Preface
Contents
Contributors
Introduction
References
Part I: Methodological Questions
On the Concept of the Concept of Law
1 Foreword
2 The Diversified Quest for the Concept of Law
3 Varieties of Conceptual Analysis
References
Scope and Limits of General and Descriptive Legal Theories
1 Introduction
2 A General and Descriptive Theory of Our Concept of Law
3 Difficulties of General and Descriptive Legal Theories
3.1 Could It Be General a Theory That Merely Analyzes Our Concept of Law?
3.2 Is It Possible for a Theory to Seek the Nature or Essence of a Purely Contingent Practice?
3.3 Could a Theory That Uses Evaluative Judgments Be Descriptive?
3.4 Is It Possible to Describe a Normative Practice Such as Law, in Morally Neutral Terms?
3.5 What Is the Interest in Developing a Descriptive Theory of a Highly Normative Phenomenon?
3.6 Apart from Being Descriptive, Can Analytical Jurisprudence Also Be Prescriptive?
3.7 Does Only a Unique Concept of Law Exist in Our Practice?
3.8 Why Should We Analyze the Concepts of our Practice and Not Just the Practice Itself?
4 Which Criteria Dictate That One Theory of Law Is Better Than Another?
5 Conclusion
References
Method Matters: Non-normative Jurisprudence and the Re-mystification of the Law
1 Conceptual Clarity and Hartian Jurisprudence
2 Demystification and Hart´s `Double Ground´´
3 Exposing Vulnerabilities: Descriptive Jurisprudence and the Problem of Counterexamples
4 The Idea of a Rule: After Dworkin
5 Faith in Method
6 Normativity and Value-Neutrality: Drawing the Battle Lines
References
Part II: Legal Systems and Their Coercive Power
A Positivist Foundation of the Legal System: Popular Sovereignty as a Social Convention or Social Rule
1 Introduction
2 Positivist Popular Sovereignty
3 Conventions (in Legal Theory and Beyond)
3.1 Rules of Recognition: Social Conventions According to Hart
3.2 Beyond Hart: Lewis, Marmor and more
3.2.1 Coordination Problems and Arbitrariness
4 Popular Sovereignty: A Convention?
4.1 Is There a Regularity in the Behaviour of a Population?
4.2 Do Almost All Members of that Population Treat the Legal System as Authoritative?
4.3 Do Almost All Members of That Population Expect Almost All Other Members to do the Same?
4.4 Is the Regularity Arbitrary?
5 Alternatives
6 Conclusion
References
On Law and Force
1 The Law´s Point
2 A Matter of Sanctions?
3 A Hermeneutical Concept
References
The Good, the Bad, and the Puzzled: Coercion and Compliance
1 Introduction
2 The Tale of the Bad Man
2.1 The Search for the Bad
3 Enter the Puzzled
3.1 Covenants Without Swords
3.2 Expressive Powers and the Role of Expectations
4 Conclusion
References
Part III: Law and Morality
Does Hart´s Postscript Provide a Plausible Path to Inclusive Legal Positivism?
1 Introduction
2 The Dilemma
3 Objective Standing and Reasons for Action
4 Conclusion
References
Law as an Expression of Adopted Justice
1 Introduction
2 On Natural Law Jurisprudence
3 Critical Notes on Natural Law Jurisprudence
4 On Positivistic Jurisprudence
5 Critical Notes on Positivistic Jurisprudence
6 A Fresh Start: On the Relationship Between Law and Morals in the Frames of Legal Knowledge
7 Conclusions
References
Milgram and Hart on Resisting Oppressive Regimes
1 Introduction
2 Hart´s Resistance Argument Revisited
2.1 Hart´s Formulation
2.2 The Moderate Version
3 Milgram´s Studies on Obedience
3.1 The Experiment
3.2 Relevance for Jurisprudence
3.3 Milgram´s Experiments Support for a Moderate Resistant Argument (MRA)
4 Possible Objections
4.1 Interpreting Milgram´s Result
4.2 Does Milgram´s Experiments Support the Separability Thesis?
5 Conclusion
References
The Concept of Law in Legal Ethics: Towards a New Perspective
1 Introduction: A Brief Inquiry into the Legal Ethics Jurisprudence
2 The Rise of the Dominant Jurisprudential View: Lawyers as Maximizers of Their Client´s Interests
3 Challenging the Standard View´s Account of Legal Ethics: The Moralistic Approach and the Dworkinian Legal Ethics
4 Grounding Legal Ethics in Law´s Authority
5 Some Critics to the Positivist Approach of Lawyering
6 Beyond the Bare Fidelity to the Law: A Different Advocacy Model
References
Part IV: Law, Normativity and Practical Reason
Hard Cases and Legal Validity: The Internal Moral Significance of Law
1 Introduction
2 Riggs v. Palmer
3 The Distinctive Features of Law
4 Law as the Union of Primary and Secondary Rules
5 Independence
6 Riggs Revisited
7 Conclusion
References
Between Authority and Interpretation: The Scope of Morality in Raz´s Account of Law
1 Introduction
2 Raz´s Core Theses of Law
2.1 Legal Norms as Exclusionary Reasons
2.2 Legal Systems as Exclusionary Systems
3 Raz On Legal Reasoning
3.1 Raz On Legal Interpretation
3.1.1 The Room for Changing the Law
3.1.2 Innovative Interpretation Everywhere
3.2 Raz On Judicial Adjudication
4 Conclusion
References
Not Everything Is Normativity: A Critique to Plunkett and Shapiro´s Account of General Jurisprudence
1 Introduction
2 Plunkett and Shapiro´s Account
2.1 General Jurisprudence as a Branch of Metanormative Inquiry
2.2 Theoretical Commitments
3 Jurisprudes That Are Not Jurisprudes
3.1 American Legal Realism
3.2 Jurisprudes That Are Not Jurisprudes (II): The Imperative Theory of Law
3.3 Jurisprudes That Are Not Jurisprudes (III): Genoese Legal Realism
3.4 The Dilemma
4 Not Everything Is Normativity: Detached Legal Statements
5 Conclusion
References
Part V: New Theoretical Approaches
Law´s Virtual Empires: Game Analogies and the Concept of Law
1 Introduction
2 From Chess to MMORPGs
2.1 Theorising theDigital Real´
2.2 Modelling the Interaction Between Discrete Systems of Rules (or Rules in Discrete Systems)
2.3 Modern Agency (Are We All Avatars Now?)
2.4 Technically-Mediated Acts-in-the-Law
3 Validity in Law and in Games
3.1 Law, Games, and Playing for Keeps
3.2 Law, Games, and the Shades of Normativity
3.3 Games and Law as Worlds of Fiction
4 Conclusion
References
The Foundations of Legal Constructivism
1 Introduction
2 The Motivation: Law and Reality
3 Epistemic Constructivism
4 From Epistemic Constructivism to Legal Constructivism
5 Legal Constructivism: Definition, Epistemic Foundations and Comparisons
6 The Central Elements of Legal Constructivism
6.1 Definition of Social Reality
6.2 Concepts from Cognitive Sciences
6.3 Concepts from Complexity Sciences
6.4 Concepts from Linguistic Philosophy
7 Legal Constructivism as a Substantive Theory of Law
7.1 The Connectionist Theory of the Legal System
7.2 Theory of Normative Constructs
7.3 Theory of Legal Mental Models
7.4 Theory of Legal Effectiveness as Institutional Legal Facts of Emerging Dynamics
7.4.1 Legal Constructivism and Institutionalism
7.4.2 The Role of Citizens (the Forgotten Explanandum)
8 The Method of Legal Constructivism as Action-Research
9 The Concept of Law Revisited
References
