become part of the law of the land by incorporation.

The Role Of Well-Being, Joseph Raz

Faculty Scholarship

"Well-being" signifies the good life, the life which is good for the person whose life it is. I have argued that well-being consists in a wholehearted and successful pursuit of valuable relationships and goals. This view, a little modified, is defended , but the main aim of the article is to consider the role of well-being in practical thought. In particular I will examine a suggestion which says that when we care about people, and when we ought to care about people, what we do, or ought to, care about is their well-being. The suggestion is indifferent to who cares …

Law And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

Two hundred years ago, in Marbury v. Madison, Chief Justice Marshall delivered an opinion that has come to dominate modern discussions of constitutional law. Faced with a conflict between an act of Congress and the U.S. Constitution, he explained what today is known as "judicial review." Marshall described judicial review in terms of a particular type of "superior law" and a particular type of "judicial duty." Rather than speak generally about the hierarchy within law, he focused on "written constitutions."

He declared that the U.S. Constitution is "a superior, paramount law" and that if "the constitution is superior to any …

About Morality And The Nature Of Law, Joseph Raz

Faculty Scholarship

In support of my longstanding claim that the traditional divide between natural law and legal positivist theories of law, the present paper explores a variety of necessary connections between law and morality which are consistent with theories of law traditionally identified as positivist.

Reasoning With Rules, Joseph Raz

Faculty Scholarship

What is special about legal reasoning? In what way is it distinctive? How does it differ from reasoning in medicine, or engineering, physics, or everyday life? The answers range from the very ambitious to the modest. The ambitious claim that there is a special and distinctive legal logic, or legal ways of reasoning, modes of reasoning which set the law apart from all other disciplines. Opposing them are the modest, who claim that there is nothing special to legal reasoning, that reason is the same in all domains. According to them, only the contents of the law differentiate it from …