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LLB Recent developments 2009

Recent developments 2009


2670005 Jurisprudence and legal theory

Current edition of the subject guide


The current edition of the subject guide was published in 2004.

The following developments should be noted


General
A useful general book on many of the topics within the syllabus is Neil
MacCormick’s recent book:
• MacCormick, N. Rhetoric and the Rule of Law: A Theory of
Legal Reasoning. (Oxford: Oxford University Press, 2005)
[ISBN 0198268785].
It is an account of his developed thoughts about law over the period
since he published his first book (Legal Reasoning and Legal Theory
(Oxford: Clarendon Press, 1978) [ISBN 0198763840]) espousing legal
positivism. He is clear and shows a full knowledge of the literature, so
there is a lot of scope for following up his arguments. For example, he
fully discusses arguments for and against judges deciding with
reference to the consequences of their decisions (judicial policy-
making) in Chapter 6 (‘Judging by Consequences’). In Chapter 7
(‘Arguing about Interpretation’) he considers what it means to ‘make
sense of’ our legal practices and so develops a theory very similar, if
not identical, to Dworkin’s theory of interpretation. In Chapter 13
(‘Judging Mistakenly?’) he interestingly considers the question of
whether we can view there to be objectively right answers in the law
that provide a benchmark against which we can say that judges are
fallible. He compares such a view (‘judicial fallibility’) with what he
calls ‘judicial decisionism’, the idea that the judicial decision itself,
whatever it is, is the benchmark of truth in law. The question of
objectivity is also considered in his Chapter 9 (‘Being Reasonable’).
An overview of recent developments in legal philosophy is attempted
in:
• Green, L. ‘General Jurisprudence: A 25th Anniversary Essay’,
Oxford Journal of Legal Studies, Vol.25, No.4, Winter 2005.
An overview of the vexed question of methodology in jurisprudence,
particularly in legal philosophy, is attempted in:
• Dickson, J. ‘Methodology in Jurisprudence: A Critical Survey’ Legal
Theory, Vol.10, No.3, September 2004, 117.
In a clearly written paper:

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• Marmor, A. ‘Legal Positivism: Still Descriptive and Morally Neutral’


(2005) 26 Oxford Journal of Legal Studies 683.
Marmor defends the positivists’ claim that legal theorising can, pace
Dworkin, Waldron, and others, be morally neutral. This is a good paper
for seeing how a staunch positivist works his way through variations on
the claim that legal theorising must be ‘morally evaluative’.
A very stimulating article assessing the methodological dispute
between those who believe that jurisprudence is necessarily evaluative,
like Dworkin, and those who do not, in relation to methodological
disputes in other areas of philosophy, is:
• Leiter, B. ‘Beyond the Hart/Dworkin Debate: The Methodology
Problem in Jurisprudence’ (2003) 48 American Journal of
Jurisprudence 17.
In their different ways, Marmor and Dickson have again addressed the
issue of whether and how the law is conventional, in:
• Dickson, J. ‘Is the Rule of Recognition Really a Conventional Rule’
(2007) 27 Oxford Journal of Legal Studies 373
• Marmor, A. ‘How Law is Like Chess’ (2006) 12 Legal Theory 347.
In:
• Coleman, J. ‘Beyond the Separability Thesis: Moral Semantics and
the Methodology of Jurisprudence’ (2007) 27 Oxford Journal of
Legal Studies 581.
Coleman has recently argued that the positivist/natural law debate
should be moved beyond the issue of the separation of law and morals.
These articles are useful for the consideration of issues in Chapter 11 of
the subject guide, too.

Chapter 4 Classical and modern natural law theory


• Murphy, M. Natural Law in Jurisprudence and Politics (Cambridge:
Cambridge University Press, 2006) [ISBN 9780521108089]
takes an original approach to the central issues of modern natural law
theory, offering an interesting alternative to the work of Finnis. Those
interested in pursuing a deeper understanding of Finnis’s natural law
theory should consult the combined issue 3 and 4 of (2007) Volume 13
of Legal Theory, a special issue dovoted to papers on Finnis’s work and
concluding with a reply by Finnis.

Chapter 5 Introduction to the set book: Hart’s The Concept of Law


• Kramer M., C. Grant, B. Colburn, and A. Hatzistavrou (eds.) The
Legacy of HLA Hart (Oxford: OUP, 2008)
is collection of important essays on Hart’s work. The essays by Finnis,
Waldron, and Ryan are of particular relevance.
For a demanding, but illuminating, discussion of the best way of
understanding Hart’s ‘internal point of view’, see:
Toh, K. ‘Raz on Detachment, Acceptance and Describability’ (2007) 27
Oxford Journal of Legal Studies 203

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Chapter 7 Hart’s defences against natural law and Fuller’s criticism


In a useful discussion:
• Epstein, R. ‘The Not So Minimum Content of Natural Law’, Oxford
Journal of Legal Studies, Vol.25, No.2
Richard Epstein expands the idea of the ‘natural minimum’ to go well
beyond maxims that tend towards human survival.

Chapter 8 Raz on practical reason and the authority of law


In:
• Green, L. ‘Three Themes from Raz’, Oxford Journal of Legal Studies,
Vol.25, No.3, Autumn 2005, 505.
Green usefully discusses Raz on discretion (also useful for Chapter 11),
on authority, and on value pluralism (also useful for Chapter 14).
In:
• Raz, J. ‘Incorporation by Law’, Legal Theory, Vol.10, No.1, 2004
Joseph Raz returns to his account of legal positivism, often called ‘hard
positivism’ because it denies that law can be identified by use of moral
judgment in any case. He defends it against the ‘incorporationists’ who,
while claiming that they are legal positivists, concede that there are
occasions when the law has to be identified by moral judgment when
some authorising legal instrument has ‘incorporated’ moral judgment
into the criteria for identifying law. Raz sums up his thesis in the
following sentence (p.17): ‘If morality applies to people and courts
alike anyway, then we are all, courts included, bound by it even before
its incorporation.’
In the following article Kenneth Himma tackles Raz on the way in
which the ‘normal justification thesis’ works.
• Himma, K. ‘Just ‘Cause You’re Smarter than Me Doesn’t Give You a
Right to Tell Me What to Do: Legitimate Authority and the Normal
Justification Thesis.’ (2007) 27 Oxford Journal of Legal Studies 121.
Roughly, Himma argues that the ‘pre-emptive’ nature of authoritative
directives cannot be justified by the normal justification thesis. Rather,
at least in the normal case, they at most justify giving authoritative
directives great weight; giving them pre-emptive weight is not justified
in light of the loss of autonomy involved.
You might also have a look at:
• Priel, D. ‘Trouble for Legal Positivism?’, (2006) 12 Legal Theory
225
which argues that moral considerations are the most plausible
candidates for the evaluative considerations that positivists
acknowledge underpin the identification of legal norms.

Chapter 9 Practical reason and law


In:
• Englerth, M. ‘Responsible Trimmings – the Political Case for the
Interest Theory of Rights’, UCL Jurisprudence Review, 2004, 105

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Markus Englerth provides a formidable challenge to Kramer’s


insistence on ‘formal’ and ‘logical’ accounts of rights. In his essay on the
‘interest’ theory of rights, Englerth argues that since ‘rights talk’ is
crucially important in political argument, it is very difficult to see how
it may be detached from ‘arguments of power distribution’.
In:
• Sen, A. ‘Elements of a Theory of Rights’ (2004) 32 Philosophy &
Public Affairs
Professor Amartya Sen, the Nobel Prize winner in economics, presents
a theory of rights linking all he says to the contemporary debates and
comments on the arguments used in them. Warning: it is a difficult
article and you need to take it very slowly. But it is full of insights.
A similar overview, but of the logic of rights with reference to
Hohfeld’s theory of rights, is:
• Wenar, L. ‘The Nature of Rights’, Philosophy & Public Affairs,
Vol.33, No.3, Summer 2005, 223.
An examination of the strengths and weaknesses of the ‘will’ and
‘interest’ theories of rights is provided in:
• Kramer, M. and H. Steiner, ‘Theories of Rights: Is There a Third
Way?’ (2007) 27 Oxford Journal of Legal Studies 281.

Chapter 10 Kelsen’s theory of law


For those interested in pursuing Kelsen in greater detail, two recent
essays can be found in:
• Endicott, T., J. Getzler and E. Peel (eds) Properties of Law. (Oxford:
Oxford University Press, 2006) [ISBN 0199290962]. The articles
are ‘J.W. Harris’s Kelsen’ by S. Paulson, and ‘Interpreting
Normativity’ by J. Dickson.
Duxbury has written a delightful short essay on Kelsen’s switch from
holding that the basic norm was a ‘presupposition’ of legal thinking to
a kind of ‘fiction’. See
• Duxbury, N. ‘Kelsen’s Endgame’ (2008) 67 Cambridge Law Journal
51.

Chapter 11 The integrity and interpretation of law


Ronald Dworkin has written a long and important article:
• Dworkin, R. ‘Hart’s Postscript and the Character of Legal
Philosophy’ Oxford Journal of Legal Studies, Vol.24, No.1, 2004.
Dworkin’s article makes remarks on Hart’s approach to jurisprudence
and focuses on how the infamous Postscript should be understood. In
particular, he repeats his line that Hartian legal philosophy, as
expounded in The Concept of Law, is best understood as a morally
committed construction of a conception of law that served certain
practical purposes. Another important discussion is to be found in
Dworkin’s development of the idea of legality (pp.23–37). Immediately
after this article in the same issue of the journal is one by David
Dyzenhaus taking up the same general theme (‘The Genealogy of Legal
Positivism’ p.39). Dyzenhaus argues here that the ‘positivist tradition’ is

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best understood as a political tradition that is at odds with the way in


which some contemporary positivists interpret that tradition. These
two articles are powerful, clear and readable and should not be missed.
In:
• Patterson, D. ‘Dworkin and the Semantics of Legal and Political
Concepts’, (2006) 26 Oxford Journal of Legal Studies 545
Patterson considers Dworkin’s treatment of concepts in the above
article and argues forcefully for the conclusion that it undermines his
theory of law as integrity. The argument is straightforward, and the
writing accessible.
In:
• Schauer, F. ‘The Social Construction of the Concept of Law: A
Reply to Julie Dickson’, Oxford Journal of Legal Studies, Vol.25,
No.3, Autumn 2005, 493 (see above, under ‘General’, in relation to
the article by Julie Dickson)
Schauer argues that there is no ‘fixed’ concept of law, only a shifting
variable which is chosen by reference to its instrumental value.
Although largely made up of essays published previously, Dworkin’s
most recent book:
• Dworkin, R. Justice in Robes (Harvard University Press, 2006)
[ISBN 9780674027275]
is worth looking at for the introduction. In this, the author lays out a
new series of ‘stages’ in which a theory of law is supposed to operate,
so as to guide judges when they decide cases. They are a ‘semantic
stage’, a ‘jurisprudential stage’, a ‘doctrinal stage’ and an ‘adjudicative
stage’. These stages would appear to refine or replace the pre-
interpretive, interpretive and post-interpretive stages described in Law’s
Empire.
Note should also be taken of:
• Endicott, T. ‘Adjudication and the Law’ (2007) 27 Oxford Journal
of Legal Studies 311, which looks again at the power of judges to
create law by imposing a new liability upon a defendant
• Green, L. 'Dworkin's Fallacy, Or What the Philosophy of Language
Can't Teach Us About the Law', (2003) 89 Virginia L Rev 1897
• Green, L. ‘Does Dworkin Commit Dworkin’s Fallacy’, (2008) 28
Oxford Journal of Legal Studies 33, which critically analyses the
semantic theory lying behind Dworkin’s interpretivism.

Chapter 12 Social theory and law


• Himma, K. ‘Do Philosophy and Sociology Mix? A Non-Essentialist
Socio-Legal Positivist Analysis of the Concept of Law’, Oxford
Journal of Legal Studies, Vol.24, No.4, 717
is a useful recant of the arguments about the relationship between
philosophy and sociology. It is a critical review of Brian Tamanaha’s
book A General Jurisprudence of Law and Society (Oxford: Oxford
University Press, 2001) [ISBN 0199244677].

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Chapter 14 Liberalism and law


• Shaver, R. ‘The Appeal of Utilitarianism’, Utilitas, Vol.16, No.3,
November 2004
is, if you can get hold of it, a nice account of what it is about
utilitarianism that continues to appeal even though it can be criticised
so readily. Shaver argues that it is because the theory places so very
much weight on welfare (happiness and well-being).

Chapter 15 Feminist legal theory


• Nussbaum, M. ‘On Hearing Women’s Voices: A Reply to Susan
Okin’, Philosophy & Public Affairs, Vol.32, No.2, 2004.
This article replies to an article by Okin in an economics journal
(Feminist Economics 2003) and it is not necessary to read the original
article (if indeed you could get hold of it) as Nussbaum provides a
good summary. Susan Moller Okin and Martha Nussbaum are among
the most distinguished feminists writing with theoretical rigour in
recent years.

Chapter 16 Critical legal studies


One of the perennnial questions about critical legal studies is whether
this intellectual movement has had its day. In recent years, new
interest has arisen in one of CLS’s intellectual origins, that of legal
realism. Those interested in pursuing this ‘realist revival’ should look
at:
• Leiter, B. Naturalizing Jurisprudence: Essays on American Legal
Realism and Naturalism in Legal Philosophy (Oxford: Oxford
University Press, 2007) [ISBN 9780199206490]
• Dagan, H. ‘The Realist Conception of Law’ (2007) 57 University of
Toronto Law Journal 607.