Law Commons^™

How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman

All Faculty Scholarship

The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing …

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

David Ingram

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

Philosophy: Faculty Publications and Other Works

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

The Limits Of Legal Realism, Anthony D'Amato

Faculty Working Papers

This article will address some criticisms of legal realism, primarily those of H.L.A. Hart, that have been unanswered in the literature and have appeared to discredit the realist approach to law. The article will also articulate what I believe to be more difficult problems with legal realism.

Constitutional Theory And The Rule Of Recognition: Toward A Fourth Theory Of Law, Mitchell N. Berman

All Faculty Scholarship

This essay, a contribution to a forthcoming edited volume on Hart's rule of recognition and the U.S. Constitution, advances one argument and pitches one proposal. The argument is that Hart's theory of law does not succeed. On Hart's account, legal propositions are what they are - that is, they have the particular content and status that they do - by virtue of their satisfying necessary and sufficient conditions that are themselves established by a special sort of convergent practice among officials. American constitutional theorists are often troubled by this account because it seems to imply that in the "hard cases" …

Why Theories Of Law Have Little Or Nothing To Do With Judicial Restraint, Philip E. Soper

Articles

The question I explore here, stated in its broadest form, is this: What is the connection between theory and practice between academic claims about how judges should decide cases and the actual behavior of judges as revealed in the opinions they write? More particularly, do theories about the nature of law have any implications for the question whether a judge should adopt an "activist" or a "restrained" approach to deciding cases? As you might infer from my title, I defend here what I call "the skeptical thesis" in answer to both the general and particular questions. Judges pay little or …

Making Sense Of Modern Jurisprudence: The Paradox Of Positivism And The Challenge For Natural Law, Philip E. Soper

Articles

Karl Llewellyn once said, referring to Roscoe Pound's work m jurisprudence, that it was difficult to tell on what level the writing proceeded: sometimes it seemed to be little more than bedtime stones for a tired bar; at other tunes it appeared to be on the level of the after-dinner speech or a thought provoking essay, neither of which were quite the "considered and buttressed scholarly discussion" that one expected to find. Llewellyn's complaint serves as a warning, though a somewhat ambiguous one, to those who give lectures on jurisprudence.

On the one hand, I do not plan to present …

The Moral Dilemma Of Positivism, Anthony D'Amato

Faculty Working Papers

I think there has been an advance in positivist thinking, and that advance consists of the recognition by MacCormick, a positivist, that positivism needs to be justified morally (and not just as an apparent scientific and objective fact about legal systems). But the justification that is required cannot consist in labelling "sovereignty of conscience" as a moral principle, nor in compounding the confusion by claiming that positivism minimally and hence necessarily promotes sovereignty of conscience. We need, from the positivists, a more logical and coherent argument than that. Until one comes along, I continue to believe that positivists inherently have …

What 'Counts' As Law?, Anthony D'Amato

Faculty Working Papers

A reader of jurisprudence might conclude that only philosophers raise the question whether international law may be said to exist or is really law. But in terms of frequency, the question is probably raised more often by governments and states that are not trying to be philosophical. The increasing attention being paid to the need for, and the procedures for, objective validation of rules of international law in a burgeoning literature of international law evidences the seriousness of the problem, the responsibility of scholars for careful scholarship in this area of legal theory, and ultimately the good possibility of generally …