November 24, 2013
Functional explanations in positive (descriptive) legal theory
In the most recent installment of his very useful Legal Theory Lexicon, this one on functional explanations, Larry Solum (Georgetown) concludes by noting:
Let me conclude with a very short diatribe. Legal theorists need a basic understanding of positive legal theory. (I hope this is obvious to everyone!) That means that legal academics should, at a minimum, have a working familiarity with the general concepts of the methodology and theory of the social sciences, including basic ideas about the role of functionalist explanations. But almost no law schools (even the elite ones that train most academics) offer courses in the methodology of positive legal theory! That's bad. Real bad.
Of course, as Larry knows, many legal philosophers do not think positive theories are particularly relevant to philosophical questions, though I am not one of them. I do agree with his basic point that some grasp of foundational issues about the social sciences would be useful, including understanding methodological individualism vs. holism, the nature of functional explanations, and the relationship between functional and causal explanation. I will note that Michael Forster and I do teach a lot of this material in connection with teaching Marx in various seminars, including, again, this Winter Quarter (while we do use Elster, and some G.A. Cohen, we actually use a 1986 paper by Peter Railton on "Explanatory Asymmetry in Historical Materialism" (from Ethics) as the counterpoint to Elster, though Cohen ended up endorsing something like this view [I think]). Whether all law teachers should be required to have had a course in the methodology of the social sciences is a harder question, but it surely couldn't hurt!
November 21, 2013
Religious exemptions to the law
November 06, 2013
Speaking of the law of religious liberty......I was pleasantly surprised to have my work noted by an Elder of the Mormon Church. I'm glad we share "half a loaf" as he puts it!
October 18, 2013
Responsibility, Guilt, Punishment
I offer an interpretation of Nietzsche’s striking idea of “the innocence of becoming” (die Unschuld des Werdens), and offer a partial defense of its import, namely, that no one is ever morally responsible or guilty for what they do and that the so-called “reactive attitudes” are always misplaced. I focus primarily, though not exclusively, on the arguments as set out in Twilight of the Idols. First, there is Nietzsche’s hypothesis, partly psychological and partly historical or anthropological, that the ideas of “free” action or free will, and of responsibility for actions freely chosen or willed, were introduced primarily in order to justify punishment (“[m]en were considered ‘free’ so that they might be judged and punished”). Call this the Genetic Thesis about Free Will. Second, there is Nietzsche’s claim that the moral psychology, or “psychology of the will” as he calls it, that underlies this picture is, in fact, false—that, in fact, it is not true that every action is willed or that it reflects a purpose or that it originates in consciousness. Call these, in aggregate, the Descriptive Thesis about the Will. (Here I draw on earlier work.) Finally, there is articulation of a programmatic agenda, namely, to restore the “innocence of becoming” by getting rid of guilt and punishment based on guilt—not primarily because ascriptions of guilt and responsibility are false (though they are), but because a world understood as “innocent,” one understood in terms of “natural” cause and effect, is a better world in which to live. I thus try to explain and defend Zarathustra’s recommendation: “’Enemy’ you shall say, but not ‘villain’; ‘sick’ you shall say, but not ‘scoundrel’; ‘fool’ you shall say, but not ‘sinner.’” Nietzsche’s views are contrasted with those of important modern writers on these topics, including P.F. Strawson and Gary Watson.
Comments are welcome, thanks.
September 30, 2013
A public lecture on toleration in Newport......this Thursday, for any readers in the area who might be interested.
September 22, 2013
Oxford Studies in Philosophy of Law, volume 2...
...is now out, with new essays by Stephen Perry, Barbara Baum Levenbook, Matthew Kramer, Bruno Celano, Michael Giudice, R.A. Duff, C.L. Ten, Hanoch Sheinman, and Luis Duarte D'Almeida. The volumes covers topics in general jurisprudence, as well as the philosophy of criminal law, international law, and contracts, among other topics. Perry's important paper has already commanded attention from jurisprudential scholars.
I'm also pleased to report that John Gardner, the Professor of Jurisprudence at Oxford, will join Leslie Green and me as co-editors of volume 3.
September 10, 2013
"The Methodology of Legal Philosophy"The essentially final (and citable) version of this paper (co-authored with Alex Langlinais) is now on-line.
September 09, 2013
Why Legal Positivism (Again)?I gave a very short talk on this topic at the AALS a few years ago, but this new draft paper is a much expanded and more systematic discussion, given as a keynote address in August for the annual meeting of the Australasian Society of Legal Philosophy in Sydney. I hope it will interest some readers, and I would especially encourage those outside general jurisprudence but with some interest in the philosophy of law to take a look, since I hope it clears up some common confusions about positivism and about Dworkin's theory of law. It would be particularly salutary for constitutional theorists to realize that no positivist theory of law denies the relevance of moral considerations to the adjudication of hard cases!
August 09, 2013
Light blogging the rest of August
Back in March, it was the "South American tour" (Buenos Aires and Rio de Janeiro), and for the rest of this month, it will be the Australasian tour, including two events in Sydney, and two in New Zealand, North and South Islands, as well as some vacation. Dan may have some items (and Mike Simkovic might too), and I may even get in one or two, but regular blogging will resume near the end of the month.
Because I will be travelling I would advise readers not to e-mail me bloggable items until the end of August. Thanks.